exv10w1






Exhibit 10.1




			
	 	 	 
	DATED
	 	 27 October 2009






COEUR ALASKA INC.

(as Borrower)




THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1

(as Original Lenders)




CREDIT SUISSE

(as Arranger)




CREDIT SUISSE

(as Security Agent)




CREDIT SUISSE

(as Facility Agent)




-and-




CREDIT SUISSE

(as Hedge Provider)




TERM FACILITY

AGREEMENT

relating to

US$45 million secured financing




 









 





CONTENTS




	 	 	 	 	 	 	 
	1.	 	DEFINITIONS AND INTERPRETATION
	 	 	1	 
	 	 	 
	 	 	 	 
	2.	 	THE FACILITY
	 	 	25	 
	 	 	 
	 	 	 	 
	3.	 	PURPOSE AND USE OF PROCEEDS
	 	 	25	 
	 	 	 
	 	 	 	 
	4.	 	CONDITIONS OF UTILISATION
	 	 	26	 
	 	 	 
	 	 	 	 
	5.	 	UTILISATION
	 	 	27	 
	 	 	 
	 	 	 	 
	6.	 	REPAYMENT
	 	 	28	 
	 	 	 
	 	 	 	 
	7.	 	PREPAYMENT AND CANCELLATION
	 	 	29	 
	 	 	 
	 	 	 	 
	8.	 	INTEREST
	 	 	31	 
	 	 	 
	 	 	 	 
	9.	 	INTEREST PERIODS
	 	 	33	 
	 	 	 
	 	 	 	 
	10.	 	CHANGES TO THE CALCULATION OF INTEREST
	 	 	33	 
	 	 	 
	 	 	 	 
	11.	 	FEES
	 	 	34	 
	 	 	 
	 	 	 	 
	12.	 	TAX GROSS-UP AND INDEMNITIES
	 	 	35	 
	 	 	 
	 	 	 	 
	13.	 	INCREASED COSTS
	 	 	38	 
	 	 	 
	 	 	 	 
	14.	 	OTHER INDEMNITIES
	 	 	39	 
	 	 	 
	 	 	 	 
	15.	 	MITIGATION
	 	 	41	 
	 	 	 
	 	 	 	 
	16.	 	COSTS AND EXPENSES
	 	 	41	 
	 	 	 
	 	 	 	 
	17.	 	REPRESENTATIONS
	 	 	42	 
	 	 	 
	 	 	 	 
	18.	 	INFORMATION UNDERTAKINGS
	 	 	50	 
	 	 	 
	 	 	 	 
	19.	 	INSURANCE
	 	 	54	 
	 	 	 
	 	 	 	 
	20.	 	FINANCIAL COVENANTS
	 	 	56	 
	 	 	 
	 	 	 	 
	21.	 	PROJECT UNDERTAKINGS
	 	 	59	 
	 	 	 
	 	 	 	 
	22.	 	GENERAL UNDERTAKING
	 	 	63	 
	 	 	 
	 	 	 	 
	23.	 	ACCOUNTS AND PAYMENT WATERFALL
	 	 	67	 
	 	 	 
	 	 	 	 
	24.	 	EVENTS OF DEFAULT
	 	 	72	 
	 	 	 
	 	 	 	 
	25.	 	CHANGES TO THE LENDERS
	 	 	78	 
	 	 	 
	 	 	 	 
	26.	 	CHANGES TO THE OBLIGORS
	 	 	81	 






 









 






	 	 	 	 	 	 	 
	27.	 	ROLE OF THE ADMINISTRATIVE PARTIES
	 	 	81	 
	 	 	 
	 	 	 	 
	28.	 	CONDUCT OF BUSINESS BY THE FINANCE PARTIES
	 	 	87	 
	 	 	 
	 	 	 	 
	29.	 	SHARING AMONG THE FINANCE PARTIES
	 	 	88	 
	 	 	 
	 	 	 	 
	30.	 	PAYMENT MECHANICS
	 	 	89	 
	 	 	 
	 	 	 	 
	31.	 	SET-OFF
	 	 	92	 
	 	 	 
	 	 	 	 
	32.	 	NOTICES
	 	 	92	 
	 	 	 
	 	 	 	 
	33.	 	CALCULATIONS AND CERTIFICATES
	 	 	94	 
	 	 	 
	 	 	 	 
	34.	 	PARTIAL INVALIDITY
	 	 	95	 
	 	 	 
	 	 	 	 
	35.	 	REMEDIES AND WAIVERS
	 	 	95	 
	 	 	 
	 	 	 	 
	36.	 	AMENDMENTS AND WAIVERS
	 	 	95	 
	 	 	 
	 	 	 	 
	37.	 	COUNTERPARTS
	 	 	96	 
	 	 	 
	 	 	 	 
	38.	 	GOVERNING LAW
	 	 	96	 
	 	 	 
	 	 	 	 
	39.	 	ENFORCEMENT
	 	 	96	 
	 	 	 
	 	 	 	 
	SCHEDULE 1	 	 	98	 
	 	 	 
	 	 	 	 
	 	 	Original Lenders
	 	 	98	 
	 	 	 
	 	 	 	 
	SCHEDULE 2	 	 	99	 
	 	 	 
	 	 	 	 
	 	 	Conditions precedent
	 	 	99	 
	 	 	 
	 	 	 	 
	SCHEDULE 3	 	 	103	 
	 	 	 
	 	 	 	 
	 	 	Utilisation Request
	 	 	103	 
	 	 	 
	 	 	 	 
	SCHEDULE 4	 	 	105	 
	 	 	 
	 	 	 	 
	 	 	Information package
	 	 	105	 
	 	 	 
	 	 	 	 
	SCHEDULE 5	 	 	106	 
	 	 	 
	 	 	 	 
	 	 	Form of Transfer Certificate
	 	 	106	 
	 	 	 
	 	 	 	 
	SCHEDULE 6	 	 	108	 
	 	 	 
	 	 	 	 
	 	 	Security Provisions
	 	 	108	 
	 	 	 
	 	 	 	 
	SCHEDULE 7	 	 	111	 
	 	 	 
	 	 	 	 
	 	 	Final Completion Certificate
	 	 	111	 
	 	 	 
	 	 	 	 
	SCHEDULE 8	 	 	112	 






 









 






	 	 	 	 	 
	Capital Equipment Leases
	 	 	112	 
	 
	 	 	 	 
	SIGNATURES
	 	 	113	 







 











 





			
	THIS AGREEMENT is made on
	 	27 October 2009






BETWEEN





	(1)	 	COEUR ALASKA INC., a company incorporated in the State of Delaware of
the United States of America, acting through its office at 505 Front Avenue, Coeur
d’Alene, ID 83814, United States, as borrower (the “Borrower”);
	 
	(2)	 	THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 (Original Lenders), as lenders (in
this capacity, each an “Original Lender”);
	 
	(3)	 	CREDIT SUISSE, a banking institution incorporated under the laws of Switzerland,
acting through its office at Paradeplatz 8, 8001 Zurich, Switzerland as arranger of the
Facility (in this capacity, the “Arranger”);
	 
	(4)	 	CREDIT SUISSE, as security agent of the Finance Parties (in this capacity, the
“Security
Agent”); and
	 
	(5)	 	CREDIT SUISSE, as facility agent of the Finance Parties (in this capacity,
the “Facility
Agent”); and
	 
	(6)	 	CREDIT SUISSE, as hedge provider to the Borrower (in this capacity, the
“Hedge
Provider”).





IT IS AGREED:





	1.	 	DEFINITIONS AND INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	In this Agreement:
	 
	 	 	“Account Bank” means the Facility Agent in its capacity as account bank for
the Debt Service Reserve Account, the Loan Account and the Proceeds Account;
	 
	 	 	“Administrative Party” means an Agent or the Arranger;
	 
	 	 	“Affiliate” means, in relation to any person, a Subsidiary of that person or
a Parent Undertaking of that person or any other Subsidiary of that Parent
Undertaking;
	 
	 	 	“Agent” means the Facility Agent or the Security
Agent;
	 
	 	 	“Applicable Permit” shall mean at any time any Permit that is necessary to be obtained by
or on behalf of the Borrower at such time in light of the stage of development,
construction or operation of the Project to enable the Borrower to construct, test,
operate, maintain, repair, own its interest in or use the Project;
	 
	 	 	“Approved Contractors” means Alaska Interstate Construction, Alcan, Knight
Piesold, Tetratech, Amec, Golder, PND and R&M or any other contractor as the Facility
Agent may approve from time to time, acting reasonably;
	 
	 	 	“Approved Insurer” means Munich Re, Zurich, Arch, Swiss Re or any other insurer as the

Facility Agent may approve from time to time, acting
reasonably;




1









 













“Approved Offtaker” means The Rand Refinery, Barrick Goldstrike, Xstrata,
Penoles, Aurubis, Umicore, Dowa, Sumitomo, Mitsubishi International Corporation
and Minmetals and any other Offtakers approved from time to time by the Facility Agent,
acting reasonably;




“Authorisation” means an authorisation, consent, approval, resolution, license,
exemption, filing, notarisation, order, or registration and, if the same is conditional,
the compliance with all the conditions stipulated therein;




“Authorised Officer” means in respect of any Obligor, any director, attorney, the
president, chief financial officer or company secretary, or any other person from time to
time authorised by directors’ resolution (a certified copy of which is delivered
to the Facility Agent) or nominated by any Obligor by a written notice to the
Facility Agent, as an authorised officer to sign notices or documents on its behalf in
connection with any of the Finance Documents;




“Authorised Recipient” means:




	 	(a)	 	any Finance Party;
	 
	 	(b)	 	any Affiliate, head office or branch of a
Finance Party;
	 
	 	(c)	 	any employee, officer, representative or adviser of a
Finance Party (or any other person providing professional services to a Finance
Party which is required to receive any information in relation to any Finance
Document);
	 
	 	(d)	 	any agent or independent contractor of a Finance Party which is
under a contractual obligation of confidentiality to that Finance Party;
	 
	 	(e)	 	a party which is, or could reasonably be expected to be,
an assignee, novatee, transferee or participant (or any agent or adviser of any of
the foregoing) in relation to all or any of a Finance Party’s rights and/or
obligations under any Finance Document;
	 
	 	(f)	 	any person with (or through) whom (or any agent or adviser of any
such person) a Lender enters into (or shows a demonstrable intention to
enter into) any sub- participation in relation to this Agreement or any Obligor
or in relation to any other transaction under which payments are to be made by
reference to this Agreement or any Obligor;
	 
	 	(g)	 	any rating agency, insurer or insurance broker of, or any direct or
indirect provider of credit protection to, a Finance Party;
	 
	 	(h)	 	any regulatory, supervisory or Governmental Authority which has jurisdiction
over a
Finance Party;
	 
	 	(i)	 	any Obligor or any shareholder of an
Obligor;
	 
	 	(j)	 	any person permitted by any
Obligor;
	 
	 	(k)	 	any person who is succeeding (or shows a demonstrable intention to
succeed) an
Agent in such capacity;
	 
	 	(l)	 	any person to whom a Finance Party is required by Law,
regulation or competent court or tribunal to make disclosure; or





2









 











	 	(m)	 	any person to whom a Finance Party is under a legal duty to disclose or,
where such person is a regulatory authority, which has requested such disclosure in
compliance with any regulation,






provided that, in relation to paragraphs (d), (e) and (f) above, the person
to whom the information is to be given has entered into a Confidentiality Undertaking;




“Availability Period” means the period from and including the Conditions
Precedent Satisfaction Date to and including 1 November 2010, unless otherwise extended
by agreement between the Borrower and the Facility Agent (acting on the instructions of
all Lenders);




“Available Commitment” means a Lender’s Commitment minus:




	 	(a)	 	the amount of its participation in any outstanding Loans; and
	 
	 	(b)	 	in relation to any proposed Utilisation, the amount of its
participation in the Loans that are due to be made on or before the proposed
Utilisation Date;






“Available Facility” means the aggregate for the time being of each Lender’s
Available
Commitment;




“Base Currency” means US Dollars;




“Base Currency Amount” means in relation to a Utilisation, the amount
specified in the Utilisation Request delivered by a Borrower for that Utilisation (or,
if the amount requested is not denominated in the Base Currency, that amount converted
into the Base Currency at the Spot Rate of Exchange on the date which is three Business
Days before the Utilisation Date or, if later, on the date the Agent receives the
Utilisation Request in accordance with the terms of this Agreement) as adjusted to
reflect any repayment, prepayment, consolidation or division of a Utilisation;




“Benefit Plan” shall mean any employee pension benefit plan (other than a Multiemployer
Plan) that is a defined benefit plan, as defined in section 3(35) of ERISA, and that is
subject to the provisions of Title IV of ERISA or section 412 of the Code or section 307
of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would under section 4069 of ERISA be deemed to be) an
“employer” as defined in section 3(5) of ERISA;




“Borrower Change of Control” means any event or circumstance whereby the
Guarantor ceases to Control the Borrower;




“Borrower Change of Ownership” means any event or circumstance whereby
the Guarantor ceases to own, legally and beneficially, 100 per cent of the
Borrower’s issued shared capital; save where:




	 	(a)	 	the Guarantor thereafter continues to own, legally and
beneficially, more than 75 per cent of the Borrower’s issued shared capital;
	 
	 	(b)	 	the Facility Agent has given its prior written consent to such
change (such consent not to be unreasonably withheld or delayed); and
	 
	 	(c)	 	the Facility Agent has approved (acting reasonably) the
terms of the relevant agreement with the incoming shareholders;




3









 













“Borrower Funds” means any amounts invested in or paid to the Borrower by the
Guarantor by way of equity or fully subordinated debt and credited to the Proceeds
Account;




“Borrower Security Agreement” means the security agreement, in form and
substance satisfactory to the Security Agent, pursuant to which the Borrower has granted
a first priority security interest in all of its personal property for the benefit of the
Security Agent (on behalf of the Finance Parties) as security for the discharge of the
Secured Liabilities;




“Break Costs” means the amount (if any) by which:




	 	(a)	 	the interest (excluding Margin) which a Lender should have received
for the period from the date of receipt of all or any part of its participation in
the Loan or Unpaid Sum to the last day of the current Interest Period in respect of
the Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on
the last day of that Interest Period;






exceeds:




	 	(b)	 	the amount which that Lender would be able to obtain, such amount to
be determined on the basis of the Screen Rate, by placing an amount equal to the
principal amount or Unpaid Sum received by it on deposit with a leading
bank in the Relevant Interbank Market for a period starting on the
Business Day following receipt or recovery and ending on the last day of the
current Interest Period;






“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for
general business in:




	 	(a)	 	in relation to determination of a Quotation Day, Zurich and
London; and
	 
	 	(b)	 	for all other purposes, Zurich and New
York;






“Capex Budget” means the itemised and timed budget for the
construction of the Construction Project, detailing the Borrower’s projected
Construction Costs from the date of this Agreement up to Final Completion, as initialled
for the purposes of identification by the Borrower and delivered to the Facility
Agent pursuant to paragraph 4 of schedule 2 (Conditions precedent);




“Capital Equipment Leases” means the leases and hire purchase contracts for
capital equipment used on the Project which have been entered into or are to be entered
into after the date of this Agreement and which constitute Finance Leases for US GAAP,
being those set out in schedule 8 (Capital Equipment Leases);




“Code” shall mean the Internal Revenue Code of 1986, as amended;




“Co-Funding Commencement Date” means the first Business Day of the Availability
Period;




“Collateral” means all property and assets of the Borrower, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document;



4









 






“Commitment”
means:




	 	(a)	 	in relation to an Original Lender, the amount set opposite its name
under the heading “Commitment” in schedule 1 (Original Lenders) and the
amount of any other Commitment transferred to it under this Agreement; and
	 
	 	(b)	 	in relation to any other Lender, the amount of any
Commitments transferred to it under this Agreement,






to the extent not cancelled, reduced or transferred by it under this
Agreement;




“Conditions Precedent Satisfaction Date” means the date upon which the Facility
Agent gives written confirmation to the Borrower that it has received (or waived the
requirement to receive, in whole or in part) all of the documents and/or
evidence set out in schedule 2 (Conditions Precedent) in each case in form and
substance satisfactory to the Facility Agent;




“Confidentiality Undertaking” means a confidentiality undertaking substantially in a form
recommended for the time being by the LMA for such purpose or in any other form agreed
between the Borrower and the Facility Agent;




“Construction Contracts” means all contracts and other agreements entered into
between the Borrower and any Approved Contractors in relation to the Construction
Project;




“Construction Costs” means all payments to be made to Approved Contractors and
other consultants in respect of construction work on the Construction Project;




“Construction Project” means the construction of infrastructure on the Site to
enable the Life of Mine Plan to be implemented (including without limitation the
Tailings Facility and the Paste Facility);




“Control” means, in relation to a company, any person or persons acting in
concert:




	 	(a)	 	controlling or being able to control (whether directly or
indirectly) the composition of the board of directors or management board of that
company;
	 
	 	(b)	 	in accordance with whose directions a majority of the
members of the board of directors or management board of that company are or
become accustomed to act; or
	 
	 	(c)	 	able to direct (whether directly or indirectly) the affairs of
that company;






“Controlled Group” shall mean all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which,
together with the Borrower, are treated as a single employer under section
414(b) or 414(c) of the Code;




“Debt Service Reserve Account” means the US Dollar denominated account (account
no

0835-1170990-62 designation “Coeur Alaska Inc. —  Debt Service Reserve
Account”)
established by the Borrower in Zurich, Switzerland with the Account Bank (and
any sub- account or substitute account from time to time);




“Debt Service Reserve Account Charge” means the account charge governed by Swiss law
dated on or around the same date as this Agreement given by the Borrower for the benefit
of
the Security Agent on behalf of the Finance Parties pursuant to which a charge is created
over the Debt Service Reserve Account as security for the discharge of the Secured
Liabilities;



5









 






“Deed of Trust” means the deed of trust deed to be granted by the Borrower in
favour of the Security Agent comprising Security over the Property Rights (including the
Mineral Rights) as more particularly set out therein;




“Default” means an Event of Default or any event or circumstance specified in
clause 24 (Events of Default) which would (with the expiry of a grace period or other
lapse of time, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event of Default;




“Delegate” means any delegate, agent, or attorney appointed by the Security
Agent;




“Disruption Event” means either or both of:




	 	(a)	 	a material disruption to those payment or communications
systems or to those financial markets which are, in each case, required to
operate in order for payments to be made in connection with the Facility (or
otherwise in order for the transactions contemplated by the Finance
Documents to be carried out) which disruption is not caused by, and is
beyond the control of, any of the Parties; or
	 
	 	(b)	 	the occurrence of any other event which results in a
disruption (of a technical or systems-related nature) to the treasury or
payments operations of a Party preventing that, or any other Party:






	 	(i)	 	from performing its payment obligations under the Finance Documents; or
	 
	 	(ii)	 	from communicating with other Parties in accordance with the terms of
the
Finance Documents,






	 	 	 	and which (in either such case) is not caused by, and is beyond the
control of, the
Party whose operations are disrupted;






“Easements” shall mean the easements appurtenant, easements in gross, license agreements
and other rights running in favour of the Borrower and/or appurtenant to the Site,
including without limitation those certain easements and licenses described in the Title
Policy;




“Eminent Domain Proceeds” shall mean all amounts and proceeds (including instruments)

received in respect of any Event of Eminent
Domain;




“Environmental Claim” shall mean any and all liabilities, losses, administrative,
regulatory or judicial actions, suits, written demands, decrees, written claims, liens,
judgments, warning notices, notices of noncompliance or violation, governmental
investigations, governmental proceedings, removal or remedial actions, orders, or
damages (foreseeable and unforeseeable, including consequential and punitive damages),
penalties, fees, out-of-pocket costs, expenses, disbursements, attorneys’ or consultants’
fees, relating in any way to any Environmental Law or any Permit issued under any such
Environmental Law (hereafter “Claims”), including (a) any and all Claims by
Governmental Authorities for enforcement, investigation, cleanup, removal, response,
remedial or other actions or fines, penalties or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or injunctive
relief resulting from Hazardous Substances or arising from alleged injury or
threat of injury to human health and safety or the environment under any
Environmental Law;




“Environmental Law” shall mean any federal, state or local Law relating to the protection
of the environment, natural resources, human health and safety, including the Clean Air
Act,



6









 






the Comprehensive Environmental Response, Compensation and Liability Act,
the Federal Water Pollution Control Act, the Resource Conservation and Recovery Act of
1976, the Safe Drinking Water Act, the Toxic Substances Control Act, the
Hazardous & Solid Waste Amendments Act of 1984, the Superfund Amendments and
Reauthorization Act of 1986, the Hazardous Materials Transportation Act, the Oil
Pollution Act of 1990, the Emergency Planning and Community Right-to-Know Act, the
Atomic Energy Act of 1954, the Federal Insecticide, Fungicide, and Rodenticide Act of
1972, the Occupational Safety and Health Act, the Atomic Energy Act of 1954, the Surface
Mining Control and Reclamation Act of 1974, the Uranium Mill Tailings Radiation
Control Act of 1978, and any federal, state and local Laws, rules or regulations
implementing or comparable to the foregoing requirements, as the same has been or may be
amended or supplemented;




“ERISA Event” shall mean:




	 	(a)	 	any “reportable event”, as defined in section 4043 of ERISA or the
regulations issued thereunder, with respect to a Benefit Plan (other than an event
for which the 30-day notice period is waived);
	 
	 	(b)	 	the existence with respect to any Benefit Plan of an “accumulated
funding deficiency” (as defined in section 412 of the Code or section 302
of ERISA), whether or not waived;
	 
	 	(c)	 	the filing pursuant to section 412(d) of the Code or section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with respect
to any Benefit Plan;
	 
	 	(d)	 	the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of
any Benefit Plan or the withdrawal or partial withdrawal of the Borrower or any
of its ERISA Affiliates from any Benefit Plan or Multiemployer Plan;
	 
	 	(e)	 	the receipt by the Borrower or any of its ERISA Affiliates from the
PBGC or a plan administrator of any notice relating to the intention to terminate
any Benefit Plan or Benefit Plans or to appoint a trustee to administer any Benefit
Plan;
	 
	 	(f)	 	the adoption of any amendment to a Benefit Plan that would require
the provision of security pursuant to section 401(a)(29) of the Code or section 307
of ERISA;
	 
	 	(g)	 	the receipt by the Borrower or any of its ERISA Affiliates of any
notice, or the receipt by any Multiemployer Plan from the Borrower or any of its
ERISA Affiliates of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganisation, within the meaning of Title IV of ERISA;
	 
	 	(h)	 	the occurrence of a “prohibited transaction” with respect to which
the Borrower is a “disqualified person” (within the meaning of section 4975
of the Code) or with respect to which the Borrower could otherwise be liable; or
	 
	 	(i)	 	any other event or condition with respect to a Benefit Plan or
Multiemployer Plan that could reasonably be expected to result in liability of the
Borrower;






“ERISA Plan” shall mean any employee benefit plan (a) maintained by the Borrower or any
member of the Controlled Group, or to which any of them contributes or is
obligated to



7









 






contribute, for its employees, and (b) covered by Title IV of ERISA or to which
section 412 of the Code applies;




“Event of Default” means any event or circumstance specified as such in clause 24 (Events
of Default) (excluding clause 24.26 (Acceleration));




“Event of Eminent Domain” shall mean any compulsory transfer or
taking by condemnation, eminent domain or exercise of a similar power, or transfer
under threat of such compulsory transfer or taking, of any part of the
Collateral, by any agency, department, authority, commission, board, instrumentality
or political subdivision of the State of Alaska, the United States or another
Governmental Authority having jurisdiction;




“Existing Lender” has the same meaning given to the term in clause 25.1 (Assignments and
transfers by the Lenders);




“Facility” means the term loan facility made available under this Agreement as described
in clause 2 (The Facility);




“Facility Guarantee” means a guarantee and indemnity to be entered into by the Guarantor
in favour of the Security Agent in respect of the Borrower’s obligations
under the Finance Documents on or around the date of this Agreement;




“Facility Office” means the office or offices notified by a Lender to the Facility Agent
in writing on or before the date it becomes a Lender (or, following that date, by not
less than five Business Days’ written notice) as the office or offices through which it
will perform its obligations under this Agreement;




“Fee Letter” means any letter dated on or about the date of this Agreement between one or
more Finance Parties and the Borrower setting out any of the fees referred to in
clause 11 (Fees);




“Final Completion” means the achievement of the criteria for completion of the
Project, including the following:




	 	(a)	 	the physical facilities and equipment (including, without
limitation, the Tailings Facility, the Paste Facility and the water treatment
plant) have been installed and have become operational, including sufficient capital
spares and inventory;
	 
	 	(b)	 	the Borrower has accepted delivery, installation and
provision of all material equipment and services to be provided under
contract for the Life of Mine Plan (unless rejected by the Borrower acting in
good faith);
	 
	 	(c)	 	the Borrower has paid all amounts due and owing to
contractors, trades and other persons providing goods and services to the
Construction Project, except for such amounts as will be contested by the
Borrower in good faith and by appropriate proceedings;
	 
	 	(d)	 	the
Borrower is:






	 	(i)	 	in compliance with all payment covenants and Financial Covenants; and
	 
	 	(ii)	 	in material compliance with all other
covenants,






	 	 	 	in each case as set forth in the Finance
Documents;




8









 












	 	(e)	 	the Life of Mine Plan is substantially
achievable; and
	 
	 	(f)	 	delivery of the Final Completion Certificate to the
Facility Agent,






and which completion is scheduled for 28 February
2011;




“Final Completion Certificate” means a certificate duly signed in one or more
counterparts by an Authorised Officer of the Borrower and an Authorised Recipient of the
Facility Agent, substantially in the form of schedule 7;




“Final Completion Date” means the first Business Day immediately following the day on
which the Facility Agent has received the Final Completion Certificate; provided,
however, that the Final Completion Date may not occur on any date on a Default has
occurred and is continuing;




“Final Completion Default Date” means 30 April 2011 or such later date as may be agreed
to by the Facility Agent in writing (in its absolute discretion);




“Final Maturity Date” means the date that is the fifth anniversary after the Utilisation
Date;




“Finance Document” means:




	 	(a)	 	this Agreement;
	 
	 	(b)	 	any Fee
Letter;
	 
	 	(c)	 	any Security
Document;
	 
	 	(d)	 	the Hedging Strategy
Letter;
	 
	 	(e)	 	any Hedging
Arrangement;
	 
	 	(f)	 	any subordination agreement or other document which has the effect
of subordinating any borrowing or other indebtedness owed by the Borrower to the
Guarantor (or any Subsidiary of the Guarantor); and
	 
	 	(h)	 	any other document designated as such from time to time by the
Facility Agent and the Borrower,






provided that where the term “Finance Document” is used in, and construed for the
purposes of this Agreement, each Hedging Arrangement shall be a Finance
Document only for the purposes of:




	 	(a)	 	the definition of
“Default”;
	 
	 	(b)	 	the definition of “Material Adverse
Effect”;
	 
	 	(c)	 	the definition of “Secured
Liabilities”;
	 
	 	(d)	 	paragraph (a)(vi) of clause 1.3
(Interpretation);
	 
	 	(e)	 	clause 24 (Events of Default) (other than clause 24.26
(Acceleration));
	 
	 	(f)	 	clause 27.1 (Appointment of the Agents); and




9









 












	 	(g)	 	clause 31
(Set-off); and
	 
	 	(h)	 	schedule 6 (Security
Provisions);






“Finance Party” means an Administrative Party or a Lender or the Hedge Provider and the
term “Finance Parties” shall mean all of them, provided that where the term “Finance
Party” is used in, and construed for the purposes of, this Agreement, the Hedge Provider
shall be a Finance Party only for the purposes of:




	 	(a)	 	the definition of “Secured
Liabilities”;
	 
	 	(b)	 	the definition of “Authorised
Recipient”;
	 
	 	(c)	 	paragraph 1.3(a)(i) of clause 1.3
(Interpretation);
	 
	 	(d)	 	paragraph (b) of the definition of “Material Adverse
Effect”;
	 
	 	(e)	 	clause 17.30 (Ranking);
	 
	 	(f)	 	clause 27.1(b) (Appointment of the
Agents);
	 
	 	(g)	 	clause 28(Conduct of business by the finance
parties);
	 
	 	(h)	 	clause 31 (Set-off); and
	 
	 	(i)	 	schedule 6 (Security
Provisions);






“Financial Indebtedness” means any indebtedness for or in respect of (without
double counting):




	 	(a)	 	money
borrowed;
	 
	 	(b)	 	any amount raised by acceptance under any acceptance
credit facility or dematerialised equivalent;
	 
	 	(c)	 	any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar instrument;
	 
	 	(d)	 	the amount of any liability in respect of any lease or
hire purchase contract which would, in accordance with US GAAP, be treated as a
finance or capital lease;
	 
	 	(e)	 	receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
	 
	 	(f)	 	any amount raised under any other transaction (including
any forward sale or purchase agreement) having the commercial effect of a
borrowing;
	 
	 	(g)	 	any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price (and, when
calculating the value of any
derivative transaction, only the marked to market value shall be taken into
account) including (without limitation) any Hedging Arrangement;




10









 












	 	(h)	 	any counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument issued by a
bank or financial institution; and
	 
	 	(i)	 	the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to (h) above;






“Fiscal Quarter” means any quarter in a Fiscal
Year;




“Fiscal Year” means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding to any
calendar year (eg the “2008 Fiscal Year”) refer to the Fiscal Year ending on
the December 31 occurring during such calendar year;




“F.R.S. Board” means the Board of Governors of the Federal Reserve System of the United

States of America or any successor
thereto;




“Gold” means loco London unallocated gold bullion measured in Ounces and
(unless otherwise agreed by the Borrower and the Facility Agent) which complies with the
rules of the LBMA relating to good delivery and fineness as from time to time in effect;




“Governmental Authority” shall mean the government of the United States of America or any
other nation, any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government;




“Guarantor” means Coeur d’Alene Mines Corporation, a company incorporated in the State of
Idaho of the United States of America whose registered office is located at
505 Front Avenue, Coeur d’Alene, ID 83814, United States;




“Guarantor Pledge Agreement” means the pledge agreement, in form and substance
satisfactory to the Security Agent, pursuant to which the Guarantor has pledged 100 per
cent of its shares in the Borrower, for the benefit of the Security Agent (on behalf of
the Finance Parties) as security, amongst other things, for the discharge of the Secured
Liabilities;




“Hazardous Substances” shall mean substances defined, used or listed as
“hazardous wastes”, “extremely hazardous wastes”, “restricted hazardous wastes”,
“hazardous materials”, “hazardous substances”, “toxic substances”, “solid
wastes”, “harmful physical agents”, “chemicals of concern”, “pollutants” or
“contaminants” by or under any Environmental Law and any pollutants, contaminants,
chemicals or toxics, petroleum hydrocarbons, asbestos, lead, polychlorinated
biphenyls, hazardous or radioactive materials, wastes, or substances that are regulated
under any Environmental Law;




“Hedging Arrangement” means any agreement, option or arrangements based on the 2002

ISDA Master Agreement, as published by the International Swaps & Derivatives Association,
Inc. (including the relevant confirmation and schedule) to be entered between the
Borrower and the Hedge Provider for the purpose of providing hedge protection against
fluctuations in the price of Gold, in accordance with the Hedging Strategy Letter;



11









 






“Hedging Exposure” means in respect of the Hedge Provider (and in respect of a
Lender, where such Lender is the Hedge Provider) at the relevant time, the aggregate of:




	 	(a)	 	the amount payable under the Hedging Arrangements to which the
Hedge Provider and the Borrower are a party if such Hedging Arrangements were to be
terminated at the relevant time, provided that it will be a positive number if it
represents a liability of the Borrower to the Hedge Provider and a negative
number if it represents a liability of the Hedge Provider to the Borrower; and
	 
	 	(b)	 	(without double counting under paragraph (a) above), any amount due
and payable (or the monetary equivalent of any asset due for
delivery) under a Hedging Arrangement on or prior to the relevant time,
which is a positive number if it represents amounts owing or deliverable by
the Borrower to the Hedge Provider and a negative number if it represents
amounts owing by the Hedge Provider to the Borrower,






and if the foregoing would result in an aggregate negative number for Hedging Exposure it
will be deemed zero for the Hedge Provider and, for the purpose of the
calculation of the foregoing, positive numbers and negative numbers will be
netted, without affecting the obligations of the Borrower under the relevant Hedging
Arrangements;




“Hedging Strategy Letter” means the letter dated on or about the date of this Agreement
between the Facility Agent and the Borrower setting out the policy agreed between them
for the provision of Hedging Arrangements;




“Indemnitee” shall have the meaning given to such term in clause 14.2
(Expenses; Indemnity);




“Information Package” means the reports listed in schedule 4 (Information
package);




“Insurable Property” means any and all Collateral which is of an insurable
nature;




“Insurance” means the insurance required to be taken out or maintained by, or on behalf
or for the benefit of, the Borrower to comply with the provisions of the Finance
Documents, and applicable Law, as approved by the Facility Agent;




“Insurance Proceeds” shall mean, to the extent payable to the Borrower, all amounts
and proceeds (including instruments) in respect of the proceeds of any casualty insurance
policy required to be maintained by the Borrower hereunder.




“Interest Period” means, in relation to the Loan, each period determined in accordance
with clause 9 (Interest periods) and, in relation to an Unpaid Sum, each
period determined in accordance with clause 8.3 (Default interest);




“Law” means any supranational, national, regional, tribal or local statute, law
(including common law), rule, treaty, convention, regulation, order, decree,
directive, consent decree, code, writ, judgment, injunction, determination,
resolution, administrative decision, disposition, circular, communication,
instruction, judicial or legally binding agency interpretation, policy or
guidance, Authorisation or other requirement (whether or not having the force of law but
being one which a prudent
organisation would regard as binding on it) and, where applicable, any interpretation
thereof by any Government Authority having jurisdiction with respect thereto or
charged with the administration or interpretation thereof;




“LBMA” means the London Bullion Market Association and its successor organisations;



12









 






“Legal Opinions” means the legal opinions delivered to the Facility Agent as to
matters of Alaska, Idaho, Delaware, New York and English law in connection with this
Agreement in accordance with paragraph 2 of schedule 2 (Conditions Precedent);




“Legal Reservations” means:




	 	(a)	 	the common law principle that equitable remedies may be granted or
refused at the discretion of a court and the limitation of enforcement by Laws
relating to insolvency, reorganisation and other Laws generally affecting the rights
of creditors;
	 
	 	(b)	 	applicable
statutes-of-limitations; and
	 
	 	(c)	 	any other matters which are set out as qualifications or
reservations as to matters of law of general application in the Legal Opinions;






“Lender” means:




	 	(a)	 	any Original
Lender; and
	 
	 	(b)	 	any New Lender which has become a Party in accordance with clause 25
(Changes to the Lenders),






which in each case has not ceased to be a Party in accordance with the
terms of this
Agreement;




“LIBOR” means, in relation to the Loan:




	 	(a)	 	the applicable Screen Rate;
or
	 
	 	(b)	 	(if no Screen Rate is available for US Dollars for the applicable
Interest Period) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted by the Reference
Banks to leading banks in the Relevant Interbank Market,






on or around 11.00am on the Quotation Day for the offering of deposits in US Dollars and
for a period comparable to the Interest Period;




“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
hypothecation, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such asset
and (c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities to the extent having an effect
equivalent to that of a security interest in such securities;




“Life of Mine” means the period over which the Life of Mine Plan has been
prepared;




“Life of Mine Plan” means the base case, life of mine plan and cash flow,
including a financial model of the projected Production, income and expenditure of the
Borrower and the Project in respect of (a) each monthly period for the period from the
date of this
Agreement until the end of the first calendar year of Production, (b) each calendar
quarter until the end of the second calendar year of Production, and (c) annually
thereafter, as amended or updated with the prior written approval of the Facility
Agent, as initialled for the purposes of



13









 






identification by the Borrower and delivered to the Facility Agent pursuant to
paragraph 4 of schedule 2 (Conditions precedent);




“Loan” means each loan made or to be made under the Facility or the
principal amount outstanding for the time being of that loan;




“Loan Account” means the US Dollar denominated account (account no 0835-1170990-62-1
designation “Coeur Alaska Inc.  —  Loan Account”) established by the Borrower in
Zurich, Switzerland with the Account Bank (and any sub-account or substitute account
from time to time) into which Loans are credited from time to time;




“Loan Account Charge” means the account charge governed by Swiss law dated on
or around the same date as this Agreement given by the Borrower for the benefit of the
Security Agent on behalf of the Finance Parties pursuant to which a charge is created
over the Loan Account as security for the discharge of the Secured Liabilities;




“Loan Proceeds” means the Loans credited to the Loan Account from time to
time in accordance with clause 5.5 (Loan Account);




“LMA” means the Loan Market Association;




“Loss Proceeds” shall mean Insurance Proceeds (excluding Insurance Proceeds relating to
liabilities to be paid to any third party and relating to business
interruption) and Eminent Domain Proceeds;




“Majority Lenders” means:




	 	(a)	 	if there are no Loans then outstanding, a Lender or
Lenders whose Commitments and/or Hedging Exposure, in aggregate, are greater
than 662/3 per cent of the Total Commitments and the total Hedging Exposure of
the Hedge Provider (or, if the Total Commitments or Hedging Exposure of the
Hedge Provider have been reduced to zero, in aggregate, are greater than
662/3 per cent of the Total Commitments and Hedging Exposure of the Hedge
Provider immediately prior to the reduction); or
	 
	 	(b)	 	at any other time, a Lender or Lenders whose participations
in the Loan then outstanding and Hedging Exposure aggregate more than 662/3 per
cent of the Loan and Hedging Exposure of the Hedge Provider then outstanding;






“Margin” means five per cent per annum;




“Material Adverse Effect” means any event or circumstance, which in the
opinion of Facility Agent (acting on the instructions of the Majority Lenders),
is reasonably likely to adversely affect:




	 	(a)	 	the ability of the Borrower (or, in relation to clause
17.21(b), the Guarantor) to perform its payment obligations under any of the
Finance Documents;
	 
	 	(b)	 	the ability of the Borrower (or, in relation to clause
17.21(b), the Guarantor) to
perform its obligations under clause 20.1 (Financial covenants);
	 
	 	(c)	 	on the business, operations, property, assets, financial or trading
position, or prospects of the Borrower, such that the Borrower would in the
reasonable opinion of the Facility Agent (acting on the instructions of the
Majority Lenders) be expected to be




14









 












	 	 	 	unable fully and punctually to perform its obligations under any Finance
Document to which it is a party;
	 
	 	(d)	 	subject to the Legal Reservations, on the validity, legality
or enforceability of:






	 	(i)	 	any material provision of any Finance
Document; or
	 
	 	(ii)	 	any right or remedy of any Finance Party under any Finance Document;






	 	(e)	 	subject to the Legal Reservations, on the validity,
legality, effectiveness or enforceability of the Security granted or
created (or which the relevant Obligor undertakes to grant or create) pursuant
to any Security Document or on the priority and ranking of any of that Security; or
	 
	 	(f)	 	the ability of the Borrower to develop, complete or operate the
Project in a manner substantially consistent with the financial projections and
other information contained in the Life of Mine Plan;






“Mine Project” means the project for the operation of the Kensington mine located on the
Site;




“Mineral Rights” means:




	 	(a)	 	all interests in the surface of any lands, the minerals
in (or that may be extracted from) any lands and any other mineral right from
time to time comprising the Mine Project;
	 
	 	(b)	 	all leases, governmental permits, Easements, licenses, claims,
subleases, rights of way or other rights to carry out or conduct mining operations
connected with the mineral rights referred to in paragraph (a) or (b) above issued
or transferred to or held by or on behalf of the Borrower or in which the Borrower
has or acquires any interest or shares therein (only to the extent relevant to the
Mine Project),






and includes:




	 	(c)	 	all applications for, or mineral rights issued in place of, those referred
to above; and
	 
	 	(d)	 	the mineral rights referred to above as renewed, extended, modified
or varied from time to time;






“Minimum Balance” means an amount equal to Monthly Debt Service for a three
Month period;




“Mining Laws” means the collection of rules applicable to the Borrower whether local,
state, federal, international or subject to trade industry custom and practice that
establish the rights, obligations and proceedings related to the acquisition,
exploitation and uses of mineral substances;




“Mining Report” has the meaning given to it in clause
4.4(a);




“Monthly Construction Report” means a Monthly report in the agreed form prepared by
the Borrower detailing the progress of the Construction Project toward Final Completion
in the immediately preceding Month, a pro forma of which as initialled for
the purposes of



15









 






identification by the Borrower and delivered to the Facility Agent pursuant to
paragraph 4 of schedule 2 (Conditions precedent);




“Monthly Debt Service” means one 48th (1/48) of the aggregate principal amount
of the
Loan as at the date of expiry of the Availability
Period;




“Monthly Expenditure Statement” means a Monthly statement in the agreed form prepared by
the Borrower detailing the Borrower’s Construction Costs and liabilities to contractors
in relation to the Construction Project in the immediately preceding Month, a
pro forma of which as initialled for the purposes of identification by the
Borrower and delivered to the Facility Agent pursuant to paragraph 4 of schedule 2
(Conditions precedent);




“Mortgage” means the mortgage of those Property Rights included in the Deed
of Trust under the law of the State of Alaska, in form and substance satisfactory to the
Security Agent, as the same may be amended, supplemented, replaced or otherwise
modified from time to time in accordance with this Agreement;




“Multiemployer Plan” shall mean a multiemployer plan as defined in section 4001(a)(3) of
ERISA;




“New Lender” has the same meaning given to the term in clause 25.1
(Assignments and transfers by the Lenders);




“Obligor” means the Borrower and/or the Guarantor;




“Offtake Contract” means each agreement for the sale or other disposal, including
delivery of Products for the purpose of refining and smelting, entered into between the
Borrower as seller and an Approved Offtaker as buyer;




“Offtake Contract Assignment” means any agreement or agreements of assignment by way of
security made subject to the appropriate Law (as required in order to achieve a perfected
security interest in each case) of all of the Borrower’s rights under each Offtake
Contract for the benefit of the Security Agent on behalf of the Finance Parties as
security for the discharge of the Secured Liabilities;




“Offtaker” means in respect of any Offtake Contract, the counterparty to such
Offtake
Contract;




“Original Construction Plan” means the plan in the agreed form prepared by the Borrower
detailing the Construction Project up to Final Completion, incorporating the Capex Budget
and the Project Schedule, as initialled for the purposes of identification by the
Borrower and delivered to the Facility Agent pursuant to paragraph 4 of schedule 2
(Conditions precedent);




“Original Financial Statements” means:




	 	(a)	 	in respect of the Guarantor,
each of:






	 	(i)	 	its most recent annual audited consolidated
financial statements produced before the date of this Agreement; and
	 
	 	(ii)	 	its most recent quarterly unaudited financial
statements produced before the date of this Agreement;




16









 












	 	(b)	 	in respect of the Borrower, its most recent Quarterly Management
Accounts produced before the date of this Agreement;






“Ounce” means a fine ounce troy, consisting of 31.1034768 grams;




“Parent Undertaking” means in relation to a company or corporation, any other company or
corporation in respect of which it is a Subsidiary;




“Party” means a party to this Agreement;




“Paste Facility” means a facility located underground at the Site to which tailings from
the Mine Project mill are pumped or piped, mixed with other ingredients, turned into
slurry and then pumped or piped to underground stopes and other areas that have already
been mined;




“PBGC” means the Pension Benefit Guaranty Corporation;




“Permits” shall mean any and all franchises, licenses, leases, permits,
approvals, notifications, certifications, registrations, authorisations,
exemptions, qualifications, Easements, rights of way, Liens and other rights,
privileges and approvals required under any Governmental Law;




“Permitted Disposal” means any sale, lease, licence, transfer or other disposal which is
on arms’ length terms:




	 	(a)	 	of Products to an Offtaker pursuant to an Offtake
Contract;
	 
	 	(b)	 	of any other inventory items made in the ordinary course of trading
of the disposing entity;
	 
	 	(c)	 	of fixed assets, the proceeds of which are applied in exchange for
other fixed assets of comparable or superior type, value or quality as soon
as possible after disposal (provided the proceeds of such disposal are held
pending each replacement purchase, in the Proceeds Account);
	 
	 	(d)	 	of obsolete or redundant vehicles, plant and equipment for
cash; or
	 
	 	(e)	 	to which the Facility Agent has (acting reasonably and on the
instructions of the
Majority Lenders) given its prior written consent;






“Permitted Financial Indebtedness” means Financial Indebtedness of the Borrower:




	 	(a)	 	incurred in the ordinary course of business of the Borrower;
	 
	 	(b)	 	incurred under or pursuant to this Agreement or any other Finance
Document;
	 
	 	(c)	 	incurred by the Borrower under or pursuant to an unsecured, fully
subordinated loan from the Guarantor or any Subsidiary of the Guarantor (and subject
to the Facility Agent’s approval of the relevant subordinated loan agreement);
	 
	 	(e)	 	incurred pursuant to the Capital Equipment
Leases;
	 
	 	(f)	 	approved in writing by the Facility Agent in its sole
discretion; or




17









 






	 	(g)	 	any Financial Indebtedness not falling within paragraphs (a) to (f)
above and incurred by the Borrower under or pursuant to a fully subordinated loan
from a third party (in form and substance reasonably satisfactory to the
Facility Agent), the aggregate outstanding principal amount of which does not at
any time exceed US$5,000,000;






“Permitted Lien” means:




	 	(a)	 	Any Lien created under the terms of this Agreement and the Security
Documents; and
	 
	 	(b)	 	any minor defects in title or standard exceptions or exclusions in
each case set out in the Title Policy which the Facility Agent (acting reasonably)
does not require to be cured, remedied or otherwise addressed by the Borrower;
	 
	 	(c)	 	any Lien arising by operation of Law in the ordinary course of
trading and not as a result of any default or omission by the Borrower;






“Proceeds Account” means the US Dollar denominated account (account no 0835-1170990-
62-2 designation “Coeur Alaska Inc.  —  Proceeds Account”) established by the
Borrower in Zurich, Switzerland with the Account Bank (and any sub-account or substitute
account from time to time) into which Product Proceeds are paid from time to time;




“Proceeds Account Charge” means the account charge or account charges governed
by Swiss law given by the Borrower for the benefit of the Security Agent on
behalf of the Finance Parties pursuant to which a charge is created over the Proceeds
Account, as security for the discharge of the Secured Liabilities;




“Process Agent” means any person appointed as a process agent pursuant to
clause 39.2 (Service of process);




“Production” means, for any period, the amount of Gold and other minerals which has been
produced, or in the case of any period or portion thereof to occur in the
future, which is scheduled to be produced in the Life of Mine Plan, at the Project
during such period;




“Production Report” means a report (in the form required by this Agreement)
as to the monthly Production volume and Production price for the Borrower, a pro forma
of which as initialled for the purposes of identification by the Borrower and
delivered to the Facility Agent pursuant to paragraph 4 of schedule 2 (Conditions
precedent);




“Product Proceeds” means all monies payable to or received by the Borrower arising from
the sale of Product and all other monetary amounts whatsoever payable to or received by
the Borrower from any third party while the Loan is outstanding;




“Products” means Gold, unrefined gold-bearing ore and any other minerals produced by the
Project;




“Project” means the Mine Project and/or the Construction Project (as the context
requires);




“Project Cost Guarantee” means an on-demand guarantee to be entered into by
the Guarantor in favour of the Security Agent on or around the date of this Agreement, in
respect of:




	 	(a)	 	a reserve against cost overruns on the construction of the
Construction Project up to an amount not exceeding US$5,000,000; and




18









 






	 	(b)	 	the Borrower’s contributions to the Construction Costs up to an amount
not exceeding
US$65,700,000;






“Project Documents” means any instruments, contracts and agreements which are
now existing or are entered into in the future, with any Approved Offtaker, Approved
Contractor, Government Authority or any other person in connection with the Project,
including without limitation:




	 	(a)	 	each Offtake
Contract;
	 
	 	(b)	 	each Construction
Contract;
	 
	 	(c)	 	each Capital Equipment
Lease;
	 
	 	(d)	 	each Authorisation which is issued to or held by or on behalf or
for the benefit of the Borrower in connection with the construction, operation
or development of the Project, or by or on behalf or for the benefit of the
Borrower in connection with the Borrower’s business or premises, where the failure
of such Authorisation to be issued or held, or the breach or non-performance
of the terms and conditions of such Authorisation, would constitute a Material
Adverse Effect; and
	 
	 	(e)	 	any other document executed from time to time by or on behalf or
for the benefit of the Borrower with respect to the construction,
development, maintenance, repair, operation or use of the Project, where the
breach or non-performance of the terms and conditions of such document, would
constitute a Material Adverse Effect;






“Project Schedule” means the Coeur Alaska Kensington Project schedule
dated 30

September 2009 setting out the timetable for completion of the Construction
Project, as
required to be delivered to the Facility Agent pursuant to paragraph 4 of
schedule 2 (Conditions precedent);




“Property Rights” means the Borrower’s rights, title, and interest in and to the surface
and the sub-surface land comprising the Site (whether in fee simple, leasehold,
license or otherwise) including all Mineral Rights in favour of the Security Agent
pursuant to the Deed of Trust, Easements, rights-of-way, and servitude;




“Quarterly Management Accounts” means the Borrower’s quarterly balance sheet and
income and cashflow statements;




“Quotation Day” means, in relation to any period for which an interest rate
is to be determined, two Business Days before the first day of that period
unless market practice differs in the Relevant Interbank Market in which case the
Quotation Day will be
determined by the Facility Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given by leading
banks in the Relevant Interbank Market on more than one day, the Quotation Day will
be the last of those days);




“Receiver” means a receiver, trustee, custodian, sequestrator, conservator or similar
official in respect of the whole or any part of the Collateral;




“Reference Banks” means the principal London offices of Credit Suisse, Deutsche
Bank, Citibank and/or such other banks as may be appointed by the Facility Agent in
consultation with the Borrower;



19









 






“Related Parties” shall mean, with respect to any specified person, such person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such
person and such person’s Affiliates;




“Release” shall mean any spilling, seeping, emitting, leaking, pumping, injecting,
pouring, emptying, depositing, disposing, discharging, dispersing, dumping,
escaping, leaching, or migrating of Hazardous Substances into the environment
(including the air, soil, surface water, groundwater, sewer, septic system, or waste
treatment, storage, or disposal systems) of any kind whatsoever, including the
abandonment or discarding of barrels, containers, tanks or other receptacles containing
or previously containing any Hazardous Substances;




“Relevant Interbank Market” means the London interbank market;




“Relevant Jurisdiction” means any jurisdiction whose governing law applies to a Finance
Document;




“Remedial Plan” means a plan prepared by the Borrower for the Facility Agent detailing
any material discrepancies between the works as reported in any Monthly
Construction Report and the anticipated works as specified in the Original Construction
Plan for such Month and setting out how the Borrower proposes to remedy such
discrepancies and the timescales to effect such remedial action and achieve Final
Completion by the Final Completion Date in a form satisfactory to the Facility Agent
(acting reasonably);




“Repayment Amount” means one 16th (1/16) of the aggregate principal amount of the Loan as
at the date of expiry of the Availability Period;




“Repayment Date” means each date on which a repayment of principal is to be
made in accordance with clause 6 (Repayment) being:




	 	(a)	 	the Business Day falling three Months after the last day of the
Availability Period and the Business Day falling on the last day of each
successive three Month period thereafter; and
	 
	 	(b)	 	the Final Maturity
Date;






“Repeating Representations” means each of the representations set out in clause
17 (Representations) (excluding clauses 17.2 (Organisation, Powers), 17.17 (Deduction of
Tax),
17.18 (No filing or stamp taxes), 17.19(a), 17.20 (No misleading information),
17.21 (No changes), 17.22(a) and 17.22(b) (Financial statements), 17.24 (No
winding-up) and 17.36 (Repetition));




“Screen Rate” means the British Bankers’ Association Interest Settlement Rate
for US Dollars for the relevant period, displayed at or about noon CET on the
appropriate page of the Reuters screen. If the agreed page is replaced or service
ceases to be available, the Facility Agent may specify another page or service displaying
the appropriate rate after consultation with the Borrower and the Lenders;




“SEC” means the Securities and Exchange Commission of the United States of America;




“Secured Liabilities” means all present and future indebtedness and liabilities due,
owing or incurred by the Borrower to any Finance Party from time to time under or in
connection with any Finance Document (in each case whether alone or jointly, or jointly
and severally, with any other person, whether actually or contingently or whether
as principal, surety or otherwise);



20









 






“Security” means a mortgage, charge, pledge, lien, security assignment or
other security interest securing any obligation of any person or any other agreement or
arrangement having a similar effect or having the effect of providing a
security or preferential treatment to a creditor;




“Security Document” means:




	 	(a)	 	the Debt Service Reserve Account
Charge;
	 
	 	(b)	 	the Proceeds Account Charge;
	 
	 	(c)	 	the Loan Account
Charge;
	 
	 	(d)	 	the Guarantor Pledge
Agreement;
	 
	 	(e)	 	the Borrower
Security Agreement;
	 
	 	(f)	 	the Mortgage (as such may form part of the Deed of
Trust);
	 
	 	(g)	 	the Deed of Trust;
	 
	 	(h)	 	each Offtake Contract Assignment (as such may form part of the Borrower
Security
Agreement);
	 
	 	(i)	 	the Facility
Guarantee;
	 
	 	(j)	 	the Project Cost
Guarantee;
	 
	 	(k)	 	any document or instrument required to be executed or delivered
pursuant to any
Security Document;
	 
	 	(l)	 	any other document evidencing any Security held by the Security
Agent on behalf of any of the Finance Parties as security, amongst other things, for
the discharge of the Secured Liabilities; or
	 
	 	(m)	 	any other document designated as such from time to time by the
Facility Agent and the Borrower;






“Site” means the land located in Juneau Recording District, Alaska on which the Project
is located;




“Spot Rate” means at any date in relation to any Administrative Party, that
Administrative Party’s spot rate of exchange (as determined conclusively by that
Administrative Party save in the case of manifest error) for the purchase of the
relevant currency in the London foreign exchange market using the Base Currency at or
around 11.00am (London time) on that date;




“Subsidiary” means in respect of a company or corporation, any other company
or corporation:




	 	(a)	 	which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
	 
	 	(b)	 	more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the first-mentioned company or
corporation; or




21









 






	 	(c)	 	which is a subsidiary of another subsidiary of the
first-mentioned company or corporation






and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to direct its affairs
and/or to control the composition of its board of directors or equivalent body;




“Tailings Facility” shall mean the tailings facility to process and store material left
after gold recovery to be constructed on the Site (including all machinery and
related infrastructure) with the proceeds of the Loan;




“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any failure to pay
or any delay in paying any of the same);




“Title Insurer” means Alaska Escrow & Title Insurance Agency, Inc.;




“Title Policy” shall mean such policy issued by the Title Insurer in respect of the
Project and the Property Rights, in form and substance satisfactory to the Facility
Agent;




“Total Commitments” means the aggregate of the Commitments, being US$45,000,000 at the
date of this Agreement;




“Transaction Documents” means each Offtake Contract and any other document designated in
writing as such by the Borrower and the Facility Agent;




“Transfer Certificate” means a certificate substantially in the form set out
in schedule 5 (Form of Transfer Certificate) or any other form agreed between the
Facility Agent and the Borrower;




“Transfer Date” means, in relation to a transfer pursuant to clause 25
(Changes to the
Lenders), the later
of:




	 	(a)	 	the proposed Transfer Date specified in the Transfer
Certificate; and
	 
	 	(b)	 	the date on which the Facility Agent executes the Transfer
Certificate;






“True-Up Calculation” means any amount calculated as may be necessary to
ensure compliance with clause 21.3(f);




“Unpaid Sum” means any sum due and payable but unpaid by the Borrower under
the
Finance Documents;




“US Dollars” and “US$” mean the lawful currency of the United States of America;




“US GAAP” means generally accepted accounting principles as in effect from time to time
in the United States, consistently applied;




“Utilisation” means the drawdown of the Loan;




“Utilisation Date” means the date of the
Utilisation;




“Utilisation Request” means a notice substantially in the form set out in
schedule 3 (Utilisation Request); and



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“VAT” means value added tax as provided for in the Value Added Tax Act 1994 and
any other tax of a similar nature imposed in any applicable jurisdiction at any time on
or after the date of this Agreement.




	1.2	 	Financial covenant definitions
	 
	 	 	The definitions in clause 20.1 (Financial covenants) shall also apply to this
Agreement.
	 
	1.3	 	Interpretation






	 	(a)	 	Unless a contrary indication appears, any reference in this
Agreement to:






	 	(i)	 	any “Finance Party”, any “Obligor” or any “Party”
shall be construed so as to include its successors in title, permitted
assignees and permitted transferees;
	 
	 	(ii)	 	persons “acting in concert” comprise persons who,
pursuant to an agreement or understanding (whether formal or informal),
co-operate to obtain, maintain or consolidate control of a company. A
person (who is a company) and each of its Affiliates will be deemed to be
acting in concert all with each other; a person (who is a natural person),
each company that he or she Controls and each Affiliate of each such company
will be deemed to be acting in concert all with each other;
	 
	 	(iii)	 	“assets” includes present and future properties,
revenues and rights of every description;
	 
	 	(iv)	 	“arm’s length basis” means in relation to a
transaction entered into by a person that the terms thereof are no less
favourable or onerous to that person than could reasonably be expected to be
obtained in a comparable transaction made on commercial terms with a
person who is not an Affiliate of that person;
	 
	 	(v)	 	where a sum is quoted as the equivalent in one
currency (the “first currency”) of a specified amount denominated
in another currency (the “second currency”), such sum, on the date
that the calculation is made, shall be equal to the amount of the first
currency which could be purchased by the specified amount denominated in the
second currency using the Facility Agent’s Spot Rate on that date;
	 
	 	(vi)	 	a “Finance Document” or any other agreement or
instrument is a reference to that Finance Document or other agreement
or instrument as amended, novated, supplemented, extended or restated
(in each case, in accordance with its terms);
	 
	 	(vii)	 	“guarantee” means any guarantee, letter of credit,
bond, indemnity or similar assurance against loss, or any
obligation, direct or indirect, actual or contingent, to purchase
or assume any indebtedness of any person or to make or to make an investment
in or loan to any person, where, in each case, such obligation is assumed in
order to maintain or assist the ability of such person to meet its
indebtedness;
	 
	 	(viii)	 	“indebtedness” includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;




23









 






	 	(ix)	 	“Month” means a period starting on one day in a calendar month
and ending on the numerically corresponding day in the next calendar month,
except that:






	 	(A)	 	(subject to paragraph (c) below) if
the numerically corresponding day is not a Business Day, that period
shall end on the next Business Day in that calendar month in which
that period is to end if there is one, or if there is not, on the
immediately preceding Business Day;
	 
	 	(B)	 	if there is no numerically
corresponding day in the calendar month in which that period is to
end, that period shall end on the last Business Day in that calendar
month; and
	 
	 	(C)	 	if an Interest Period begins on the
last Business Day of a calendar month, that Interest Period shall
end on the last Business Day in the calendar month in which that
Interest Period is to end.






	 	(x)	 	a “person” includes any individual, firm, company,
corporation, government, state or agency of a state or any association,
trust, joint venture, consortium or partnership (whether or not having
separate legal personality), or two or more of the foregoing;
	 
	 	(xi)	 	a “regulation” includes any regulation, rule,
official directive, request or guideline (whether or not having the force
of law, but, if not having the force of law, being of a type with
which any person to which it applies is accustomed to comply) of any
Governmental Authority;
	 
	 	(xii)	 	a provision of any Law or regulation is a
reference to that provision as amended or re-enacted (and includes any
subordinate legislation);
	 
	 	(xiii)	 	a document in “agreed form” is a document which is
previously agreed in writing by or on behalf of the Borrower and the
Facility Agent or, if not so agreed, is in the form specified by the
Facility Agent (acting reasonably);
	 
	 	(xiv)	 	a gender includes all other genders;
	 
	 	(xv)	 	the singular includes plural and vice versa;
	 
	 	(xvi)	 	a “clause” or a “schedule” is a reference to a clause of or a schedule to
this
Agreement;
	 
	 	(xvii)	 	a time of day is a reference to Zurich time (unless otherwise
specified);
	 
	 	(xviii)	 	when something is specified to occur:






	 	(A)	 	“after” a certain date or day, it
shall be taken to refer to “after (but not including)” that date or
day; and
	 
	 	(B)	 	“before” a certain date or day, it
shall be taken to refer to “before (but not including)” that date or
day; and






	 	(xix)	 	“including” shall not be interpreted narrowly but
shall be interpreted to mean “including (but not limited to)” or
“including without prejudice to the foregoing”, and “include” and
“included” shall be interpreted accordingly.






24












 






	 	(b)	 	Section, clause and schedule headings are for ease of
reference only, and shall not affect the interpretation of any provision of this
Agreement.
	 
	 	(c)	 	Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
	 
	 	(d)	 	A Default (other than an Event of Default) is “continuing” if it
has not been remedied or waived in writing and an Event of Default is “continuing”
if it has not been waived in writing, in each case to the satisfaction of the Agent.






	1.4	 	Third party rights






	 	(a)	 	Unless expressly provided to the contrary in a Finance Document a
person who is not a Party has no right (whether pursuant to the Contracts (Rights of
Third Parties) Act
1999 or otherwise) to enforce or to enjoy the benefit of any
provision of this
Agreement.
	 
	 	(b)	 	Notwithstanding any provision of any Finance Document the consent of
any person who is not a Party is not required to rescind or vary this Agreement at
any time.






	2.	 	THE FACILITY
	 
	2.1	 	The Facility
	 
	 	 	Subject to the terms of this Agreement, the Lenders make available to the
Borrower a US Dollar-denominated term loan facility in an aggregate
amount equal to the Total Commitments.
	 
	2.2	 	Finance Parties’ rights and obligations






	 	(a)	 	The obligations of each Finance Party under the Finance Documents
are several.
Failure by a Finance Party to perform its obligations under the Finance Documents
does not affect the obligations of any other Party under the Finance Documents.
No Finance Party is responsible for the obligations of any other Finance Party
under the Finance Documents.
	 
	 	(b)	 	The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from an Obligor shall
be a separate and independent debt.
	 
	 	(c)	 	A Finance Party may, except as otherwise stated in
the Finance Documents, separately enforce its rights under the Finance
Documents.






	3.	 	PURPOSE AND USE OF PROCEEDS
	 
	3.1	 	Purpose and Use of Proceeds
	 
	 	 	The Borrower shall use all amounts borrowed by it under the
Facility:






	 	(a)	 	to finance (in part) the Construction
Project; and










25









 












	 	(b)	 	to credit the Debt Service Reserve Account with an amount
sufficient to ensure compliance with clause 20.1(d) from time to time.






	3.2	 	Monitoring
	 
	 	 	No Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
	 
	4.	 	CONDITIONS OF UTILISATION
	 
	4.1	 	Initial conditions precedent
	 
	 	 	Subject to clause 4.3 (Waiver), the Borrower may not deliver any Utilisation Request
unless the Facility Agent has received all of the documents and other evidence listed in
schedule 2 (Conditions Precedent) in form and substance satisfactory to the Facility
Agent. The Facility Agent shall notify the Borrower and the Lenders promptly upon being
so satisfied.
	 
	4.2	 	Further conditions precedent
	 
	 	 	The Lenders will only be obliged to comply with clause 5.4 (Lenders’
participation) in relation to any Utilisation if on the date of the
Utilisation Request and on the proposed Utilisation Date:






	 	(a)	 	no Default has occurred and is continuing or would result from the
proposed Loan;
	 
	 	(b)	 	there has been no Borrower Change of Control;
	 
	 	(c)	 	there has been no Borrower Change of Ownership;
and
	 
	 	(d)	 	the Repeating Representations to be made by the Borrower
are true in all material respects and are not misleading, and will not become
untrue in any material respect or become misleading as a result of making the
proposed Loan or Utilisation.






	4.3	 	Waiver
	 
	 	 	The conditions specified in clauses 4.1 (Initial conditions precedent) and 4.2
(Further conditions precedent) are inserted solely for the benefit of the Lenders and may
be waived by the Facility Agent (acting on the instructions of all the Lenders), in whole
or in part and with or without conditions, without prejudicing the right of the Facility
Agent or the Lenders to require fulfilment of such conditions in whole in
respect of any other Utilisation. If compliance with any of the conditions
specified in clauses 4.1 (Initial conditions precedent) and 4.2 (Further conditions
precedent) is so waived with conditions or on condition that the Borrower shall comply at
or before a particular time, the Borrower shall so comply.
	 
	4.4	 	Conditions subsequent






	 	(a)	 	Within 120 days after the date of this Agreement, the Borrower
shall deliver to the Facility Agent a report providing an opinion by legal
counsel retained by the Borrower as to the Borrower’s title to the minerals in
the lands, mining claims, and leases included in the Site (the “Mining Report") in
form and substance satisfactory to the Facility Agent (acting reasonably).
The Borrower shall not be obligated to expend more than US$25,000 for the
cost of such report unless required by the Facility Agent (acting
reasonably).




26









 












	 	(b)	 	The Borrower shall, to the satisfaction of the Facility Agent (acting
reasonably), cure
or otherwise address any defects in title that may be identified in the Mining
Report which the Facility Agent (acting reasonably) considers material to the
interests of the Finance Parties under the Finance Documents, within a period of
time satisfactory to the Facility Agent (acting reasonably).
	 
	 	(c)	 	The Borrower shall diligently pursue the negotiation and execution
of the lease to be issued by the State of Alaska regarding the Slate Creek
Cove tidelands (the “Tidelands Lease") and forward to the Facility Agent an
executed version thereof as soon as practicable and in any event by no later than
the Final Completion Date. The Borrower shall use its reasonable endeavours to
ensure that (i) the State of Alaska consents to the assignment of the
Tidelands Lease by the Borrower to the Security Agent under the Deed of Trust
and (ii) the termination provisions of the Tidelands Lease are on terms
consistent with similar tidelands leases granted in similar circumstances by
the State of Alaska. The Borrower shall further use its reasonable endeavours to
negotiate that upon giving notice of termination pursuant to the terms of the
Tidelands Lease to the Borrower, the lessor shall also give notice to the Facility
Agent. To the extent that such termination, assignment and notice provisions are not
available and the Borrower has used its reasonable endeavours to comply with this
clause, no further action shall be taken in relation to the Borrower by
any Finance Party.






	5.	 	UTILISATION
	 
	5.1	 	Delivery of a Utilisation Request
	 
	 	 	The Borrower may utilise the Facility from time to time by delivery to the Facility Agent
of a duly completed Utilisation Request not later than 11.00 am (Zurich time)
on the second Business Day before the proposed Utilisation Date.
	 
	5.2	 	Completion of a Utilisation Request






	 	(a)	 	Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:






	 	(i)	 	the proposed Utilisation Date is the first Business Day of a Month
within the
Availability Period;
	 
	 	(ii)	 	the currency and amount of the Utilisation comply
with clause 5.3 (Currency and amount);
	 
	 	(iii)	 	the proposed Interest Period complies with clause 9 (Interest periods);
and
	 
	 	(iv)	 	it specifies that the proceeds of the proposed Utilisation are to be
paid into the
Loan Account.






	5.3	 	Currency and amount






	 	(a)	 	The currency specified in the Utilisation Request must be the Base
Currency.
	 
	 	(b)	 	The amount of a proposed Loan, for each relevant Month, shall not
exceed the lesser of:




27









 












	 	(i)	 	an amount equal to 50% of the Construction Costs as projected
in the Capex Budget for such Month and as varied (as may be necessary) by
any True-Up Calculation; and
	 
	 	(ii)	 	the Available Facility.






	5.4	 	Lenders’ participation






	 	(a)	 	If the conditions set out in clauses 4 (Conditions of Utilisation)
and 5.1 (Delivery of a Utilisation Request) to 5.3 (Currency and amount) have been
met, each Lender shall make its participation in the Loan available by the
Utilisation Date through its Facility Office.
	 
	 	(b)	 	The amount of each Lender’s participation in the Loan will be equal
to the proportion borne by that Lender’s Available Commitment to the Available
Facility immediately prior to making the Loan.
	 
	 	(c)	 	The Facility Agent shall notify each Lender of the amount
of the Loan and the amount of its participation in the Loan by 2.00pm on the
third Business Day before the proposed Utilisation Date.






	5.5	 	Loan Account
	 
	 	 	The amount of each Lender’s participation in each Loan shall be credited to the Loan
Account on the Utilisation Date, to be disbursed by the Borrower in accordance with
clause 23.3 (Loan Account — Payments and withdrawals).
	 
	5.6	 	Cancellation of Commitment






	 	(a)	 	If a Lender’s Available Commitment is reduced in accordance with
the terms of this Agreement after the Facility Agent has received a
Utilisation Request and such reduction was not taken into account in the
calculation of the Available Facility, then the amount of that Utilisation shall be
reduced accordingly.
	 
	 	(b)	 	The Total Commitments shall be immediately cancelled at the end of the
Availability
Period in accordance with clause 7.3 (Automatic cancellation).






	6.	 	REPAYMENT






	 	(a)	 	Following the expiry of the Availability Period, the
Borrower shall repay the principal amount of the Loan by paying to the
Facility Agent on each Repayment Date an amount equal to the Repayment Amount.
	 
	 	(b)	 	The frequency of the Repayment Dates may be altered by agreement
between the
Borrower and the Facility Agent (acting on the instruction of the Majority
Lenders).
	 
	 	(c)	 	No amount may remain outstanding after the Final Maturity Date.
	 
	 	(d)	 	For the avoidance of doubt the Borrower confirms and
acknowledges that its obligations under the Finance Documents including without
limitation its repayment obligations exist independent of, and are in no way
contingent or conditional upon, its performance under any Offtake Contract.




28









 












	7.	 	PREPAYMENT AND CANCELLATION
	 
	7.1	 	Illegality
	 
	 	 	If at any time it is or will become unlawful in any applicable jurisdiction
for a Lender to perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in the Loan:






	 	(a)	 	that Lender shall promptly notify the Facility Agent upon
becoming aware of that event;
	 
	 	(b)	 	the Facility Agent shall promptly notify the Borrower
thereof;
	 
	 	(c)	 	upon the Facility Agent notifying the Borrower, the Commitment of
that Lender will be immediately cancelled; and
	 
	 	(d)	 	where that
Lender:






	 	(i)	 	has not funded any participation in the Loan, it
shall have no further funding obligation; or
	 
	 	(ii)	 	has funded all or part of its Commitment,
the Borrower shall repay that Lender’s participation in the Loan on
the last day of the Interest Period occurring after the Facility
Agent has notified the Borrower or, if earlier, the date specified by the
Lender in the notice delivered to the Facility Agent (being no
earlier than the last day of any applicable grace period permitted by law).






	7.2	 	Mandatory Prepayment






	 	(a)	 	If a Borrower Change of Control or Borrower Change of Ownership
occurs:






	 	(i)	 	the Borrower shall promptly notify the Facility
Agent upon becoming aware of that event or if the Facility Agent otherwise
becomes aware of such event the Facility Agent shall notify the Borrower
accordingly;
	 
	 	(ii)	 	the Facility Agent shall promptly notify the Lenders
thereof;
	 
	 	(iii)	 	no Lender shall be obliged to fund any
Utilisation; and
	 
	 	(iv)	 	if a Lender so requires and notifies the Facility
Agent within five Business Days of that Lender being notified by the
Facility Agent of the event the Facility Agent shall, by not less
than five Business Days’ notice to the Borrower, cancel the
Commitment of that Lender and declare the participation of that
Lender in all outstanding Loans, together with accrued interest, and all
other amounts accrued under the Finance Documents immediately
due and payable, whereupon the Commitment of that Lender will be
cancelled and all such outstanding amounts will become immediately due and
payable.






	 	(b)	 	If at any time after the Final Completion Date the Tangible Net
Worth of the
Guarantor is less than US$1,000,000,000:




29









 












	 	(i)	 	the Borrower shall promptly notify the Facility Agent upon
becoming aware of that event or if the Facility Agent otherwise becomes
aware of such event the Facility Agent shall notify the Borrower
accordingly;
	 
	 	(ii)	 	the Facility Agent shall promptly notify the Lenders
thereof;
	 
	 	(iii)	 	no Lender shall be obliged to fund any
Utilisation; and
	 
	 	(iv)	 	if a Lender so requires and notifies the Facility
Agent within five Business Days of that Lender being notified by the
Facility Agent of the event the Facility Agent shall, by not less than
45 days’ notice to the Borrower, cancel the Commitment of that Lender and
declare the participation of that Lender in all outstanding Loans, together
with accrued interest, and all other amounts accrued under the Finance
Documents immediately due and payable, whereupon the Commitment
of that Lender will be cancelled and all such outstanding amounts
will become immediately due and payable.






	7.3	 	Automatic cancellation
	 
	 	 	Any part of the Facility which remains undrawn at the close of business in
Zurich, Switzerland, on the last day of the Availability Period shall be automatically
and immediately cancelled and each Lender’s Commitment then outstanding shall be reduced
to zero.
	 
	7.4	 	Voluntary cancellation
	 
	 	 	The Borrower may at any time during the Availability Period, if it gives the Facility
Agent not less than four Business Days’ (or such shorter period as the Majority Lenders
may agree) prior notice, cancel the whole or any part of the Available Facility. Any
cancellation under this clause 7.4 (Voluntary cancellation) shall reduce the
Commitments of the Lenders rateably.
	 
	7.5	 	Voluntary prepayment of Loans






	 	(a)	 	Subject to sub-clause (c) below, the Borrower may, at any time after the date
falling
12 months after the first Utilisation Date (or subject to the prior written
consent of the Facility Agent in its absolute discretion, at any earlier
date), if it gives the Facility Agent not less than 10 Business Days’ prior
written notice, prepay the whole or any part of the Loan (but, if in part,
being a minimum amount of US$5,000,000 and thereafter, in integral
multiples of US$5,000,000 or, if less, the remainder of such Loan).
	 
	 	(b)	 	Any prepayment under this clause 7.5 (Voluntary prepayment of Loans)
shall satisfy the obligations of the Borrower under clause 6 (Repayment) in
reverse order of maturity and be applied rateably among the participations of all
Lenders.
	 
	 	(c)	 	The Borrower may not make any prepayment of all of the
Loans then outstanding, under sub-clause (a) above, from the proceeds of any
Financial Indebtedness incurred by it or any of its Affiliates unless it has entered
into discussions in good faith with the Facility Agent to allow Credit Suisse the
opportunity to offer to the Borrower a refinance of the Loan on terms
competitive with the proposed provider of that Financial Indebtedness at such
time.




30









 












	7.6	 	Right of prepayment and cancellation in relation to a single Lender






	 	(a)	 	If:






	 	(i)	 	any sum payable to any Lender by the Borrower is
required to be increased under 12.2(c); or
	 
	 	(ii)	 	any Lender claims indemnification under clause
12.3 (Tax indemnity) or clause 13.1 (Increased Costs), the Borrower
may, whilst the circumstance giving rise to the requirement for
indemnification continues, give the Facility Agent notice of the
cancellation of the Commitment of that Lender and its intention to
prepay that Lender’s participation in the Loan.






	 	(b)	 	On receipt of a notice referred to in paragraph (a) above, the
Commitment of that
Lender shall immediately be reduced to zero.
	 
	 	(c)	 	On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall prepay that
Lender’s participation in the Loan together with Break Costs (if any) relating
to such prepayment.






	7.7	 	Restrictions






	 	(a)	 	Any notice of cancellation or prepayment given by any
Party under this clause 7 (Prepayment and cancellation) shall be irrevocable
and, unless a contrary indication appears in this Agreement, shall specify the
date or dates upon which the relevant cancellation or prepayment is to
be made and the amount of that cancellation or prepayment.
	 
	 	(b)	 	Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
	 
	 	(c)	 	The Borrower may not reborrow any part of the Facility which is repaid or
prepaid.
	 
	 	(d)	 	The Borrower shall not repay or prepay all or any part of the Loan
or cancel all or any part of the Commitments except at the times and in the manner
expressly provided for in this Agreement.
	 
	 	(e)	 	No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
	 
	 	(f)	 	If the Facility Agent receives a notice under this
clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that
notice to either the Borrower or the affected Lender, as appropriate.






	8.	 	INTEREST
	 
	8.1	 	Calculation of interest
	 
	 	 	The rate of interest on the Loan for each Interest Period is the percentage
rate per annum which is the aggregate of the applicable:






	 	(a)	 	Margin; and




31









 












	 	(b)	 	LIBOR.






	8.2	 	Payment of interest






	 	(a)	 	Subject to sub-clause (b) below, during the Availability
Period, on the last day of each Interest Period, the interest accrued on the
Loan during such Interest Period
shall be added to the principal amount of the Loan and thereafter such
capitalised amount itself shall bear interest at the applicable rate of interest
as part of the Loan.
	 
	 	(b)	 	During the Availability Period, the Borrower may, at its option, pay
accrued interest on the Loan on the last day of each Interest Period
(and, if the Interest Period is longer than six Months, on the dates falling at
six monthly intervals after the first day of the Interest Period). Interest paid
under this sub-clause (b) shall not be accrued in accordance with sub-clause (a)
above.
	 
	 	(c)	 	Subsequent to the Availability Period, the Borrower shall pay
accrued interest on the Loan on the last day of each Interest Period (and, if the
Interest Period is longer than six Months, on the dates falling at six
monthly intervals after the first day of the Interest Period).






	8.3	 	Default interest






	 	(a)	 	If the Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the Unpaid Sum from the
due date up to the date of actual payment (both before and after judgment)
at a rate which, subject to paragraph (b) below, is two per cent higher
than the rate which would have been payable if the Unpaid Sum had, during the
period of non-payment, constituted a Loan in the currency of the Unpaid Sum for
successive Interest Periods, each of a duration selected by the Facility Agent
(acting reasonably). Any interest accruing under this clause 8.3 (Default
interest) shall be immediately payable by the Borrower on demand by the
Facility Agent.
	 
	 	(b)	 	If any Unpaid Sum consists of all or part of the Loan which became
due on a day which was not the last day of an Interest Period relating to the Loan:






	 	(i)	 	the first Interest Period for that Unpaid Sum shall
have a duration equal to the unexpired portion of the current Interest
Period relating to the Loan; and
	 
	 	(ii)	 	the rate of interest applying to the Unpaid
Sum during that first Interest Period shall be two per cent higher than
the rate which would have applied if the Unpaid Sum had not become due.






	 	(c)	 	Default interest (if unpaid) arising on an Unpaid Sum will be
compounded with the Unpaid Sum at the end of each Interest Period applicable to that
Unpaid Sum but will remain immediately due and payable.






	8.4	 	Notification of rates of interest
	 
	 	 	The Facility Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.




32









 












	9.	 	INTEREST PERIODS
	 
	9.1	 	Interest Periods






	 	(a)	 	Subject to this clause 9 (Interest periods), the duration of
Interest Periods for all
Loans shall be:






	 	(i)	 	three Months; or
	 
	 	(ii)	 	any other period agreed between a Borrower and the
Facility Agent (acting then on the instructions of all the Lenders).






	 	(b)	 	Notwithstanding any other provision of this Agreement, an Interest
Period for the
Loan shall not extend beyond the Final Maturity Date.
	 
	 	(c)	 	Each Interest Period for the Loan shall start on the
Utilisation Date or (if already made) on the last day of its preceding Interest
Period.






	9.2	 	Non-Business Days
	 
	 	 	If an Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar month (if
there is one) or the preceding Business Day (if there is not).
	 
	10.	 	CHANGES TO THE CALCULATION OF INTEREST
	 
	10.1	 	Absence of quotations
	 
	 	 	Subject to clause 10.2 (Market disruption), if LIBOR is to be determined by reference to
the Reference Banks but a Reference Bank does not supply a quotation by
11.00am on the Quotation Day, the applicable LIBOR shall be determined on the basis of
the quotations of the remaining Reference Banks.
	 
	10.2	 	Market disruption






	 	(a)	 	If a Market Disruption Event occurs in relation to the Loan for any
Interest Period, then the rate of interest on each Lender’s share of the
Loan for the Interest Period shall be the percentage rate per annum which is the
sum of:






	 	(i)	 	the Margin; and
	 
	 	(ii)	 	the rate notified to the Facility Agent by that
Lender as soon as practicable and in any event before interest is due to be
paid in respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding its
participation in the Loan from whatever source it may reasonably select.






	 	(b)	 	The Facility Agent shall promptly notify the Borrower of
the occurrence, or if applicable the cessation, of a Market Disruption Event.
	 
	 	(c)	 	In this Agreement, “Market Disruption Event”
means:






	 	(i)	 	at or about noon on the Quotation Day for the relevant
Interest Period the
Screen Rate is not available (or the Screen Rate is zero or negative) and
none




33









 












	 	 	 	or only one of the Reference Banks supplies a rate to the Facility
Agent to determine LIBOR for US Dollars for the relevant Interest Period;
or
	 
	 	(ii)	 	before close of business in London on the
Quotation Day for the relevant Interest Period, the Facility Agent
receives notifications from a Lender or Lenders (whose participations
in the Loan exceed 10 per cent of the Loan) that the cost to it or
them of obtaining matching deposits in
the Relevant Interbank Market would be in excess of LIBOR.






	10.3	 	Alternative basis of interest or funding






	 	(a)	 	If a Market Disruption Event occurs and the Facility Agent
or the Borrower so requires, the Facility Agent and the Borrower shall
enter into negotiations (for a period of not more than 30 days) with a
view to agreeing a substitute basis for determining the rate of interest.
	 
	 	(b)	 	Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the Borrower, be binding on
all Parties.






	10.4	 	Break Costs






	 	(a)	 	The Borrower shall, within four Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs attributable to all or any
part of the Loan or Unpaid Sum being paid by the Borrower on a day other than the
last day of an Interest Period for the Loan or Unpaid Sum.
	 
	 	(b)	 	Each Lender shall, as soon as reasonably practicable after a demand
by the Facility Agent, provide a certificate confirming the amount of its Break
Costs for any Interest Period in which they accrue.






	11.	 	FEES
	 
	11.1	 	Arrangement fee
	 
	 	 	The Borrower shall pay to the Agent (for the account of the Arranger) an arrangement fee
in the amount and at the times agreed in the relevant Fee Letter.
	 
	11.2	 	Agency fee
	 
	 	 	The Borrower shall pay to the Facility Agent (for its own account) an agency
fee in the amount and at the times agreed in the relevant Fee Letter.
	 
	11.3	 	Commitment fee






	 	(a)	 	Subject to sub-clause (b) below, the Borrower shall pay to the
Facility Agent (for the account of each Lender) a fee computed on a daily basis
(based on a 360 day year) at the rate of 0.25 per cent per annum on that Lender’s
Available Commitment during the period starting on and from date of this Agreement
and ending on and including the last day of the Availability Period.
	 
	 	(b)	 	The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the Availability Period,
on the last day of the Availability Period and, if any Commitment is cancelled,
on the cancelled amount of the relevant Lender’s Commitment at the time the
cancellation is effective




34









 












	12.	 	TAX GROSS-UP AND INDEMNITIES
	 
	12.1	 	Definitions






	 	(a)	 	In this Agreement:
	 
	 	 	 	“Tax Credit” means a credit against, relief or remission for, or
repayment of any
Tax;
	 
	 	 	 	“Tax Deduction” means a deduction or withholding for or on account of Tax from a
payment under a Finance Document;
	 
	 	 	 	“Tax Payment” means an increase in a payment made by the Borrower to a Finance
Party under clause 12.2 (Tax gross-up) or a payment under clause 12.3
(Tax indemnity).
	 
	 	(b)	 	Unless a contrary indication appears, in this clause 12 (Tax
gross-up and indemnities) a reference to “determines” or “determined” means a
determination made in the reasonable discretion of the person making the
determination.






	12.2	 	Tax gross-up






	 	(a)	 	The Borrower shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by Law.
	 
	 	(b)	 	The Borrower shall promptly upon becoming aware that it
must make a Tax Deduction (or that there is any change in the rate or the basis
of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender
shall promptly notify the Facility Agent on becoming so aware in respect of a
payment payable to that Lender. If the Facility Agent receives such notification
from a Lender it shall promptly notify the Borrower.
	 
	 	(c)	 	If a Tax Deduction is required by Law to be made by the Borrower,
the amount of the payment due from the Borrower shall be increased to an amount
which (after making any Tax Deduction) leaves an amount equal to the payment which
would have been due if no Tax Deduction had been required.
	 
	 	(d)	 	If the Borrower is required to make a Tax Deduction, the Borrower
shall make that Tax Deduction and any payment required in connection with
that Tax Deduction within the time allowed and in the minimum amount required by
Law.
	 
	 	(e)	 	Within 30 days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the Borrower shall deliver
to the Facility Agent for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax Deduction has
been made or (as applicable) any appropriate payment paid to the relevant
taxing authority.
	 
	 	(f)	 	Each Lender, including any person that becomes a Lender after the
date hereof, shall deliver to Facility Agent and to Borrower, (i) two original
copies of Internal Revenue Service Form W-8BEN or Internal Revenue Service
Form W-9 (or any successor form), as applicable, properly completed and duly
executed by such Lender, and such other documentation reasonably requested by
Borrower to establish that such Lender is not subject to deduction or
withholding of U.S. federal income or backup withholding tax with respect to
any payments to such Lender of principal, interest,





35









 











	 	 	 	fees or other amounts payable under any of the Finance Documents.
Each Lender required to deliver any forms, certificates or other evidence
with respect to U.S. federal income tax withholding matters pursuant to this
Section 12.2(f) hereby agrees, from time to time after the initial delivery by
such Lender of such forms, certificates or other evidence, whenever a change
in a Lender’s circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that such Lender
shall promptly deliver to Facility Agent and to Borrower two new original copies
of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form
W-9 (or any successor form), as the case may be,
properly completed and duly executed by such Lender, and such other
documentation reasonably requested by Borrower to confirm or establish
that such Lender is not subject to deduction or withholding of U.S. federal
income tax with respect to payments to such Lender.






	 	(g)	 	If a Lender fails to deliver the forms, certificates or
other evidence referred to in clause 12.2(f) above, the Borrower shall withhold
the taxes due on payments to such Lender and solely to the extent that such
withholding was the result of the Lender’s non-compliance with the requirement that
it deliver such forms, certificates or other evidence referred to in clause
12.2(f) above, the payments required pursuant to clauses 12.2(c) and 13.1(a)
shall be reduced.






	12.3	 	Tax indemnity






	 	(a)	 	Without prejudice to clause 12.2 (Tax gross-up), if any Finance
Party is required to make any payment of or on account of Tax on or in relation to
any sum received or receivable under any Finance Document (including any sum deemed
for purposes of Tax to be received or receivable by such Finance Party
whether or not actually received or receivable) or if any liability in respect of
any such payment is asserted, imposed, levied or assessed against any Finance
Party, the Borrower shall, within three Business Days of demand of the
Facility Agent, promptly indemnify the Finance Party which suffers a loss
or liability as a result against such payment or liability, together with
any costs and expenses payable or incurred in connection therewith in each
case, except to the extent that such costs and expenses contemplated by this
clause arose solely as a result of any negligence or malfeasance of such
Finance Party.
	 
	 	(b)	 	Paragraph (a) above shall not apply:






	 	(i)	 	with respect to any Tax assessed on a Finance
Party:






	 	(A)	 	under the Law of the
jurisdiction in which that Finance Party is incorporated or,
if different, the jurisdiction (or jurisdictions) in which
that Finance Party is treated as resident for tax purposes; or
	 
	 	(B)	 	under the Law of the
jurisdiction in which that Finance Party’s Facility Office is
located in respect of amounts received or receivable in that
jurisdiction,






	 	 	 	if that Tax is imposed on or calculated by reference to the
net income received or receivable by that Finance Party;
	 
	 	(ii)	 	to the extent a loss, liability or cost is
compensated for by an increased payment under clause 12.2 (Tax gross-up)
or






36











 






	 	(iii)	 	to the extent that such Tax would not have been payable but for such
Lender’s failure for any reason to deliver any of the forms referred to in clause
12.2(f).






	 	(c)	 	A Finance Party making, or intending to make, a claim under paragraph (a) above shall
promptly notify the Facility Agent of the event which will give, or has given, rise to the
claim, following which the Facility Agent shall promptly notify the Borrower.
	 
	 	(d)	 	A Finance Party shall, on receiving a payment from the Borrower under this clause
12.3 (Tax indemnity), notify the Facility Agent.






	12.4	 	Tax Credit






	 	(a)	 	If the Borrower makes a Tax Payment and the relevant Finance Party determines that:






	 	(i)	 	a Tax Credit is attributable either to an increased payment of which that Tax Payment forms
part, or to that Tax Payment; and
	 
	 	(ii)	 	that Finance Party has obtained, utilised and retained that Tax Credit,






	 	 	 	the Finance Party shall pay an amount to the Borrower which that
Finance Party determines will leave it (after that payment) in the same after-Tax position
as it would have been in had the Tax Payment not been required to be made by the Borrower.
The Borrower may, upon written request, require a Lender to produce reasonable
evidence (without being obliged in any way to disclose to the Borrower any
information of a confidential nature relating to its tax affairs) as to whether or
not the criteria set out in sub-clause (a)(i) and (a)(ii) above are satisfied. A
Finance Party shall use reasonable endeavours to complete, as soon as reasonably
practicable, any formalities to have the benefit of any available Tax Credits or
relief which it is aware of at such time.






	 	(b)	 	If any Finance Party makes any payment to the Borrower pursuant to this clause 12.4
(Tax Credit) and such Finance Party subsequently determines that the Tax Credit in respect
of which such payment was made was not available or is required to be repaid by it or that
it was not permitted to use such Tax Credit in full, the Borrower shall reimburse that
Finance Party such amount (being an amount no greater than the amount paid by that Finance
Party to the Borrower pursuant to this clause 12.4 (Tax Credit)) as that Finance Party
reasonably determines is necessary to place it in the same after-Tax position as it would
have been in if such Tax Credit had been obtained and fully used and retained by such
Finance Party.






	12.5	 	Stamp taxes






	 	 	The Borrower shall pay and, within three Business Days of demand, indemnify each Finance
Party against any cost, loss or liability that Finance Party incurs in relation to all
stamp duty, registration and other similar Taxes payable in respect of any Finance
Document.






	12.6	 	Value added tax






	 	(a)	 	All amounts set out, or expressed to be payable under a Finance Document by any Party
to a Finance Party which (in whole or in part) constitute the consideration for VAT
purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and
accordingly, subject to paragraph (c) below, if VAT is chargeable on any supply made by any
Finance Party to any Party under a Finance Document, that






37









 









	 	 	 	Party shall pay to the Finance Party (in addition to and at the same time as paying
the consideration) an amount equal to the amount of the VAT (and such Finance Party
shall promptly provide an appropriate VAT invoice to such Party).
	 
	 	(b)	 	If VAT is chargeable on any supply made by any Finance Party (the “Supplier") to any
other Finance Party (the “Recipient") under a Finance Document, and any Party (the
“Relevant Party") is required by the terms of any Finance Document to pay an amount equal
to the consideration for such supply to the Supplier (rather than being required to
reimburse the Recipient in respect of that consideration), such Party shall also pay to the
Supplier (in addition to and at the same time as paying such amount) an amount equal to the
amount of such VAT. The Recipient will promptly pay to the Relevant Party an amount equal
to any credit or repayment from the relevant tax authority which it reasonably determines
relates to the VAT chargeable on that supply. So far as the Facility Agent is aware
(without representing the Borrower) the Original Lenders are not as at the date of this
Agreement required to charge VAT on any supply made or to be made under the Finance
Documents.
	 
	 	(c)	 	Where a Finance Document requires any Party to reimburse a Finance Party for any costs
or expenses, that Party shall also at the same time pay and indemnify the Finance Party
against all VAT incurred by the Finance Party in respect of the costs or expenses to the
extent that the Finance Party reasonably determines that neither it nor any other member of
the group of which it is a member for VAT purposes is entitled to credit or repayment from
the relevant tax authority in respect of the VAT.






	13.	 	INCREASED COSTS






	13.1	 	Increased Costs






	 	(a)	 	Subject to clause 13.3 (Exceptions) the Borrower shall, within four Business Days of a
demand by the Facility Agent, pay for the account of a Finance Party the amount of any
Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:






	 	(i)	 	the introduction of or any change after the date of this Agreement in (or in the
interpretation, administration or application of) any Law or regulation; or
	 
	 	(ii)	 	compliance
with any Law or regulation made after the date of this Agreement.






	 	 	The terms “Law” and “regulation” in this paragraph (a) shall include any law or regulation
concerning capital adequacy, capital ratios, reserve requirements on contingent
liabilities, prudential limits, liquidity, reserve assets or Tax.






	 	(b)	 	In this Agreement “Increased Costs” means:






	 	(i)	 	a reduction in the rate of return from the Facility or on a Finance Party’s (or
its Affiliate’s) overall capital;
	 
	 	(ii)	 	an additional or increased cost; or
	 
	 	(iii)	 	a reduction of any amount due and payable under any Finance Document,






38









 









	 	 	which is incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it
is attributable to that Finance Party having entered into its Commitment or funding or
performing its obligations under any Finance Document.






	13.2	 	Increased cost claims






	 	(a)	 	A Finance Party intending to make a claim pursuant to clause 13.1 (Increased Costs)
shall notify the Facility Agent of the event giving rise to the claim, following which the
Facility Agent shall promptly notify the Borrower.
	 
	 	(b)	 	Each Finance Party shall, as soon as practicable after a demand by the Facility Agent,
provide a certificate confirming the amount of its Increased Costs and describing in
reasonable detail the circumstances giving rise to the claim.






	13.3	 	Exceptions






	 	(a)	 	Clause 13.1 (Increased Costs) does not apply to the extent any Increased Cost is:






	 	(i)	 	attributable to a Tax Deduction required by Law to be made by the Borrower;
	 
	 	(ii)	 	compensated for by clause 12.3 (Tax indemnity) (or would have been compensated for under
clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions
in clause 12.3(b) applied); or
	 
	 	(iii)	 	attributable to the wilful breach by the relevant
Finance Party or its Affiliates of any Law or regulation or a failure by the relevant
Finance Party to make any relevant filings with any regulatory authority.






	 	(b)	 	In this clause 13.3 (Exceptions), a reference to a “Tax Deduction” has the same meaning
given to the term in clause 12.1 (Definitions).






	14.	 	OTHER INDEMNITIES
	 
	14.1	 	Currency indemnity






	 	(a)	 	If any sum due from the Borrower under the Finance Documents (a “Sum”), or any order,
judgment or award given or made in relation to a Sum, has to be converted from the currency
(the “First Currency”) in which that Sum is payable into another currency (the “Second
Currency”) for the purpose of:






	 	(i)	 	making or filing a claim or proof against the Borrower;
or
	 
	 	(ii)	 	obtaining or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,






	 	 	 	the Borrower shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom that Sum is due against any
cost, loss or liability arising out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (B) the rate or rates of exchange available to that
person at the time of its receipt of that Sum.







39









 









	 	(b)	 	The Borrower waives any right it may have in any jurisdiction to pay any amount under
the Finance Documents in a currency or currency unit other than that in which it is
expressed to be payable.






	14.2		Expenses; Indemnity






	 	(a)	 	The Borrower agrees to indemnify the Administrative Parties, each Lender and each
Related Party of any of the foregoing persons (each such person being called an
“Indemnitee“) against, and to hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related costs and expenses, including reasonable counsel
fees, disbursements and other charges, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution or delivery
of this Agreement or any other Finance Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations thereunder
or the consummation of the transactions and the other transactions contemplated thereby,
(ii) the use of the proceeds of the Loans, (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence or Release of Hazardous Substances on any
property owned or operated by the Borrower or any Environmental Claim related to the
operations of the Borrower; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or related costs
and expenses are determined by a court of competent jurisdiction to have resulted from
primarily the gross negligence or wilful misconduct of such Indemnitee (and, upon any such
determination, any indemnification payments with respect to such losses, claims, damages,
liabilities or related costs and expenses previously received by such Indemnitee shall be
subject to reimbursement by such Indemnitee);
	 
	 	(b)	 	To the extent permitted by applicable
Law, the Borrower shall not assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement or any agreement or instrument contemplated hereby, the Loan or
the use of the proceeds thereof.
	 
	 	(c)	 	The provisions of this clause 14.2 (Expenses; Indemnity) shall remain operative and in
full force and effect regardless of the expiration of the term of this Agreement, the
consummation of the Transactions or the other transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the invalidity or
unenforceability of any term or provision of this Agreement or any other Finance Document,
or any investigation made by or on behalf of the Administrative Parties or any Lender. All
amounts due under this clause 14.2 (Expenses; Indemnity) shall be payable on written demand
therefor.






	14.3	 	Indemnity to the Security Agent






	 	(a)	 	The Security Agent may, in priority to any payment to the Finance Parties, indemnify
itself out of the Collateral in respect of, and pay and retain, all sums necessary to give
effect to the indemnity in this clause 14.3 (Indemnity to the Security Agent) and shall
have a lien on the Collateral and the proceeds of the enforcement of the Collateral for all
moneys payable to it.






40









 









	15.	 	MITIGATION
	 
	15.1	 	Mitigation






	 	(a)	 	Each Finance Party shall, in consultation with the Borrower, take all reasonable steps
to mitigate any circumstances which arise and which would result in any amount becoming
payable under or pursuant to, or cancelled pursuant to, any of clause 12 (Tax gross up and
indemnities) or clause 13 (Increased Costs) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another Affiliate or Facility Office.
	 
	 	(b)	 	Clause 15.1(a) does not in any way limit the obligations of the Borrower under the
Finance Documents.






	15.2	 	Limitation of liability






	 	(a)	 	The Borrower shall promptly indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it under clause
15.1 (Mitigation).
	 
	 	(b)	 	A Finance Party is not obliged to take any steps under clause 15.1 (Mitigation) if, in
the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.






	16.	 	COSTS AND EXPENSES
	 
	16.1	 	Transaction expenses
	 
	 	 	Irrespective of whether or not any Commitment or Loan under this Agreement is implemented,
cancelled, utilised or otherwise withdrawn, the Borrower shall, within four Business Days
of demand, pay the Administrative Parties the amount of all costs and expenses (including
legal fees) reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of: 






	 	(a)	 	the Finance Documents and any
associated or ancillary documents executed on or around the date of this Agreement; and







	 	(b)	 	 any other Finance Documents and any associated or ancillary documents executed after the
date of this Agreement.







	 
	16.2	 	Amendment costs
	 
	 	 	If:






	 	(a)	 	the Borrower requests an amendment, waiver or consent in relation to a Finance
Document; or
	 
	 	(b)	 	an amendment is required pursuant to clause 30.9 (Change of currency),






	 	 	the
Borrower shall, within three Business Days of demand, reimburse each Agent for the amount
of all costs and expenses (including legal fees) reasonably incurred by that Agent in
responding to, evaluating, negotiating or complying with that request or requirement.










41









 












	16.3	 	Enforcement costs
	 
	 	 	The Borrower shall, within three Business Days of demand, pay to each Finance Party the
amount of all costs and expenses (including legal fees) incurred by that Finance Party in
connection with the enforcement of, or the preservation of any rights under, any Finance
Document.
	 
	16.4	 	Borrower’s costs
	 
	 	 	The Borrower shall itself bear any costs and expenses incurred by itself which are similar
to those costs and expenses contemplated in clauses 16.1 (Transaction expenses) to 16.3
(Enforcement costs).
	 
	17.	 	REPRESENTATIONS
	 
	17.1	 	General
	 
	 	 	The Borrower makes the representations and warranties set out in this clause 17
(Representations) to each Finance Party on the date of this Agreement and as set out in
clause 17.36 (Repetition) (and “it”, when used herein, shall be deemed to refer to the
Borrower.)
	 
	17.2	 	Organisation, Powers
	 
	 	 	The Borrower (a) is duly organised, validly existing and in good standing under the Laws of
its jurisdiction of organisation, (b) has all requisite corporate power and authority, and
the legal right, to own and operate its property and assets, to lease the property it
operates as lessee and to carry on its business as now conducted and as proposed to be
conducted in respect of the Project, (c) is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required except where the
failure to so qualify would not reasonably be expected to result in a Material Adverse
Effect and (d) has the power and authority, and the legal right, to execute, deliver and
perform its obligations under this Agreement, each of the other Finance Documents and each
other agreement or instrument contemplated hereby or thereby to which it is or will be
party, including, to borrow hereunder.
	 
	17.3	 	Authorisation, No Conflicts
	 
	 	 	This Agreement, each Finance Document and the transactions contemplated thereunder: (a)
have been duly authorised by all requisite corporate, and, if required, stockholder action
on the part of the Borrower and (b) will not (i) violate (A) any provision of Law, statute,
rule or regulation, or the organisational documents of the Borrower, (B) any order of any
Governmental Authority or arbitrator applicable to the Borrower or (C) any provision of any
Project Document, indenture, agreement or other instrument to which the Borrower is a party
or by which the Borrower or any of the Borrower’s property is or may be bound, except any
of the foregoing that would not reasonably be expected to result in a Material Adverse
Effect; (ii) be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under, or give rise to any right to accelerate or to
require the prepayment, repurchase or redemption of any obligation under any such Project
Document, indenture, agreement or other instrument except any of the foregoing that would
not reasonably be expected to result in a Material Adverse Effect; or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by the Borrower (other than Permitted Liens).






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	17.4	 	Governing law and enforcement
	 
	 	 	Subject to the Legal Reservations:






	 	(a)	 	the choice of governing law of each of the Finance Documents will be recognised and
enforced in its Relevant Jurisdictions; and
	 
	 	(b)	 	any judgment obtained in relation to a
Finance Document in the jurisdiction of the governing law of that Finance Document will be
recognised and enforced in its Relevant Jurisdictions.






	17.5	 	Enforceability
	 
	 	 	Subject to any Legal Reservations, this Agreement has been duly executed and delivered by
the Borrower and constitutes, and each other Finance Document when executed and delivered
by the Borrower will constitute, a legal, valid and binding obligation of the Borrower
enforceable against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganisation, moratorium or other Laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at Law. None of the Finance Documents to which the Borrower is
party has been amended or modified subsequent to having been delivered to the Facility
Agent, except as permitted under this Agreement.
	 
	17.6	 	Governmental Approvals
	 
	 	 	No action, consent or approval of, registration or filing with, Permit from, notice to, or
any other action by, any Governmental Authority is required in connection with the
transactions contemplated by the Finance Documents, except for (a) the filing of Uniform
Commercial Code financing statements, (b) recordation of the Deed of Trust, (c) such as
have been made or obtained and are in full force and effect and (d) such minor approvals
the absence of which would not be considered material by a prudent mining industry operator
or owner (of a similar project, similarly situated) and which would not or would not be
reasonably likely to have a Material Adverse Effect.
	 
	17.7	 	Title to Properties; Possessions Under Leases
	 
	 	 	Except in relation to any minor defects in title or standard exceptions or exclusions in
each case set out in the Title Policy which the Facility Agent (acting reasonably) does not
require to be cured, remedied or otherwise addressed by the Borrower:






	 	(a)	 	the Borrower has
good and, with respect to all Property Rights included in the Title Policy, insurable title
to, or valid leasehold interests in, all its material properties and assets (including all
Property Rights), except for minor defects in title that, in the aggregate, are not
substantial in amount and do not materially detract from the value of the property subject
thereto or interfere with its ability to conduct its business as
currently conducted or to utilize such properties and assets for their intended
purposes. The Project is free from material structural defects and all systems
contained therein are in good working order and condition, ordinary wear and tear
excepted, suitable for the purposes for which they are currently being used. No
portion of the Property Rights has suffered any material damage by fire or other
casualty loss that has not heretofore been completely repaired and restored to its
original condition. Each parcel of Property Rights and the current use thereof
complies with all applicable Laws (including building and zoning ordinances and codes)
and with all insurance requirements except for such noncompliance which





43









 






	 	 	 	would not or would not be reasonably likely to have a Material Adverse Effect; the
Borrower is not a non-conforming user of any Property Rights.
	 
	 	(b)	 	the Borrower, and, to the knowledge of the Borrower, each other party thereto, has complied
with all obligations under all material leases to which it is a party and all such leases are
legal, valid, binding and in full force and effect and are enforceable in accordance with their
terms. The Borrower enjoys peaceful and undisturbed possession under all such material leases.
No landlord Lien has been filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any lease payment under any material lease. None of the Property
Rights included in the Mortgage and Deed of Trust is subject to any lease, sublease, license or
other agreement granting to any person (other than the Borrower) any right to the use,
occupancy, possession or enjoyment of the Property Rights or any portion thereof, except for
non-possessory rights to ingress or egress or other minor rights which do not materially
interfere with the Borrower’s use occupancy, possession or enjoyment of the Property Rights and
which would not or would not be reasonably likely to have a Material Adverse Effect.
	 
	 	(c)	 	the Borrower has not received any notice of, nor has any knowledge of, any pending or
contemplated condemnation proceeding affecting the Property Rights or any sale or disposition
thereof in lieu of condemnation.
	 
	 	(d)	 	the Borrower is not obligated under any right of first refusal, option or other contractual
right to sell, assign or otherwise dispose of any Property Rights or any interest therein.
	 
	 	(e)	 	there are no pending or, to the knowledge of the Borrower, proposed special or other
assessments for public improvements or otherwise affecting any material portion of the owned
Property Rights, nor are there any contemplated improvements to such owned Property Rights that
may result in such special or other assessments. The Borrower has not suffered, permitted or
initiated the joint assessment of any owned Property Rights with any other Property Rights
constituting a separate tax lot. Each owned parcel of Property Rights is comprised of one or
more parcels, each of which constitutes a separate tax lot and none of which constitutes a
portion of any other tax lot.
	 
	 	(f)	 	the Borrower has obtained all permits, licenses, variances and certificates required by
applicable Law to be obtained and necessary to the use and operation of each parcel of Property
Rights, except where the failure to have such permit, license, certificate or variance would
not prohibit the use of such parcel of Property Rights as it is currently being used. The use
being made of each parcel of Property Rights conforms with the certificate of occupancy and/or
such other permits, licenses, variances and certificates for such Property Rights and any other
restrictions, covenants or conditions affecting such Property Rights, except for any such
nonconformity that could not reasonably be expected to be enjoined or to result in material
fines.






	17.8	 	Title to Production
	 
	 	 	Except as may arise by virtue of any minor defects in title set out in the Mining Report which
the Facility Agent does not require to be cured, remedied or otherwise addressed by the
Borrower pursuant to clause 4.4(b), the Borrower has the capacity and the right to assign to
the Finance Parties legal and beneficial title to all Gold and other Production which it may
contract to deliver to such parties under any Finance Document, free and clear of all Liens or
claims except for Permitted Liens and the royalty and earn-in arrangements.





44









 






	17.9	 	Permits






	 	(a)	 	Having made due and careful enquiry, the Borrower has and is in possession of all
Applicable Permits and is in compliance with all the material terms thereof.
	 
	 	(b)	 	The Borrower has and is in possession of all Permits under existing Laws required or
necessary for the conduct of the business of the Borrower (other than Applicable Permits)
which, if the same were not held, would or would be reasonably likely to have a Material
Adverse Effect.
	 
	 	(c)	 	In relation to the Permits held by the Borrower as described in sub-clauses (a) and (b)
above, the same are in full force and effect and, except as disclosed therein, are not
subject to any current legal proceeding to which the Borrower is a party or, to the
Borrower’s knowledge, to any unsatisfied condition that would or would be reasonably likely
to have a Material Adverse Effect, and, except as disclosed therein, all statutorily
prescribed appeal periods with respect to the issuance of such Permits have expired. The
Borrower is in compliance with all Permits except to the extent that such non-compliance
would not or would not be reasonably likely to result in a Material Adverse Effect.






	17.10	 	Hazardous Substances






	 	(a)	 	To the knowledge of the Borrower: (A) it is not in violation of (or received any notice
that it is in violation of) any Environmental Law which violation would reasonably be
expected to subject the Finance Parties to liability or to result in an Environmental Claim
against the Borrower or its properties and assets; (B) it has not Released any Hazardous
Substances in, on, or under the Site in violation of Environmental Law that would
reasonably be expected to subject the Finance Parties to liability or the Borrower to
liability, under any Environmental Law; (C) there are no underground tanks, whether
operative or temporarily or permanently closed, located on the Site; and (D) there are no
Hazardous Substances used, generated, manufactured, produced, transported thereto or
therefrom, stored or present at or on the Site, except as necessary in the ordinary course
of business and in material compliance with Environmental Laws, in each case of (A) through
(D) above that would or would be reasonably likely to have a Material Adverse Effect.
	 
	 	(b)	 	To the knowledge of the Borrower, there is no pending or threatened Environmental
Claims by any Governmental Authority (including the U.S. Environmental Protection Agency)
or any non-governmental third party with respect to the presence or Release of Hazardous
Substances in, on or from the Site or the Improvements, that would reasonably be expected
to have a Material Adverse Effect.






	17.11	 	Labour Disputes
	 
	 	 	Neither the business nor the properties of the Borrower are being affected by any strike,
lockout or other labour dispute which would reasonably be expected to have a Material
Adverse Effect.
	 
	17.12	 	Taxes
	 
	 	 	Each Obligor has filed all material federal, state and local tax returns that it is
required to file, has paid all material taxes that it is required to pay to the extent due
(other than those
taxes that it is contesting in good faith and by appropriate proceedings, with adequate,
segregated






45









 









	 	 	reserves established for such taxes) and, to the extent such taxes are not due, has
established reserves that are adequate for the payment thereof and are required by US GAAP.
	 
	17.13	 	Intellectual Property






	 	(a)	 	The Borrower owns or has the right to use all patents, trademarks, service marks, trade
names, copyrights, licenses and other rights which are necessary for the operation of its
business (the “IP Rights") and which the failure of the Borrower to so own or have the
right to use would reasonably be expected to result in a Material Adverse Effect. No
material product, process, method, substance, part or other material presently contemplated
to be sold or employed by the Borrower in connection with its business will infringe any
patent, trademark, service mark, trade name, copyright, license or other right owned by any
other person which would or would be reasonably likely to have a Material Adverse Effect.
	 
	 	(b)	 	The Borrower does not require any licence from, or the consent of the Guarantor or any
third party to use, the IP Rights which relate to the Project.






	17.14	 	Validity and admissibility in evidence
	 
	 	 	It maintains and is in compliance with all Authorisations required under any applicable Law
or regulation:






	 	(a)	 	to enable it lawfully to enter into, exercise its rights and comply with
its obligations in each Finance Document to which it is a party; and
	 
	 	(b)	 	to make each
Finance Document to which it is a party admissible in evidence in its jurisdiction of
incorporation.






	17.15	 	Compliance with Laws
	 
	 	 	It is conducting its business and operations in compliance with all Laws and regulations to
which it may be subject, and is otherwise in compliance with all Laws and regulations
applicable to it, except to the extent that failure to so comply would not be considered
material by a prudent mining industry operator or owner (of a similar project, similarly
situated) and which would not or would not be reasonably likely to have a Material Adverse
Effect.
	 
	17.16	 	Regulations T, U and X
	 
	 	 	It is not engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of the Loans will be used for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation U or X. Terms for which
meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted
therefor, as from time to time in effect, are used in this clause with such meanings.
	 
	17.17	 	Deduction of Tax
	 
	 	 	It is not required under the Law of its jurisdiction of incorporation to make any deduction
or withholding for or on account of Tax from any payment it may make under any Finance
Document.






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	17.18	 	No filing or stamp taxes
	 
	 	 	As at the date of this Agreement, under the Law of its jurisdiction of incorporation it is
not necessary:






	 	(a)	 	that any Finance Document be filed, recorded or enrolled with any court
or other authority in that jurisdiction; or
	 
	 	(b)	 	that any stamp, registration or similar tax
be paid on or in relation to any Finance Document or the transactions contemplated by any
Finance Document, except for local costs for the recording of such documents as required by
this Agreement






	17.19	 	No default






	 	(a)	 	No Default is continuing or would reasonably be expected to result from the making of
the Utilisation.
	 
	 	(b)	 	(No other event or circumstance is continuing which constitutes a default or an event
of default (howsoever described) under any other agreement or instrument which is binding
on it or to which its assets are subject which might constitute or result in a Material
Adverse Effect.






	17.20	 	No misleading information
	 
	 	 	As of the Closing Date, there is no fact, which has had or would be reasonably likely to
have a Material Adverse Effect which has not been set forth in this Agreement or which has
not otherwise been disclosed to the Administrative Parties by the Borrower prior to the
Closing Date in connection with the transactions contemplated hereby or thereby. As of the
Closing Date, all factual statements made to the Administrative Parties and all
documentation furnished to the Administrative Parties by the Obligors, taken as a whole,
including written updated or supplemented information delivered on or prior to the Closing
Date, are true and correct in all material respects.
	 
	17.21	 	No changes






	 	(a)	 	Since the date of its Original Financial Statements, the Borrower has not:






	 	(i)	 	entered into any amalgamation, demerger, merger or corporate reconstruction (or
any analogous procedure or step in any jurisdiction) without the prior written
consent of the Facility Agent (acting on the instructions of the Majority Lenders);
or
	 
	 	(ii)	 	made any substantial change to the general nature of its business.






	 	(b)	 	Since the date of the Original Financial Statements, the Borrower represents that there
has been no change in the financial condition of the Guarantor which could reasonably be
expected to have a Material Adverse Effect.






	17.22	 	Financial statements






	 	(a)	 	Any Original Financial Statements were prepared in accordance with US GAAP consistently
applied.






47









 









	 	(b)	 	Any Original Financial Statements fairly represent the Guarantors consolidated
financial condition and operations (consolidated in the case of the Guarantor) during the
relevant period.
	 
	 	(c)	 	There has been no Material Adverse Effect since the last date of the period for which
the Original Financial Statements were prepared or since the last date of the period for
which the most recent set of financial statements were prepared and which are required to
be delivered by the Borrower to the Facility Agent pursuant to clause 18.1 (Financial
statements and Project reports).






	17.23	 	No undisclosed liabilities
	 
	 	 	As at the date as of which its most recent audited financial statements were prepared
(which, at the date of this Agreement, are the Original Financial Statements), it did not
have any material liabilities (contingent or otherwise) which were not disclosed thereby
(or by the notes thereto) or reserved against therein nor any unrealised or anticipated
losses arising from commitments entered into by it which were not so disclosed or reserved
against.
	 
	17.24	 	No winding-up
	 
	 	 	It has not taken any corporate action, nor have any other steps been taken or legal
proceedings been started or threatened against it for its winding-up, dissolution,
administration or reorganisation or for the appointment by it (or on its behalf) of a
receiver, administrator, administrative receiver, trustee or similar officer in relation to
itself or all or any of its assets or revenues.
	 
	17.25	 	No proceedings pending or threatened
	 
	 	 	No litigation, arbitration or administrative proceedings of or before any court, arbitral
body or agency (including any relating to Environmental Law) which, if adversely
determined, might reasonably be expected to constitute or result in a Material Adverse
Effect, have (to the best of its knowledge and belief) been started or threatened against
it.
	 
	17.26	 	No Security
	 
	 	 	There is no Security affecting any property or assets of the Borrower other than the
Permitted Liens.
	 
	17.27	 	No immunity
	 
	 	 	Subject to the Legal Reservations, in any proceedings taken in any jurisdiction in relation
to any Finance Document, it is not entitled to claim for itself or any of its assets
immunity from suit, execution, attachment or other legal process.
	 
	17.28	 	Insurance
	 
	 	 	The Borrower maintains Insurance in full force and effect at all times which satisfies
clause 19 (Insurance) herein.
	 
	17.29	 	Financial Indebtedness
	 
	 	 	The Borrower has no Financial Indebtedness save for Permitted Financial Indebtedness.






48












 






	17.30	 	Ranking
	 
	 	 	Subject to the Legal Reservations, the Liens granted to the Security Agent pursuant to the
Security Documents (a) constitute first priority valid and subsisting liens of record on
such rights, title or interest as the Borrower shall from time to time have in all Property
Rights covered by the Mortgage, (b) constitute first priority perfected security interests
in such rights, title or interest as the Borrower shall from time to time have in all
personal property included in the Collateral, (c) constitute first priority perfected
security interests in the Guarantor’s right, title, and interest to the 100 per cent of the
shares of the Borrower and (d) in each case with respect to (a)-(c) above are subject to no
Liens except Permitted Liens. Except (i) to the extent possession of portions of the
Collateral is required for perfection, (ii) in relation to any IP Rights (as such term is
defined in clause 17.13(a)) or motor vehicles which are part of the Collateral or (iii) as
otherwise agreed by the Borrower and the Facility Agent, all such action as is necessary
has been taken to establish and perfect the Security Agent’s
rights in and to the Collateral, including any recording, filing, registration, giving of
notice or other similar action (assuming proper recordation of any such documents). Except as
otherwise agreed by the Borrower and the Facility Agent, the Borrower and Guarantor have
properly delivered or caused to be delivered to the Security Agent all Collateral that requires
perfection of the Liens and security interests described above by possession.
	 
	17.31	 	Certified Copies
	 
	 	 	Any copy of a document (the “original document”) provided to any Finance Party by or on
behalf of it which purports to be certified by one of its duly authorised officers or
directors as a true, complete and up-to-date copy of the original document is a true,
complete and accurate copy of the original document and is up to date as at the date on
which it was provided.
	 
	17.32	 	Transaction Documents






	 	(a)	 	It has not breached any of the terms of any Transaction Document to which it is a
party, other than any minor breach that would not or would not be reasonably likely to have
a Material Adverse Effect.
	 
	 	(b)	 	It is not aware of any dispute or potential dispute with any counterparty to a
Transaction Document to which it is a party.






	17.33	 	Investment Company Act
	 
	 	 	The Borrower is not required to register as an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended.
	 
	17.34	 	Employee Benefit Plans
	 
	 	 	The Borrower does not sponsor a Benefit Plan.
	 
	17.35	 	Capital Equipment Leases
	 
	 	 	Save in respect of any equipment provided or owned by an Approved Contractor, the equipment
the subject of the Capital Equipment Leases is the only equipment which the Borrower
requires to achieve Final Completion.




49









 












	17.36	 	Repetition






	 	(a)	 	The Repeating Representations are deemed to be made by the Borrower by reference to the
facts and circumstances then existing on submission of the Utilisation Request, on the
Utilisation Date and on the first day of each Interest Period thereafter.
	 
	 	(b)	 	Each representation and warranty deemed to be made after the date of this Agreement
shall be deemed to be made by reference to the facts and circumstances existing at the date
the representation or warranty is deemed to be made.






	18.	 	INFORMATION UNDERTAKINGS
	 
	 	 	The undertakings in this clause 18 (Information undertakings) shall remain in force from
the date of this Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
	 
	18.1	 	Financial statements and Project reports
	 
	 	 	The Borrower shall supply to the Facility Agent in sufficient copies for all the
Lenders:






	 	(a)	 	In respect of the Guarantor:






	 	(i)	 	as soon as the same become available, but in any event within 10 days after the
date of filing with the SEC, a copy of the SEC Form 10-k filed by the Guarantor
with the SEC for such Fiscal Year, or if no such Form 10-k was filed by the
Guarantor for such Fiscal Year, the audited consolidated financial statements of
the Guarantor and its subsidiaries for that Fiscal Year;
	 
	 	(ii)	 	as soon as the same
become available, but in any event within 10 days after the date of filing with the
SEC, a copy of the SEC Form 10-Q filed by the Guarantor with the SEC for each such
Fiscal Quarter, or if no such Form 10-Q is available, the unaudited consolidated
financial statements of the Guarantor for that quarter; and
	 
	 	(iii)	 	promptly, but not
later than 10 days after the date of filing with the SEC, copies of all financial
statements and reports that Guarantor sends to its shareholders, and copies of all
financial statements and regular, periodical or special reports (including Forms
8-K, 10-K and 10-Q) that Guarantor or any of its Subsidiaries may make to, or file
with, the SEC or any securities exchange;






	 	 	 	(such requirement in respect of the
Guarantor shall be satisfied by way of subscription by the Facility Agent, which
the Guarantor shall facilitate, to receive all publically available financial
information circulated by the Guarantor by email from time to time, unless such
information is not for any reason available or is not duly delivered pursuant to
such subscription within the timescales set out above).
	 
	 	(b)	 	in respect of the Borrower:






	 	(i)	 	as soon as the same become available, but in any event not later than the time
specified for the Guarantor under clause 18.1(a)(i), the unaudited financial
statements of the Borrower for that Fiscal Year;




50









 












	 	(ii)	 	as soon as the same become available, but in any event not later than the time
specified for the Guarantor under clause 18.1(a)(ii), the Quarterly Management Accounts of
the Borrower for that Fiscal Quarter;
	 
	 	(iii)	 	as soon as it becomes available, but in any
event with 15 days of the end of each period of one Month from the date of this Agreement
until the Final Completion Date, the Monthly Construction Report and the Monthly
Expenditure Statement for each such period;
	 
	 	(iv)	 	as soon as it becomes available, but in
any event with 30 days of the end of each calendar month, the Production Report of the
Borrower for that month;
	 
	 	(v)	 	a certified board-approved revised Life of Mine Plan within 30
days of such board approval and not more than 365 days after the provision of the previous
Life of Mine Plan and in respect of which revised Life of Mine Plan all revisions will be
subject to review and approval in accordance with clause
21.7 (Amendment of and exercise of rights under the Transaction Documents and
Amendment of Life of Mine Plan).






	 	(c)	 	If at any time the Guarantor ceases to be subject to the requirement to file accounts with
the SEC, the Borrower shall procure the delivery of the information specified in clause 18.1(a)
and 18.1(b) within the period or periods specified by the Facility Agent, acting reasonably
(but in any event, no earlier than the date on which such information should have been provided
if the Guarantor had remained subject to the requirements of the SEC).






	18.2	 	Requirements as to financial statements






	 	(a)	 	Each set of financial statements delivered by the Borrower pursuant to clause 18.1
(Financial statements and Project reports) and 18.1(b)(i) and 18.1(b)(ii) shall be
certified by an officer of the relevant Obligor as fairly representing its financial
condition as at the date as at which those financial statements were drawn up.
	 
	 	(b)	 	The Borrower shall ensure that each set of financial statements of the Guarantor
delivered pursuant to clause 18.1 (Financial statements and Project reports) is prepared
using US GAAP, accounting practices and financial reference periods consistent with those
applied in the preparation of the Original Financial Statements for the Guarantor unless,
in relation to any set of financial statements, it notifies the Facility Agent that there
has been a change in US GAAP, the accounting practices or reference periods and its
auditors (or, if appropriate, the auditors of the Guarantor) deliver to the Facility Agent,
a description of any change necessary for those financial statements to reflect the US
GAAP, accounting practices and reference periods upon which the Guarantor’s Original
Financial Statements were prepared.






	 	 	Any reference in this Agreement to those financial statements shall be construed as a
reference to those financial statements as adjusted to reflect the basis upon which the
Original Financial Statements were prepared.




51









 












	18.3	 	Information: miscellaneous
	 
	 	 	The Borrower shall supply to the Facility Agent (in sufficient copies for all the Lenders,
if the Facility Agent so requests):






	 	(a)	 	all documents dispatched by each Obligor to its
shareholders (or any class of them) or its creditors generally at the same time as they are
dispatched (such requirement in respect of the Guarantor to be satisfied by way of
subscription by the Facility Agent, which the Guarantor shall facilitate, to receive all
publically available information circulated by the Guarantor by email from time to time);
	 
	 	(b)	 	promptly upon becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending against any Obligor,
and which might, if adversely determined, constitute a Material Adverse Effect; and
	 
	 	(c)	 	promptly, such further information regarding the financial condition, business and
operations of any Obligor as any Finance Party (through the Facility Agent) may reasonably
request, in each case, only where such disclosure or provision of information or documents
would not be in breach of any Law.






	18.4	 	Access to Collateral
	 
	 	 	If an Event of Default has occurred and is continuing, upon the request of the Facility
Agent (on the instruction of any Lender) the Borrower shall provide the Facility Agent and
any of its representatives, professional advisers and contractors with access to inspect
the Collateral of the Borrower, in each case at reasonable times and upon reasonable
notice, subject to any reasonable confidentiality requirements of the Borrower.
	 
	18.5	 	Notification of Default






	 	(a)	 	The Borrower shall notify the Facility Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence.
	 
	 	(b)	 	Promptly upon a request by the Facility Agent, the Borrower shall supply to the
Facility Agent a certificate signed by two of its officers on its behalf certifying that no
Default is continuing (or if a Default is continuing, specifying the Default and the steps,
if any, being taken to remedy it).






	18.6	 	Notification of noncompliance
	 
	 	 	The Borrower shall notify the Facility Agent of any: (A) fact, circumstance, condition or
occurrence at, on or arising from, the Site or the Project that results in noncompliance
with any Environmental Law having, individually or in the aggregate, a Material Adverse
Effect or any Release of Hazardous Substances on or from the Project or any other part of
the Property Rights that has resulted in a Material Adverse Effect, and (B) pending
Environmental Claim having, individually or in the aggregate, a Material Adverse Effect
against the Borrower or, to the Borrower’s knowledge, any of its Affiliates, contractors or
lessees arising in connection with its or their occupying or conducting operations on or at
the Project.




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	18.7	 	Notification of misrepresentation
	 
	 	 	The Borrower shall notify the Facility Agent promptly upon becoming aware that any
representation made or deemed to be made by an Obligor under any Finance Document has
become untrue or misleading in any material respect.
	 
	18.8	 	Disputes
	 
	 	 	The Borrower shall inform the Facility Agent promptly (and with reasonable detail) upon
becoming aware of any dispute or potential dispute with any counterparty to a Transaction
Document, save where such dispute is minor or frivolous and is resolved amicably within 10
Business Days of such dispute arising.
	 
	18.9	 	“Know your customer” checks






	 	(a)	 	If:






	 	(i)	 	the introduction of or any change in (or in the interpretation, administration
or application of) any Law or regulation made after the date of this Agreement;
	 
	 	(ii)	 	any change in the status of an Obligor after the date of this Agreement; or
	 
	 	(iii)	 	a proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer,






	 		 	obliges the Facility Agent or any Lender (or, in the case
of paragraph (iii) above, any prospective new Lender) to comply with “know your
customer” or similar identification procedures, in circumstances where the
necessary information is not already available to it, the Borrower shall (and shall
procure that the Guarantor shall) promptly upon the request of the Facility Agent
or any Lender supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Facility Agent (for itself or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described in
paragraph (iii) above, on behalf of any prospective new Lender) in order for the
Facility Agent, such Lender or, in the case of the event described in paragraph
(iii) above, any prospective new Lender to carry out and be satisfied it has
complied with all necessary “know your customer” or other similar checks under all
applicable Laws and regulations pursuant to the transactions contemplated in the
Finance Documents.






	 	(b)	 	Each Lender shall promptly upon the request of the Facility Agent supply, or procure
the supply of, such documentation and other evidence as is reasonably requested by the
Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied
that it has complied with all necessary “know your customer” or other similar checks under
all applicable Laws and regulations pursuant to the transactions contemplated in the
Finance Documents.




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	19.	 	INSURANCE
	 
	19.1	 	Insurance
	 
	 	 	So long as any Secured Liabilities remain outstanding, the Borrower, to the satisfaction of
the Facility Agent, shall:






	 	(a)	 	Insure or cause to be insured all Insurable Property then
owned by it against:






	 	(i)	 	loss, theft, damage, destruction and the usual risks against which
a prudent owner of property of a similar type to that property and in a similar business
and location would insure and any other risks specified by the Facility Agent and as is
necessary in order to comply with any applicable Law; and
	 
	 	(ii)	 	any liability from time to
time of each Finance Party and the Loan Party arising from its ownership, use or occupation
of Property Rights,






	 	 	 	and for greater certainty, such insurance will include (but not be
limited to) coverage of the following:






	 	(iii)	 	during the period prior to Final Completion, construction all-risks;
	 
	 	(iv)	 	public liability;
	 
	 	(v)	 	marine cargo, loss of shipment (if applicable);
	 
	 	(vi)	 	workers’ compensation;
	 
	 	(vii)	 	motor vehicle;
	 
	 	(viii)	 	any other insurance required by applicable Law; and
	 
	 	(ix)	 	during the period after Final Completion, business interruption.






	 	(b)	 	Ensure that all Insurance will:






	 	(i)	 	be placed with an Approved Insurer and fully underwritten;
	 
	 	(ii)	 	have each Finance Party named as an additional insured (if permitted by the
insurer under the applicable policy) and loss payee;






	 	(c)	 	Supply to the Facility Agent,
prior to the renewal of or anniversary of any Insurance, a list of insurers to be approved
by the Facility Agent (acting reasonably). If the Facility Agent does not approve any such
insurers they shall not be or shall cease to be (as applicable) Approved Insurers for the
purpose of sub-clause (b) above.
	 
	 	(d)	 	Ensure that all Insurance against loss, theft, damage or destruction of the Insurable
Property will be for the full reinstatement value thereof from time to time, unless the
Facility Agent otherwise agrees in writing.
	 
	 	(e)	 	Ensure that copies of all documents relating to the Insurance effected by it, including the
certificate of Insurance, the relevant policies, all renewal certificates, certificates of
currency and endorsement slips, are to be delivered by it to the Facility Agent promptly on
request.




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	 	(f)	 	Maintenance of Insurance.






	 	(i)	 	Duly and punctually pay or cause to be paid all premiums and other money
payable under, and perform, observe and fulfil the terms of, all Insurance; (ii)
promptly upon request, forward a copy of the current policies to the Facility
Agent;
	 
	 	(iii)	 	provide to the Facility Agent, annually no later than 30 days prior to
the end of each calendar year, an insurance certificate in form and substance
reasonably satisfactory to the Facility Agent from its insurers and brokers
confirming the Insurance herein contemplated;
	 
	 	(iv)	 	ensure that every policy of
Insurance:






	 	(A)	 	contains an agreement by the insurer that, notwithstanding the lapse
of any policy (except by reason of expiration in accordance with its terms) or any
right of cancellation of the insurer or any cancellation by the Borrower (whether
voluntary or involuntary), such policy will continue in force for the benefit of
each Finance Party in accordance with good industry practice until written notice
of cancellation has been sent by certified mail to the Facility Agent and that no
reduction in limits or coverage in that policy in whole or part will be effected
except with the prior consent of the Facility Agent; and
	 
	 	(B)	 	insures each Finance
Party’s interest up to the limits of the policy regardless of any breach or
violation by the Borrower of any warranties, declarations or conditions contained
in that policy.






	 	(g)	 	Not cause and will not permit anything to be done which may:






	 	(i)	 	render any part of the Insurance void, voidable or otherwise unenforceable;
	 
	 	(ii)	 	hinder or prevent in any material respect the recovery of any money in respect
of the Insurance; or
	 
	 	(iii)	 	in any respect cause the premiums and other money
payable to any insurer to be increased.






	19.2	 	No Liability
	 
	 	 	No Finance Party will incur any liability to the Borrower or any other person arising out
of any failure by any Finance Party to effect or renew any Insurance, nor will any Finance
Party incur any liability arising out of any failure by the insurer for any reason to meet
any claim under any Insurance.
	 
	19.3	 	Options as to Payments






	 	(a)	 	If any part of the property, assets or undertaking of the Borrower that is the subject
of the Insurance is lost, stolen, damaged or destroyed and any sum becomes payable under
any Insurance, then the sum received under any Insurance will be credited to the Proceeds
Account and will thereafter be applied as follows:




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	 	(i)	 	if the sum is below US$500,000, towards the replacement or repair of such property ; or
	 
	 	(ii)	 	if the sum is equal to or above US$500,000, then at the option of the Security Agent,
acting reasonably:






	 	(A)	 	as contemplated by section 19.3(a)(i);
	 
	 	(B)	 	in prepayment of the Loan
in accordance with this Agreement; or
	 
	 	(C)	 	towards any purpose otherwise approved by the
Facility Agent.






	 	(b)	 	Any sum received by the Facility Agent under any Insurance (other than a sum which is
payable to a third party that is not an Obligor) will be held by the Facility Agent in an
interest bearing account pending application in accordance with this clause 19.3 (Options as to
Payments).






	20.	 	FINANCIAL COVENANTS
	 
	 	 	In this Agreement:
	 
	 	 	“Cash Operating Costs” means with respect to the Borrower for any period, the sum (without
duplication) of the following amounts, in each case to the extent paid by or on behalf of the
Borrower in relation to the Project during such period: (a) all mining costs, (b) processing
costs and (c) general and administrative costs, as each such category of costs are set out in
the Life of Mine Plan and as such costs are reflected in the financial statements of the
Borrower from time to time;
	 
	 	 	“Capital Expenditures” means with respect to the Borrower for any
period, expenditures or costs for fixed or capital assets made during such period which in
accordance
with US GAAP are characterised as capital expenditures;
	 
	 	 	“Debt to Equity Ratio” means the ratio,
expressed as a percentage of Total Financial Indebtedness to Equity.
	 
	 	 	“Debt Service Cover” means for any Fiscal Quarter or other period of determination, means the
ratio of Project Cash Flow for such period to Debt Service for such period. For the purposes
of this definition, if the interest payable on the Loan for any future period in question is
not determinable in advance because the interest rate is not a fixed rate, it shall be assumed
that the Loan will bear interest during such future period at the average interest rate in
effect with respect thereto during the three months immediately preceding such period;
	 
	 	 	“Debt
Service” means for any period of determination, the sum, without duplication, of (a) all
amounts payable by the Borrower during such period in respect of the principal of, and interest
on, the Loan, plus (b) fees payable hereunder or otherwise in respect of the Commitment, plus
(d) all other amounts in respect of principal, interest and fees payable by the Borrower during
such period to the Finance Parties pursuant to the Finance Documents (upon the payment date
thereof, by acceleration or otherwise);
	 
	 	 	“Equity” means the amount of the paid up share capital
of the Borrower less the aggregate nominal value of the shares in the capital of the Borrower
held by the Guarantor (if any) plus the aggregate amount of any subordinated loans or other
contributions to the Borrower which are treated as equity of the Borrower in accordance with US
GAAP, as applicable, and plus




56









 












	 	 	without limitation the amount of any reserves, but excluding any interest paid or payable in
respect of such amount including deferred, capitalised and default interest;
	 
	 	 	“Maximum
Production Cost” means the actual cost expressed in US Dollars per Ounce for production of Gold
by the Borrower during the relevant period as set out in the relevant Production Report
(inclusive of smelting and refining costs of Product), but excluding non-recurring costs as set
out in the Production Report;
	 
	 	 	“Project Cash Flow” means for any period of determination, the
amount, if any, by which Project Revenues of the Borrower for such period exceed the Cash
Operating Costs of the Borrower for such period;
	 
	 	 	“Project Revenues” means for any period of
determination, the sum (without duplication) of (a) all revenues received by the Borrower under
the Offtake Agreements and from sales of Gold during such period, plus (b) all other revenues
received by the Borrower during such period from the sale of Products generated by the Project
plus (c) all earnings during such period on Investments, cash, cash equivalents, securities and
other amounts deposited in the Accounts, plus (d) all proceeds of business interruption and
delayed opening insurance received by the Borrower during such period;
	 
	 	 	“Tangible Net Worth”
means at any time the aggregate at such time of:






	 	(a)	 	the amounts paid up, or credited as paid up, on the issued share capital of the Guarantor
and/or (as the case may be) the Borrower, as determined under US GAAP;
	 
	 	(b)	 	any balance on the
profit and loss account of the Guarantor and/or (as the case may be) the Borrower under US GAAP
including retained earnings);
	 
	 	(c)	 	any amount standing to the credit of any other capital and
revenue reserves of the Guarantor and/or (as the case may be) the Borrower under US GAAP including
any contributed surplus and capital redemption reserve; and
	 
	 	(d)	 	the amount of any fully
subordinated loans made by the Guarantor to the Borrower,






	 	 	less the aggregate at such time of:






	 	(a)	 	all amounts attributable to goodwill and other intangible assets; and
	 
	 	(b)	 	any reserves attributable to interests of minority shareholders in the Guarantor and/or (as
the case may be) the Borrower;






	 	 	“Testing Date” means:






	 	(a)	 	for the Fiscal Quarter of the Guarantor and/or (as the case may be) the Borrower ending 31
December in any Fiscal Year, the date of receipt by the Facility Agent of the audited annual
consolidated financial statements for such Fiscal Year of the Guarantor and/or (as the case may be)
the Borrower as delivered by the Borrower to the Facility Agent in accordance with clause 18.1
(Financial statements and Project reports); and
	 
	 	(b)	 	for each Fiscal Quarter of the Guarantor ending
31 March, 30 June and 30 September in any Fiscal Year, the date of receipt by the Facility Agent of
the quarterly of the unaudited consolidated financial statements of the Guarantor or (as the case
may be) the Borrower for that Fiscal Quarter, as delivered by the Borrower to the Facility




57









 












	 	 	 	Agent in accordance with clause 18.1(a)(ii) (Financial statements and Project
reports);






	 	 	“Total Financial Indebtedness” means the aggregate of:






	 	(a)	 	all amounts outstanding as Loans pursuant to this Facility; and
	 
	 	(b)	 	all other amounts outstanding under any other Financial Indebtedness of the Borrower.






	20.1	 	Financial covenants






	 	(a)	 	Guarantor Tangible Net Worth:
	 
	 	 	 	Until the Final Completion Date, the Borrower shall ensure that at all times the
Tangible Net Worth of the Guarantor is no less than US$1,500,000,000.
	 
	 	(b)	 	Borrower Tangible Net Worth:
	 
	 	 	 	The Borrower shall ensure that at all times the Tangible Net Worth of the Borrower
is not less than US$325,000,000.
	 
	 	(c)	 	The Borrower shall ensure that at all times the Debt to Equity Ratio of the Borrower is
not higher than 40 per cent.
	 
	 	(d)	 	Debt Service Cover Ratio:
	 
	 	 	 	The Borrower shall ensure that at all times the Debt Service Cover of the Borrower
is not less than 125 per cent.
	 
	 	(e)	 	Maximum Production Cost
	 
	 	 	 	The Borrower shall ensure that the Maximum Production Cost is:






	 	(i)	 	in respect of the first and second Months following commencement of
Production, not greater than US$500; and
	 
	 	(ii)	 	in the period of three Months from
commencement of Production and thereafter in each period of three Months ending on
the last day of each succeeding Month, not greater than US$480 or such other
threshold as may be agreed between the Facility Agent (acting on the instructions
of Majority Lenders) and the Borrower pursuant to an annual review of such
threshold to be carried out as at the end of each Fiscal Year of the Borrower.






	20.2	 	Testing of Financial Covenants






	 	(a)	 	Each of the financial covenants in respect of the Guarantor as set out clauses
20.1(a)(a) to (d) shall be tested by calculation of the Facility Agent as at each
Testing Date by reference to the figures set out:






	 	(i)	 	in respect of the Fiscal
Quarter in each Fiscal Year ending 31 December, in the audited annual consolidated
financial statements of the Guarantor and/or the Borrower (as the case may be) as
delivered by the Borrower to the




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	 	 	 	Facility Agent in accordance with clause 18.1 (Financial statements
and Project reports); and
	 
	 	(ii)	 	in respect of each other Fiscal Quarter in
each Fiscal Year, in the unaudited consolidated financial statements of
the Guarantor and/or the Borrower (as the case may be) for that Fiscal
Quarter, as delivered by the Borrower to the Facility Agent in accordance
with clause 18.1 (Financial statements and Project reports).






	 	(b)	 	The financial covenant in respect of the Borrower as set out in clause 20.1(e) (Maximum
Production Cost) shall be tested by calculation of the Facility Agent once per month on the
date of receipt by the Facility Agent of the Production Report of the Borrower for that
month, (to be delivered by the Borrower to the Facility Agent in accordance with clause
18.1(b)(ii) (Financial statements and Project reports)), by reference to the figures as set
out in each such Production Report.






	21.	 	PROJECT UNDERTAKINGS
	 
	 	 	The undertakings in this clause 21 (Project undertakings) shall remain in force from the
date of this Agreement for so long as any amount is outstanding under the Finance Documents
or any Commitment is in force.
	 
	21.1	 	Life of Mine Plan
	 
	 	 	The Borrower shall conduct its business operations at all times substantially in accordance
with the Life of Mine Plan in effect at such time.
	 
	21.2	 	Project Maintenance and Management
	 
	 	 	The Borrower shall ensure that:






	 	(a)	 	the Construction Project is designed and constructed, substantially in accordance with
the Original Construction Plan and in a good and workmanlike manner;
	 
	 	(b)	 	the Mine Project
is managed, developed and operated and Production is maintained materially in
accordance with the Life of Mine Plan;
	 
	 	(c)	 	the Mine Project is managed, developed and
operated as would a prudent mining industry operator or owner (of a similar project,
similarly situated) and in accordance with generally accepted mining industry practices and
all applicable Laws;
	 
	 	(d)	 	the Site and the Collateral is maintained, protected and kept in a
good state of repair and in good working order and condition, and that it makes all
necessary repairs, renewals, replacements, additions and improvements thereto (except where
the same is obsolete or redundant); and
	 
	 	(e)	 	all necessary geotechnical work is carried out
on the Site prior to commencement of the Project;
	 
	 	(f)	 	drawings under clause 23.2(d) shall
be consistent (broadly) with the Capex Budget and in any given Month shall not deviate by
more than 50 per cent either above or below the anticipated drawings forecast in the Capex
Budget.




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	21.3	 	Milestones and reconciliation






	 	(a)	 	The Borrower shall as soon as possible after (and in any event within 15 days after)
the end of each Month between the date of this Agreement and the date of Final Completion,
deliver to the Facility Agent:






	 	(i)	 	a Monthly Construction Report which reports on the
progress of construction of the Construction Project, including a comparison of such
progress with the construction anticipated to have been carried out during such Month in
the Original Construction Plan and noting any differences therein;
	 
	 	(ii)	 	a Monthly
Expenditure Statement which reports on firstly, the Borrower’s liability to contractors on
the Construction Project incurred during the immediately preceding Month and secondly, the
Construction Costs actually disbursed by the Borrower to contractors working on the
Construction Project and recording any differences between them.






	 	(b)	 	If there is any material difference between the works as reported in any Monthly
Construction Report and the anticipated works as specified in the Original Construction
Plan for such Month, the Borrower will include in such Monthly Construction Report an
explanation of the same and, where the Facility Agent so requires (acting reasonably), a
Remedial Plan which are in each case satisfactory to the Facility Agent (acting
reasonably).
	 
	 	(c)	 	If the material difference between the works as reported in any Monthly Construction
Report and the anticipated works as specified in the Original Construction Plan in
sub-clause (b) above is a direct consequence of a cessation of construction work on or
above the ground which is caused by the onset of snow precipitation or other inclement
weather (a “Snow Event") (ignoring, for this purpose, any pause in such surface work which
is scheduled or anticipated in the Original Construction Plan) then the Remedial Plan
produced by the Borrower may assume that the Final Completion Date and the Final Completion
Default Date may be extended by such number of working days as is necessary (in the opinion
of the Facility Agent, acting reasonably) to ensure completion of the delayed surface work.
	 
	 	(d)	 	If the Construction Costs incurred by the Borrower in any Month are more than ten per
cent greater or less than those envisaged in the Capex Budget the Borrower shall include in
the Monthly Expenditure Statement an explanation, satisfactory to the Facility Agent
(acting reasonably), as to the adjustments that will be made to the Capex Budget, going
forward, to reflect such differences, including adjustments (if any) that need be made to
the Capex Budget to reflect the occurrence of a Snow Event. Any such adjustments to the
Capex Budget to reflect the occurrence of a Snow Event shall be deemed to be reasonable to
the extent that such adjustments accurately reflect the cessation of above surface
construction works which are attributable to such Snow Event.
	 
	 	(e)	 	If any items of Construction Costs which are scheduled to be paid in a particular Month
in accordance with the Original Construction Plan are not or cannot be paid in such Month,
such items may be paid by the Borrower in the immediately succeeding Month (but not beyond,
except to the extent that such delay is the direct consequence of a Snow Event) and shall
be treated for the purposes of the Original Construction Plan as if they were items of cost
which were scheduled for the immediately succeeding Month.




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	 	(f)	 	If (as shown by the Monthly Expenditure Statement or otherwise) the amount withdrawn
from the Proceeds Account for payment to Approved Contractors in the relevant Month (the
“Bank’s Share") is greater than 50 per cent of the aggregate amount actually paid by the
Borrower to such Approved Contractors, the amount to be withdrawn from the Proceeds Account
in the immediately succeeding Month (for payment to Approved Contractors) shall be reduced,
or, as the case may be, the amount paid by the Borrower from its own resources (the
“Borrower’s Share") shall be increased such that, immediately after such succeeding
withdrawal, the Bank’s Share represents not more than 50 per cent of the monies expended by
the Borrower in Construction Costs after the Co-Funding Commencement Date until the end of
the relevant Month.






	21.4	 	Production
	 
	 	 	The Borrower will ensure that all Product is promptly delivered to each Offtaker in
compliance with the relevant Offtake Contract.
	 
	21.5	 	Bank inspection






	 	(a)	 	The Borrower shall:






	 	(i)	 	permit the engineering representatives of the Facility Agent, upon giving
reasonable notice to the Borrower, to make an inspection of the Project on or
around the Final Completion Date at least once annually thereafter and shall
facilitate the ability of such representatives to assess comprehensively the
operation of the Project; and
	 
	 	(ii)	 	comply with all due expedition with any
recommendations made by such representatives, acting reasonably, as to the conduct
of the Project.






	 	(b)	 	The Borrower shall pay all reasonable costs of the Facility Agent and its engineering
representatives in carrying out an inspection of the Project on or around the Final
Completion Date. All other inspection costs shall be paid by the Finance Parties.






	21.6	 	Performance of Offtake Contracts and other Transaction Documents






	 	(a)	 	The Borrower shall:






	 	(i)	 	duly perform and observe in all material respects, all its obligations under
any Transaction Document to which it is a party;
	 
	 	(ii)	 	not novate, assign or
transfer any of its rights or obligations under or in connection with any
Transaction Document to which it is a party other than to the Security Agent under
the relevant Security Document;
	 
	 	(iii)	 	not do (or omit to do) anything which could
reasonably be expected to have a Material Adverse Effect on the performance by any
counterparty of any of its obligations under each Transaction Document to which it
is a party;
	 
	 	(iv)	 	not exercise or rely upon any right of set-off, counterclaim or
analogous right so as to reduce any amount payable to it under any Transaction
Document to which it is a party;




61









 












	 	(b)	 	The Borrower shall exercise all its rights, powers and discretions under each
Transaction Document to which it is a party, except as to matters which do not materially
affect the interests of the Finance Parties, in accordance with the instructions of the
Facility Agent.
	 
	 	(c)	 	The Borrower shall ensure (to the best of its ability and control) that it pursues all
claims which may arise under any Transaction Document appropriately.
	 
	 	(d)	 	Notwithstanding any term of any Offtake Contract to the contrary, the Borrower shall
not suspend production of Products at any time, except on a short term temporary basis in
the ordinary course of trading where such temporary suspension of production would not in
any way whatsoever result in the Borrower being unable fully and punctually to perform its
obligations under any Finance Document or Transaction Document to which it is a party.
	 
	 	(e)	 	The Borrower shall not accept payment under any Offtake Contract in Gold or otherwise
than in cash without the prior written consent of the Facility Agent.
	 
	 	(f)	 	The Borrower shall not enter into any Offtake Contracts with credit terms of more than
120 days.
	 
	 	(g)	 	The Borrower shall not enter into any Offtake Contract without prior approval of the
Facility Agent as to the terms thereof, provided that the Facility Agent’s approval shall
be limited to matters affecting the rights (including security rights) of the Finance
Parties under the Finance Documents or otherwise as might have a Material Adverse Effect,
such consent not to be unreasonably withheld or delayed.






	21.7	 	Amendment of and exercise of rights under the Transaction Documents and Amendment of Life of
Mine Plan
	 
	 	 	The Borrower shall not:






	 	(a)	 	amend, supplement, vary, waive, modify or concur in the amendment, supplement,
variation, waiver or modification of any material provision of any Transaction Document to
which it is a party;
	 
	 	(b)	 	cancel, terminate, rescind, suspend, surrender or exercise any
right to cancel, terminate, rescind, suspend or surrender any Transaction Document to which
it is a party or any provision of any Transaction Document to which it is a party;
	 
	 	(c)	 	release any counterparty from any material obligation under any Transaction Document to
which it is a party;
	 
	 	(d)	 	waive any breach by any counterparty to a material provision of
any Transaction Document to which it is a party or consent to any act or omission which
would otherwise constitute such a breach; or
	 
	 	(e)	 	amend the Life of Mine Plan then in effect,






	 	 	except with the prior consent of the Facility Agent (such consent not to be
unreasonably withheld or delayed).




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	21.8	 	Protection of Mineral Rights






	 	(a)	 	The Borrower will:






	 	(i)	 	duly and punctually observe and comply with all work, expenditure and other
obligations (or obtain exemptions therefrom) required under or otherwise applicable
to the Mineral Rights;
	 
	 	(ii)	 	duly and punctually observe and comply with all
conditions of the Mineral Rights and all provisions of the Mining Laws required to
prevent the Mineral Rights being liable to forfeiture;
	 
	 	(iii)	 	save as otherwise
permitted in this Agreement from time to time, do whatever may be necessary for
procuring the renewal or extension of the Mineral Rights according to applicable
Laws prior to the date on which the Mineral Rights lapse or expire; and
	 
	 	(iv)	 	not
surrender or make any application for the surrender of any Mineral Right.






	21.9	 	All Plans and reports
	 
	 	 	All plans and reports which constitute any part of the Information Package shall be
produced and delivered to the Facility Agent in the form and with the level of content
which has been agreed between the Borrower and the Facility Agent prior to the Conditions
Precedent Satisfaction Date.
	 
	22.	 	GENERAL UNDERTAKING
	 
	 	 	The undertakings in this clause 22 (General undertaking) shall remain in force from the
date of this Agreement for so long as any amount is outstanding under the Finance Documents
or any Commitment is in force.
	 
	22.1	 	Authorisations
	 
	 	 	The Borrower shall promptly:






	 	(a)	 	obtain, comply with and do all that is necessary to maintain in full force and effect;
and
	 
	 	(b)	 	if so requested from time to time, supply certified copies to the Facility Agent
of,






	 	 	any Authorisation required under any applicable Law or regulation to enable it to
perform its obligations under any Finance Document and to ensure (subject to the Legal
Reservations) the legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of any Finance Document.
	 
	22.2	 	Compliance with Laws
	 
	 	 	The Borrower shall comply in all respects with all Laws and regulations to which it may be
subject, except to the extent that failure to so comply would not or would not be
reasonably likely to have a Material Adverse Effect.




63









 












	22.3	 	No Liens






	 	(a)	 	The Borrower shall not create or permit to subsist any Security over any of its
property or assets.
	 
	 	(b)	 	The Borrower shall not:






	 	(i)	 	sell, transfer or otherwise dispose of any of its property or assets on terms
whereby they are or may be leased to or re-acquired by the Borrower;
	 
	 	(ii)	 	sell,
transfer or otherwise dispose of any of its property or assets on recourse terms;
	 
	 	(iii)	 	enter into any arrangement under which any of its property or assets may be
applied, set-off or made subject to a combination of accounts; or
	 
	 	(iv)	 	enter into
any other preferential arrangement having a similar effect in respect of any of its
property or assets,







	 	 	 	in circumstances where the arrangement or transaction is
entered into primarily as a method of raising Financial Indebtedness or of
financing the acquisition of an asset.
	 
	 	(c)	 	Paragraphs (a) and (b) above do not apply to Permitted Liens.






	22.4	 	No disposals






	 	(a)	 	The Borrower shall not enter into a single transaction or a series of transactions
(whether related or not and whether voluntary or involuntary) to sell, lease, transfer or
otherwise dispose of any of the Collateral.
	 
	 	(b)	 	Paragraph (a) above does not apply to Permitted Disposals.






	22.5	 	Merger
	 
	 	 	The Borrower shall not enter into any amalgamation, demerger, merger or corporate
reconstruction, except with the prior written consent of the Facility Agent (acting on the
instructions of the Majority Lenders).
	 
	22.6	 	Change of business
	 
	 	 	The Borrower shall ensure that no substantial change is made to the general nature of its
business from that carried on at the date of this Agreement.
	 
	22.7	 	Prompt payment of Taxes
	 
	 	 	The Borrower shall promptly pay all Taxes payable by it other than:






	 	(a)	 	any deferred Taxes as expressly disclosed in writing to the Facility Agent prior to the
date of this Agreement; and
	 
	 	(b)	 	those taxes which are being contested in good faith and in
respect of which adequate reserves have been established and other than in respect of an
aggregate amount of unpaid Taxes due and payable by the Borrower at any time of no more
than US$100,000.




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	22.8	 	Corporate Existence
	 
	 	 	The Borrower shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, right and franchises.
	 
	22.9	 	Corporate matters






	 	(a)	 	The Borrower shall keep proper books of record and account and maintain proper
accounting, management information and control systems in accordance with US
GAAP for the time being in force in the relevant jurisdiction applicable to it from
time to time.
	 
	 	(b)	 	The Borrower shall not change its Fiscal Year end from 31 December or its auditors
(other than as required by applicable Law) without the prior written consent of the
Facility Agent (acting on the instructions of the Majority Lenders).
	 
	 	(c)	 	The Borrower shall not change the structure or nature of its share capital, save for an
increased authorised share capital, where to do so would result in, or could be reasonably
be expected to result in, a breach of any provision of clause 20.1 (Financial covenants),
other than with the prior written consent of the Facility Agent (acting on the instructions
of the Majority Lenders).
	 
	 	(d)	 	The Borrower shall not make any material changes to its constitutional documents
without the prior written consent of the Facility Agent.






	22.10	 	Use of proceeds
	 
	 	 	The Borrower shall ensure that:






	 	(a)	 	all the proceeds of the Loan advanced under this Agreement are used strictly in
accordance with the purpose set out in clause 3.1 (Purpose and Use of Proceeds);
	 
	 	(b)	 	no
proceeds of the Loan will be used for, or could be construed as being used for, the
financing of trade in military equipment or weapons or in the illegal traffic of drugs or
other prohibited substances; and
	 
	 	(c)	 	no proceeds of the Loan will be used in the financing,
either directly or indirectly, of any party or country subject to sanctions imposed by the
United Nations, the United States of America or the European Union or by any other
international body or are otherwise made illegal by the Laws of any jurisdiction in which
the Borrower or a Lender is organised.






	22.11	 	Restricted payments






	 	(a)	 	Subject to sub-paragraph (b) below, The Borrower shall not:






	 	(i)	 	pay, repay or prepay any principal, interest or other amount on or in respect
of, or redeem, purchase or cancel any Financial Indebtedness owed actually or
contingently, to any if its shareholder or to any Affiliate of any of its
shareholders;
	 
	 	(ii)	 	accept payment, repayment or prepayment of any principal,
interest or other amount on or in respect of, or allow the redemption, purchase or
cancellation of any Financial Indebtedness owed actually or contingently, to it;




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	 	(iii)	 	declare, pay or make any dividend or other payment or distribution of any
kind on or in respect of any class of its shares without the prior written consent
of the Facility Agent (acting on the instructions of the Majority Lenders);
	 
	 	(iv)	 	reduce, return, purchase, repay, cancel or redeem any of its share capital; or
	 
	 	(v)	 	pay for any expenditures or other costs not contemplated in the Life of Mine Plan.






	 	(b)	 	Sub-clause (a) shall not apply (and accordingly any such payments will constitute a
Permitted Disposal) after Final Completion provided that in the opinion of the Facility
Agent (in its discretion, but acting reasonably) no Default has occurred and is continuing
or would occur as a result of such declaration or payment, if such Default would or would
be reasonably likely to have a Material Adverse Effect.






	22.12	 	No borrowings
	 
	 	 	The Borrower shall not directly or indirectly create, incur, assume or otherwise become or
remain directly or indirectly liable with respect to any Financial Indebtedness except
Permitted Financial Indebtedness.
	 
	22.13	 	Subsidiaries
	 
	 	 	The Borrower shall not create or hold any new Subsidiaries, without the prior consent of
the Facility Agent (acting on the instructions of the Majority Lenders).
	 
	22.14	 	Arm’s length transactions






	 	(a)	 	The Borrower shall not enter into any agreement or arrangement with any person other
than on terms that are no less favourable to it than a transaction entered into on an arm’s
length basis.
	 
	 	(b)	 	Sub-clause (a) above shall not apply to any Financial Indebtedness to the extent that
the same:






	 	(i) 	 	constitutes Permitted Financial Indebtedness; and

	 
	 	(ii) 	 	is on terms which are
equal to or more favourable to it than a transaction entered into on an arm’s length basis.






	22.15	 	Environmental undertakings
	 
	 	 	The Borrower shall:






	 	(a)	 	comply with all Environmental Laws to which it may be subject;
	 
	 	(b)	 	obtain all Applicable Permits required in connection with its business; and
	 
	 	(c)	 	comply with the terms of all those Applicable Permits,






	 	 	in each case where failure
to do so would result in a Material Adverse Effect.




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	22.16	 	Environmental claims
	 
	 	 	The Borrower shall promptly notify the Facility Agent of any Environmental Claim, which
could result in a Material Adverse Effect. In such case, the Borrower shall submit to the
Facility Agent in writing a plan to respond to and address such Environmental Claim as soon
as practicable. The Facility Agent may consult with the Independent Engineer in its review
of such plan.
	 
	22.17	 	ERISA
	 
	 	 	The Borrower shall not establish, maintain, contribute to or become obligated to contribute
to any Benefit Plan.
	 
	23.	 	ACCOUNTS AND PAYMENT WATERFALL
	 
	23.1	 	Debt Service Reserve Account






	 	(a)	 	The Borrower shall open and maintain the Debt Service Reserve Account with the Facility
Agent.
	 
	 	(b)	 	Cash balances in the Debt Service Reserve Account shall bear interest at the rate and
in the manner agreed between the Facility Agent and the Borrower.
	 
	 	(c)	 	The credit balance of the Debt Service Reserve Account must at all times be at least
equal to the aggregate of the applicable Minimum Balance.
	 
	 	(d)	 	An amount equal to the Minimum Balance will not be disbursed to the Borrower and will
instead be withheld by the Facility Agent from the Utilisation of the Facility and credited
by the Facility Agent to the Debt Service Reserve Account.
	 
	 	(e)	 	The Borrower must ensure that sufficient funds are provided to the Facility Agent for
onward credit to the Debt Service Reserve Account such that as of any determination date,
the credit balance of the Debt Service Reserve Account is equal to the aggregate of the
Minimum Balance that shall be applicable as at such date.
	 
	 	(f)	 	The Borrower hereby authorises the Facility Agent (if there is any default in payment
by the Borrower under this Agreement) to debit amounts standing to the credit of the Debt
Service Reserve Account in respect of the Monthly Debt Service, interest accrued and
outstanding and all other amounts owed by the Borrower to the Finance Parties under this
Agreement.
	 
	 	(g)	 	If at any time pursuant to a debit of the Debt Service Reserve Account in accordance
with paragraph (f) above the credit balance of the Debt Service Reserve Account is less
than the applicable Minimum Balance, the Borrower shall ensure that no later than the date
falling five calendar days after any such debit of the Debt Service Reserve Account,
sufficient funds are provided by the Borrower to the Facility Agent for deposit to the Debt
Service Reserve Account so as to ensure that the credit balance of the Debt Service Reserve
Account is equal to or greater than the applicable Minimum Balance. If as at the date
falling five calendar days after any debit of the Debt Service Reserve Account pursuant to
paragraph (b) above, the credit balance of the Debt Service Reserve Account is less than
the applicable Minimum Balance, this shall constitute an immediate Event of Default
pursuant to clause 23.2(d).




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	 	(h)	 	Subject to no Event of Default having occurred and being continuing, at such time, any
amount standing to the credit of the Debt Service Reserve Account which is in excess of the
Minimum Balance shall be paid by the Facility Agent to such account as the Borrower may
direct for application as the Borrower sees fit.






	23.2	 	Proceeds Account — Collections and Payment Waterfall






	 	(a)	 	The Borrower shall open and maintain the Proceeds Account with the Facility Agent. Cash
balances in the Proceeds Account shall bear interest at the rate and in the manner agreed
between the Facility Agent and the Borrower.
	 
	 	(b)	 	Unless otherwise directed by the Facility Agent, all payments for Product delivered
under each Offtake Contract shall be made by the relevant Offtakers in each case making
payment in US Dollars directly to the Proceeds Account (or such other account as the
Facility Agent may direct).
	 
	 	(c)	 	With the consent of the Facility Agent (on behalf of the Majority Lenders) the Borrower
may establish US-domiciled bank accounts for the collection of Product Proceeds, but only
on the basis that the Security Agent is granted full security rights over, and the right to
control withdrawals from, any such account(s) for the purpose of remitting Product Proceeds
to the Proceeds Account.
	 
	 	(d)	 	Subject to the rights, powers and remedies of the Finance Parties under the Finance
Documents and so long as no Event of Default or Default has occurred and is continuing, the
Borrower may make withdrawals or transfers from the Proceeds Account for the following
purposes only and in the following order of priority:






	 	(i)	 	first, in payment of operating
costs of the Project consistent with the Life of Mine Plan;
	 
	 	(ii)	 	second, in payment of
Construction Costs consistent with the Original Construction Plan and (subject to any
deviations as permitted under clause 21.3) the Capex
Budget;
	 
	 	(iii)	 	third, in payment of:






	 	(A)	 	government royalties; and
	 
	 	(B)	 	Taxes in relation to the Project;






	 	(iv)	 	fourth, any payments required to be made to the Hedge Provider under the
Hedging Arrangements;
	 
	 	(v)	 	fifth, in or towards payment of any interest and fees
then due and payable to the Finance Parties under or pursuant to the Facility;
	 
	 	(vi)	 	
sixth, in or towards payment of any principal then due and payable to the Finance
Parties under or pursuant to the Facility;
	 
	 	(vii)	 	seventh, for transfer to the Debt
Service Reserve Account in such amount as may be required to maintain the balance
in the Debt Service Reserve Account at the Minimum Balance;




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	 	(viii)	 	eighth, at the request of the Borrower in voluntary prepayment of the Secured
Liabilities; and
	 
	 	(ix)	 	ninth, any balance may be used by the Borrower for any lawful purpose in its
discretion.






	23.3	 	Loan Account — Payments and withdrawals






	 	(a)	 	The Borrower shall open and maintain the Loan Account with the Facility Agent. Cash
balances in the Loan Account shall earn interest at the rate and in the manner agreed
between the Facility Agent and the Borrower.
	 
	 	(b)	 	All Utilisations shall be credited to the Loan Account on the relevant Utilisation
Date.
	 
	 	(c)	 	Subject to the rights, powers and remedies of the Finance Parties under the
Finance Documents and so long as no Event of Default or Default has occurred and is
continuing, the Borrower may make withdrawals from the Loan Account in such amounts as
required by the Borrower to pay Construction Costs which:






	 	(i)	 	are consistent with the
Original Construction Plan and (subject to any deviations as permitted under clause 21.3)
the Capex Budget; and
	 
	 	(ii)	 	do not exceed the amount permitted to be paid from Loan Proceeds
in any Month pursuant to clause 23.4 (Co-funding of Construction Costs).






	23.4	 	Co-funding of Construction Costs






	 	(a)	 	Until the Co-Funding Commencement Date, all Construction Costs shall be paid from
Borrower Funds.
	 
	 	(b)	 	After the Co-Funding Commencement Date and until the Available Commitment has been
reduced to nil or, if earlier, the Final Completion Date (the “Co-funding Period"):






	 	(i)	 	50%
of Construction Costs (or as such amount may be varied by any True-Up Calculation) in such
month shall be made from Borrower Funds;
	 
	 	(ii)	 	50% of Construction Costs (or as such amount
may be varied by any True-Up Calculation) in such Month shall be made from Loan Proceeds;






	 	(c)	 	When the Available Facility is reduced to nil, all subsequent Construction Costs shall
be paid out of Borrower Funds until Final Completion.






	23.5	 	Accounts — General






	 	(a)	 	Without prejudice to the Facility Agent’s general rights of set-off over any credit
balance which may be held in the Debt Service Reserve Account from time to time, the
Facility Agent may at any time and from time to time withdraw any amount standing to the
credit of the Debt Service Reserve Account or Proceeds Account in settlement of any of the
Secured Liabilities then due and payable or to apply it in any manner provided by the
Finance Documents.
	 
	 	(b)	 	If any account terms and conditions applying to the Debt Service Reserve Account and
the Proceeds Account are inconsistent with the terms of any Finance Document,




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	 	 	 	the terms of the relevant Finance Document shall prevail to the extent of the
inconsistency.
	 
	 	(c)	 	Nothing contained in any Finance Document shall oblige any withdrawal to be made from
the Debt Service Reserve Account or the Proceeds Account which would result in it going
into overdraft.
	 
	 	(d)	 	In relation to all aspects of the Debt Service Reserve Account and the Proceeds
Account, the Facility Agent shall act in accordance with the terms of the Finance
Documents. The Borrower shall not be entitled to give any instructions to the Facility
Agent in relation to any aspect of the Debt Service Reserve Account or make any withdrawals
or transfers, save as contemplated in paragraph 23.1(h) above.
	 
	 	(e)	 	To the extent that there is any inconsistency between the terms of this Agreement and
those of the Debt Service Reserve Account Charge or any Proceeds Account Charge, the terms
of the Debt Service Reserve Account Charge or any Proceeds Account Charge shall take
precedence to the extent of the inconsistency.






	23.6	 	Separateness
	 
	 	 	The Borrower will (in each case, to the extent within its control) maintain its separate
existence and identity and will take all steps necessary to make it apparent to third
parties that the Borrower is an entity with assets and liabilities distinct from those of
Guarantor or any Affiliate of any thereof. In addition to the foregoing, such steps and
indicia of the Borrower’s separate identity include the following:






	 	(a)	 	the Borrower will
maintain its own stationery and other business forms separate from those of any other
Person (including Guarantor), and will conduct business in its own name except that certain
of the Persons may act on behalf of the Borrower as an agent;
	 
	 	(b)	 	the Borrower will
maintain separate office space of its own as part of its operations.
The corporate records, the other books and records, and the other assets of
the Borrower will be segregated from the property of Guarantor;
	 
	 	(c)	 	each of the UCC
financing statements filed and real estate recordings made in connection with the
transactions described in the Finance Documents and Transaction Documents will show
that the property that is the subject thereof belongs to the Borrower and not show
that any of it is the property of the Guarantor;
	 
	 	(d)	 	either (x) the Borrower will
pay its own operating expenses and liabilities from its own funds or (y) to the
extent that the Guarantor pays on behalf of the Borrower any of the Borrower’s
operating expenses or liabilities, the Guarantor will account for such payment by
recording the amount paid on behalf of the Borrower as an inter-company advance to
the Borrower and the Borrower will record it as an inter-company payable to the
Guarantor;
	 
	 	(e)	 	each of the Borrower and Guarantor or any Affiliate of any thereof
will maintain its assets and liabilities in such a manner that it is not costly or
difficult to segregate, ascertain or otherwise identify the Borrower’s individual
assets and liabilities from those of Guarantor or any Affiliate thereof or from
those of any other person or entity.
Except as set forth below, the Borrower will maintain its own books of account and
corporate records separate from Guarantor or any Affiliate thereof. Monetary
transactions, including those between the Borrower, on the one hand, and the




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	 	 	 	Guarantor and its Affiliates, on the other hand, will be properly reflected in their
respective financial records. The Borrower will not commingle or pool its funds or other
assets or liabilities with those of Guarantor or any Affiliate thereof except (x) as part
of the
Guarantor’s cash management system under which receipts and disbursements for it and
its subsidiaries are deposited to and made from common accounts and contemporaneously
therewith appropriate entries are made crediting receipts and charging disbursements to the
inter-company accounts of the appropriate entities (the “Consolidated Cash Management
System") and (y) with respect to, if applicable, any such party’s retention in their
capacity as agent, trustee or custodian for the Borrower, of the books and records
pertaining to the Project and the Site. However, any such agent, trustee or custodian will
not generally make the books and records relating to the Project and the Site available to
any creditors or other interested persons of Guarantor or any Affiliate of any thereof.
Except as described above in connection with the Consolidated Cash Management System, the
Borrower does not maintain joint bank accounts or other depository accounts to which
Guarantor or any Affiliate thereof has independent access;
	 
	 	(f)	 	the Borrower will strictly
observe corporate formalities, and the Guarantor and each Affiliate thereof will strictly
observe corporate formalities with respect to its dealings with the Borrower.
Specifically, no transfer of assets between the Guarantor or any Affiliate thereof, on the
one hand, and the Borrower, on the other, will be made without being recorded as an
inter-company advance or liability, as appropriate, or otherwise following appropriate
corporate formalities;
	 
	 	(g)	 	save pursuant to the terms of this Agreement, the Facility
Guarantee, the Project Cost Guarantee and the Guarantor Pledge Agreement, the Guarantor
will not be, or will not hold itself out to be, responsible for the debts of the Borrower;
	 
	 	(h)	 	all distributions made by the Borrower to the Guarantor as its sole member (if
permitted by the terms of this Agreement) shall be in accordance with its governing
documents and with applicable Laws;
	 
	 	(i)	 	any other transactions between the Borrower and
Guarantor or any Affiliate thereof not described in this clause 23.6 that are permitted by
(although not expressly provided for in) the Finance Documents will be fair and equitable
to each of the parties, will be the type of transaction that would be entered into by a
prudent person or entity, and have been and will be on terms that are at least as
favourable as may be obtained from a third-party Person, it being understood that the
foregoing does not apply to the Borrower’s participation in either the Consolidated Cash
Management System, any joint insurance policies covering both the Guarantor and the
Borrower and other Affiliates thereof or any arm’s length transaction permitted by the
terms of clause 22.14 (Arm’s length transactions);
	 
	 	(j)	 	whenever the Borrower is named,
directly or indirectly, as a direct or contingent beneficiary or loss payee on any
jointly-maintained insurance policy covering both its assets and the assets of the
Guarantor the Borrower will cause the proceeds of any claims payment under any such policy
to be paid to it, and it will not retain any claims payment under any such policy to the
extent that it does not relate to the property of the Borrower; and
	 
	 	(k)	 	the Borrower will
be held out to the public as a separate entity apart from Guarantor or any Affiliate
thereof.




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	24.	 	EVENTS OF DEFAULT
	 
	 	 	Each of the events or circumstances set out in clause 24 (Events of Default) (save for
clause
24.26 (Acceleration)) is an Event of Default.
	 
	24.1	 	Non-payment
	 
	 	 	An Obligor does not pay on the due date any amount payable pursuant to a Finance Document
at the place and in the currency in which it is expressed to be payable unless:






	 	(a)	 	its failure to pay is caused by:






	 	(i)	 	administrative or technical error; or
	 
	 	(ii)	 	a Disruption Event; and






	 	(b)	 	payment is made within three Business Days of its due date.






	24.2	 	Specific covenants






	 	(a)	 	Any requirement of clause 20 (Financial covenants) is not satisfied; or
	 
	 	(b)	 	the credit balance of the Debt Service Reserve Account is less than the aggregate of
the Minimum Balance for a period of five consecutive days.






	24.3	 	Other obligations






	 	(a)	 	An Obligor does not comply with any provision of any Finance Document to which it is a
party, other than those referred to in:






	 	(i)	 	clause 24.1 (Non-payment);
	 
	 	(ii)	 	clause 24.2
(Specific covenants); and
	 
	 	(iii)	 	clause 10.1(b) of the Facility Guarantee (but without
prejudice to the Borrower’s obligations under clause 7.2(b) of this Agreement).






	 	(b)	 	No Event of Default under paragraph (a) above will occur if the failure to comply is
capable of remedy and is remedied within 15 Business Days of the Facility Agent giving
notice to the Borrower or, if earlier, the Borrower becoming aware of the failure to
comply, save that this paragraph (b) shall not apply to:






	 	(i)	 	an Event of Default under
clauses 24.6 (Insolvency) to 24.8 (Creditors’ process); or
	 
	 	(ii)	 	a breach of clause 22.10
(Use of proceeds).






	 	(c)	 	The Borrower fails to satisfy the conditions subsequent set out in schedule 7
(Conditions Subsequent) within the prescribed period of time.






	24.4	 	Misrepresentation






	 	(a)	 	Any representation or statement made or deemed to be made by an Obligor in the Finance
Documents or any other document delivered by or on behalf of any Obligor






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	 	 	 	under or in connection with any Finance Document is or proves to have been
incorrect or misleading in any material respect when made or deemed to be made.
	 
	 	(b)	 	No Event of Default under paragraph (a) above will occur if the
misrepresentation or misstatement is capable of remedy and is remedied within 15
Business Days of the Facility Agent giving notice to the Borrower or, if earlier, the
Borrower becoming aware of the failure to comply.






	24.5	 	Cross default






	 	(a)	 	Any Financial Indebtedness of any Obligor is not paid when due nor within any
originally applicable grace period.
	 
	 	(b)	 	Any Financial Indebtedness of any Obligor is declared to be or otherwise
becomes due and payable prior to its specified maturity as a result of an event of
default (however described).
	 
	 	(c)	 	Any commitment for any Financial Indebtedness of any Obligor is cancelled or
suspended by a creditor of any Obligor as a result of an event of default (however
described).
	 
	 	(d)	 	Any creditor of any Obligor becomes entitled to declare any Financial
Indebtedness of any Obligor due and payable prior to its specified maturity as a
result of an event of default (however described).
	 
	 	(e)	 	No Event of Default will occur under this clause 24.5 (Cross default) if the
aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness of
the Borrower, falling within paragraphs (a) to (d) above, is less than US$1,000,000
(or its equivalent in any other currency or currencies).
	 
	 	(f)	 	No Event of Default will occur under this clause 24.5 (Cross default) if the
aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness,
of the Guarantor, falling within paragraphs (a) to (d) above is less than
US$25,000,000 (or its equivalent in any other currency or currencies).






	24.6	 	Insolvency






	 	(a)	 	An Obligor is unable or admits inability to pay its debts as they fall due,
suspends making payments on any of its debts or, by reason of actual or anticipated
financial difficulties, commences negotiations with one or more of its creditors with
a view to rescheduling any of its indebtedness.
	 
	 	(b)	 	The value of the assets of any Obligor is less than its liabilities (taking
into account contingent and prospective liabilities as recognised in accordance with
US GAAP).
	 
	 	(c)	 	A moratorium is declared in respect of any indebtedness of any Obligor.






	24.7	 	Insolvency proceedings
	 
	 	 	Any corporate action, legal proceedings or other procedure or step is taken in relation to:






	 	(a)	 	the suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary arrangement, scheme
of arrangement or otherwise) of any Obligor;




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	 	(b)	 	a composition, compromise, assignment or arrangement with any creditor of any
Obligor;
	 
	 	(c)	 	the appointment of a liquidator, receiver, administrative receiver,
administrator, compulsory manager or other similar officer in respect of any Obligor
or any of its assets; or
	 
	 	(d)	 	enforcement of any Security over any assets of any Obligor,






	 	 	or any analogous procedure or step is taken in any jurisdiction, where such
corporate action, legal proceedings or other procedure or step is not dismissed,
stayed, discharged, struck out, withdrawn or otherwise cancelled within 15 Business
Days of being commenced.
	 
	24.8	 	Creditors’ process
	 
	 	 	Any expropriation, attachment, sequestration, distress or execution affects any asset or
assets of the Borrower and is not discharged within 10 Business Days.
	 
	24.9	 	Unlawfulness






	 	(a)	 	It is or becomes unlawful for an Obligor to perform any of its obligations
under any Finance Document.
	 
	 	(b)	 	Any obligation of any Obligor under any Finance Document is not, or ceases to
be, legal, valid and binding.






	24.10	 	Repudiation
	 
	 	 	An Obligor repudiates a Finance Document (or any of its obligations under a Finance
Document) or evidences an intention to repudiate a Finance Document (or any such
obligation).
	 
	24.11	 	Material Adverse Effect






	 	(a)	 	A Material Adverse Effect occurs.
	 
	 	(b)	 	No Event of Default under paragraph (a) above will occur if the Material Adverse Effect
is capable of remedy and is remedied within 15 Business Days of the Facility Agent giving
notice to the Borrower or, if earlier, any Borrower becoming aware of the Material Adverse
Effect.






	24.12	 	Failure to achieve Final Completion Date
	 
	 	 	The Final Completion Date does not occur on or before the Final Completion Default Date.
	 
	24.13	 	Expropriation
	 
	 	 	At any time after the date of this Agreement, by or under the authority of any Governmental
Authority:






	 	(a)	 	the management board, board of directors or the general director of the
Borrower is wholly or partially displaced or the authority of the Borrower in the conduct
of a material portion of its business is curtailed;




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	 	(b)	 	any of the revenues of the Borrower are, nationalised, expropriated or compulsorily
acquired;
	 
	 	(c)	 	any of the material assets of the Borrower are seised, nationalised,
expropriated or compulsorily acquired; or
	 
	 	(d)	 	the Borrower is otherwise deprived or
prevented from exercising ownership or control of its business, assets or rights.






	24.14	 	Loss of or Failure to Obtain Applicable Permits






	 	(a)	 	The Borrower shall fail to obtain any Permit on or before the date that such Permit
becomes an Applicable Permit and such failure would (in the absence of any remedial action)
have a Material Adverse Effect; provided that no Event of Default shall occur for a period
of up to thirty (30) days following any such failure so long as (x) the Borrower is
diligently seeking to remedy such failure, (y) the Borrower continues to operate the
Project as contemplated by the Facility Documents and the Project Documents and (z) at all
times during such 30-day period there has not occurred, nor after consideration of the
nature of the Borrower’s efforts to remedy such failure, would there reasonably be expected
to occur, a Material Adverse Effect.
	 
	 	(b)	 	Any Applicable Permit necessary for operation of the Project by the Borrower shall be
materially modified (other than modifications requested by the Borrower and approved in
writing in advance of such modification by the Facility Agent acting at the direction of
the Required Lenders, which approval shall not be unreasonably withheld), revoked,
cancelled or not renewed by the issuing agency or other Governmental Authority having
jurisdiction and loss of such Permit would reasonably be expected to have a Material
Adverse Effect; provided that no Event of Default shall occur for a period up to 120 days
following any such modification, revocation, cancellation or non-renewal so long as (x) the
Borrower is diligently appealing (or causing to be appealed) such modification, revocation
or cancellation, (y) the Borrower continues to operate the Project as contemplated by the
Finance Documents and the Project Documents and the enforcement of such modification,
revocation or cancellation is effectively stayed during such period of operation, and (z)
at all times during the pendency of such appeal, there has not occurred, nor after
consideration of the nature of the Borrower’s efforts in respect of such appeal, would
there reasonably be expected to occur, a Material Adverse Effect.






	24.15	 	Moratorium
	 
	 	 	A moratorium is established on the payment of interest or repayment of principal on
international debts of borrowers in London, Zurich, Delaware, Idaho or Alaska generally or
a class of such borrower into which any Obligor falls.
	 
	24.16	 	Authorisations
	 
	 	 	Any Authorisation of an Obligor is revoked, suspended or is modified in a manner which, in
the opinion of the Majority Lenders, may have a Material Adverse Effect, or restrictions or
conditions are, or it is threatened that they will be, or proceedings have begun which may
result in such restrictions or conditions being, imposed on any Authorisation so as to
impede that Obligor’s ability to perform its obligations under the Finance Documents to
which it is a party and/or may mean that any Finance Document is not legally valid,
binding, enforceable and admissible in evidence to the courts of London, Zurich, Alaska,
Delaware, or Idaho.




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	24.17	 	Failure to comply with final judgment
	 
	 	 	The Borrower fails to comply with, or pay any sum due by it under:






	 	(a)	 	any final civil
judgment; or
	 
	 	(b)	 	any civil final order,






	 	 	in either case, made or given by any court of
London, Zurich, Delaware, Idaho, or Alaska, in relation to a claim not covered by insurance
and which is greater than or equal to US$1,000,000 (or its equivalent in another currency
or currencies).
	 
	24.18	 	No dividends
	 
	 	 	The Borrower pays, makes or declares any dividend or other distribution in an amount
exceeding its annual net profit (calculated in accordance with US GAAP) for the Fiscal Year
in relation to which the dividend or other distribution is proposed to be made.
	 
	24.19	 	Environmental Laws
	 
	 	 	The Borrower does not comply with any Environmental Laws to which it is subject and such
non-compliance results in a Material Adverse Effect.
	 
	24.20	 	Security
	 
	 	 	Any of the Security Documents, once executed and delivered, shall, except as the result of
the acts or omissions of the Administrative Parties (or other Finance Parties) (except any
such omission in respect of which the Borrower is expressly obligated under the Finance
Documents), in any material respect cease to be in full force and effect as applied to the
Borrower or Guarantor, or fail to provide the Administrative Parties (or other Finance
Parties) the Liens and associated rights and remedies permitted by Law purported to be
created thereby.
	 
	24.21	 	Destruction of the Project
	 
	 	 	All or a material portion of the assets or operations of the Project are destroyed, or
suffer an actual or constructive loss or material damage, and:






	 	(a)	 	thereafter, the
following conditions are not met:






	 	(i)	 	a decision has been made to repair or restore the
Project by the Majority Lenders;
	 
	 	(ii)	 	all Insurance Proceeds and/or Eminent Domain Proceeds
received by the Borrower shall be deposited into the Debt Service Reserve Account; and
	 
	 	(iii)	 	the Borrower certifies, and the Facility Agent determines in its reasonable judgment
that a sufficient amount of funds is or will be available to the Borrower in the Debt
Service Reserve Account to make repairs and restorations (and to make all payments of
Monthly Debt Service which will become due during and following such repair period);or






	 	(b)	 	the Project ceases to operate for a period beyond the later of (i) 60 days after the
receipt of Insurance Proceeds from or (ii) 120 days after the event of loss unless




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	 	 	 	restoration or repair shall have been approved in accordance with, clause 24.21(a)
above.






	24.22	 	Transaction Documents






	 	(a)	 	Any Transaction Document is terminated, suspended or otherwise ceases to be valid and
in full force and effect and a replacement Transaction Document substantially similar in
all respects is not entered within 45 days of the same.
	 
	 	(b)	 	If any of the events or circumstances set out in clauses 24.6 (Insolvency) to 24.8
(Creditors’ process) occurs in relation to any party to a Transaction Document (excepting
the Obligors) including the Offtakers.






	24.23	 	Remedial action
	 
	 	 	The Borrower fails to comply with the terms of any Remedial Plan.
	 
	24.24	 	Environmental claim
	 
	 	 	Any action is taken, proposed or indicated by the federal government of the United States,
the United States federal courts or any other federal authority or body in the United
States, in respect of any Environmental Claim against the Borrower which the Facility Agent
in its discretion (acting reasonably) considers would or may result in a Lien being imposed
on upon all or any part of the Borrower’s assets which has the ability to rank in priority
to any Lien created pursuant to any of the Finance Documents.
	 
	24.25	 	ERISA
	 
	 	 	If the Borrower or any ERISA Affiliate should establish, maintain, contribute to or become
obligated to contribute to any Benefit Plan and (i) a reportable event (as defined in
section 4043(b) of ERISA for which notice has not been waived by the PBGC) shall have
occurred with respect to any Benefit Plan and, within 30 days after the reporting of such
reportable event to the Facility Agent by the Borrower and the furnishing of such
information as the Facility Agent may reasonably request with respect thereto, the Facility
Agent shall have notified the Borrower in writing that (A) the Facility Agent has made a
reasonable determination that, on the basis of such reportable event, there are reasonable
grounds for the termination of such ERISA Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer such Benefit Plan, and
(B) as a result thereof, an Event of Default exists hereunder; or (ii) a trustee shall be
appointed by a United States District Court to administer any Benefit Plan; or (iii) the
PBGC shall institute proceedings to terminate any Benefit Plan; or (iv) a complete or
partial withdrawal by the Borrower or any ERISA Affiliate from any Multiemployer Plan shall
have occurred, or any Multiemployer Plan shall enter reorganisation status, become
insolvent or terminate (or notify the Borrower or ERISA Affiliate of its intent to
terminate) under section 4041A of ERISA and, within thirty (30) days after the reporting of
any such occurrence to the Facility Agent by the Borrower and the furnishing of such
information as the Facility Agent may reasonably request with respect thereto, the Facility
Agent shall have notified the Borrower in writing that the Facility Agent has made a
determination that, on the basis of such occurrence, an Event of Default exists hereunder,
provided that the events described in this clause 24.4 (Misrepresentation) will not result
in an Event of Default unless the subject event involves (x) one or more Benefit Plans that
are single-employer plans (as defined in section 4001(a)(l5) of ERISA) and under which the
aggregate gross amount of unfunded benefit liabilities (as defined in section 400l(a)(16)
of ERISA), including vested unfunded liabilities which arise or would reasonably be
expected to arise as the result of the termination of such Benefit Plans,




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	 	 	exceeds $1,000,000, and/or (y) one or more Multiemployer Plans to which the aggregate
withdrawal liabilities of the Borrower and all ERISA Affiliates exceeds $1,000,000.






	24.26	 	Acceleration
	 
	 	 	On and at any time after the occurrence of an Event of Default which is continuing the
Facility Agent may, and shall, if so directed by the Majority Lenders, by notice to the
Borrower:








	 	(a)	 	cancel the Total Commitments whereupon they shall immediately be cancelled;
	 
	 	(b)	 	declare that all or part of the Loan, together with accrued interest, and all other
amounts accrued or outstanding under the Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable; 
	 
	 	(c)	 	declare that all or part of
the Loan be payable on demand, whereupon they shall immediately become payable on demand by
the Facility Agent on the instructions of the Majority Lenders; and/or
	 
	 	(d)	 	 declare any
Security created pursuant to the Security Documents to be enforceable and take any steps to
preserve or enforce such Security.







	 
	25.	 	CHANGES TO THE LENDERS
	 
	25.1	 	Assignments and transfers by the Lenders
	 
	 	 	Subject to this clause 25 (Changes to the Lenders), a Lender (the “Existing Lender”) may:






	 	(a)	 	assign any of its rights; and/or
	 
	 	(b)	 	transfer by novation any of its rights and
obligations;






	 	 	under any of the Finance Documents to a bank or financial institution or to a
trust, fund or other entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial assets (the “New
Lender”).
	 
	25.2	 	Conditions of assignment or transfer






	 	(a)	 	The consent of the Borrower is required for an assignment or transfer by an Existing
Lender, unless the assignment or transfer is to another Lender or an Affiliate of a Lender.
No such consent shall be required if an Event of Default has occurred and is continuing.
	 
	 	(b)	 	The consent of the Borrower to an assignment or transfer must not be unreasonably
withheld. The Borrower will be deemed to have given its consent five Business Days
after the Existing Lender has requested it unless consent is expressly refused by the
Borrower within that time. Any refusal of consent by the Borrower must be accompanied
by a written explanation for the reasons behind the refusal.
	 
	 	(c)	 	An assignment will only be effective on:






	 	(i)	 	receipt by the Facility Agent of written confirmation from the New Lender (in form
and substance satisfactory to the Facility Agent) that the New




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	 	 	 	Lender will assume the same obligations to the other Finance Parties
as it would have been under if it was an Original Lender; and






	 	(ii)	 	performance by the Facility Agent of all necessary “know your customer” or
other similar checks under all applicable Laws and regulations in relation
to such assignment to a New Lender, the completion of which the Facility
Agent shall promptly notify to the Existing Lender and the New Lender.






	 	(d)	 	A transfer will only be effective if the procedure set out in clause 25.5 (Procedure
for transfer) is complied with.
	 
	 	(e)	 	If:






	 	(i)	 	a Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office; and
	 
	 	(ii)	 	as a result of
circumstances existing at the date the assignment, transfer or change occurs, the
Borrower would be obliged to make a payment to the New Lender or Lender acting
through its new Facility Office under clause 12 (Tax gross-up and indemnities) or
clause 13 (Increased Costs), then the New Lender or Lender acting through its new
Facility Office is only entitled to receive payment under those clauses to the same
extent as the Existing Lender or Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not occurred.






	25.3	 	Assignment or transfer fee
	 
	 	 	The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to
the Facility Agent (for its own account) a fee of US$2,000.
	 
	25.4	 	Limitation of responsibility of Existing Lenders






	 	(a)	 	Unless expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for:
	 
	 	(b)	 	the legality, validity,
effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
	 
	 	(c)	 	the financial condition of any Obligor;
	 
	 	(d)	 	the performance and observance by any
Obligor of its obligations under the Finance Documents or any other documents; or
	 
	 	(e)	 	the
accuracy of any statements (whether written or oral) made in or in connection with any
Finance Document or any other document, and any representations or warranties implied by
Law are excluded.
	 
	 	(f)	 	Each New Lender confirms to the Existing Lender and the other Finance Parties that it:






	 	(i)	 	has made (and shall continue to make) its own independent investigation and assessment
of the financial condition and affairs of each Obligor and its




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	 	 	 	related entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the Existing Lender
in connection with any Finance Document; and






	 	(ii)	 	will continue to make its own
independent appraisal of the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding under the Finance Documents or
any Commitment is in force.






	 	(g)	 	Nothing in any Finance Document obliges an Existing Lender to:






	 	(i)	 	accept a re-transfer from a New Lender of any of the rights and obligations assigned or
transferred under this clause 25 (Changes to the Lenders); or
	 
	 	(ii)	 	support any losses
directly or indirectly incurred by the New Lender by reason of the non-performance by any
Obligor of its obligations under the Finance Documents or otherwise.






	25.5	 	Procedure for transfer






	 	(a)	 	Subject to the conditions set out in clause 25.2 (Conditions of assignment or transfer)
a transfer is effected in accordance with paragraph (c) below when the Facility Agent
counter-signs an otherwise duly completed Transfer Certificate delivered to it by the
Existing Lender and the New Lender. The Facility Agent shall, subject to paragraph (b)
below, as soon as reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement and delivered
in accordance with the terms of this Agreement, execute that Transfer Certificate.
	 
	 	(b)	 	The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to
it by the Existing Lender and the New Lender once it is satisfied it has complied with all
necessary “know your customer” or other similar checks under all applicable Laws and
regulations in relation to the transfer to such New Lender.
	 
	 	(c)	 	On the Transfer Date:






	 	(i)	 	to the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents shall be
cancelled (being the “Discharged Rights and Obligations”);
	 
	 	(ii)	 	the Borrower and the New Lender shall assume obligations towards one another and/or acquire
rights against one another which differ from the Discharged Rights and Obligations only insofar as
the Borrower and the New Lender have assumed and/or acquired the same in place of the Borrower and
the Existing Lender;
	 
	 	(iii)	 	the Administrative Parties, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between themselves as they would have
acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that extent the Administrative Parties
and the Existing




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	 	 	 	Lender shall each be released from further obligations to each other
under the Finance Documents; and






	 	(iv)	 	the New Lender shall become a Party as a “Lender”.






	25.6	 	Copy of Transfer Certificate to Borrower
	 
	 	 	The Facility Agent shall, as soon as reasonably practicable after it has executed a
Transfer Certificate, send to the Borrower a copy of that Transfer Certificate.
	 
	25.7	 	Disclosure of information
	 
	 	 	Any Finance Party may disclose to any Authorised Recipient any relevant information about
any Obligor, the Facility and the Finance Documents as that Lender shall consider
appropriate.
	 
	25.8	 	Information sharing
	 
	 	 	Subject to the entry by the relevant Finance Party into a Confidentiality Undertaking, each
of the Finance Parties may exchange, use, analyse and assess information held about the
Borrower and the Guarantor, including information about the Project, and any other
relationships such Finance Party may have with the Borrower or Guarantor, with any other of
the Finance Parties. The Borrower and Guarantor hereby irrevocably wave their irrespective
rights to have such information kept confidential by the relevant Finance Party under the
applicable Swiss banking regulations and all other laws
	 
	26.	 	CHANGES TO THE OBLIGORS
	 
	26.1	 	Assignment and transfer by Obligors
	 
	 	 	The Borrower may not assign any of its rights or transfer any of its rights or obligations
under the Finance Documents, other than with the prior written consent of the Facility
Agent.
	 
	27.	 	ROLE OF THE ADMINISTRATIVE PARTIES
	 
	27.1	 	Appointment of the Agents






	 	(a)	 	Each Finance Party appoints the Facility Agent to act as its agent under and in
connection with the Finance Documents.
	 
	 	(b)	 	Each Finance Party appoints the Security Agent to act as its agent and trustee under
and in connection with the Finance Documents and the Collateral an in accordance with the
terms of schedule 6 (Security Provisions).
	 
	 	(c)	 	Each of the Finance Parties authorises each Agent to:






	 	(i)	 	exercise the rights, powers, authorities and discretions specifically given to
that Agent under or in connection with the Finance Documents together with any
other incidental rights, powers, authorities and discretions; and
	 
	 	(ii)	 	to execute
each of the Finance Documents (to which that Agent is expressed to be a party) and
all other documents that may be approved by (in the case of the Facility Agent) the
Majority Lenders or (in the case of the Security Agent) the Facility Agent, for
execution by it.




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	27.2	 	Duties of the Agents






	 	(a)	 	The Facility Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Facility Agent for that Party by any other Party.

	 
	 	(b)
	 	Except where a Finance Document specifically provides otherwise, the Facility Agent is not
obliged to review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.
	 
	 	(c)	 	If the Facility Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a Default, it shall
promptly notify the Finance Parties.
	 
	 	(d)	 	If the Facility Agent is aware of the non-payment of any principal, interest or fee
payable to a Finance Party (other than the Administrative Parties) under this Agreement it
shall promptly notify the other Finance Parties.
	 
	 	(e)	 	The Facility Agent shall promptly send the Security Agent such certification as the
Security Agent may require from time to time pursuant to schedule 6 (Security Provisions).
	 
	 	(f)	 	The duties of each Agent under the Finance Documents are solely mechanical and
administrative in nature and no Agent is obliged to exercise any discretion, whether in
relation to the exercise of a power or otherwise, under the Finance Document, without first
receiving the instructions of, in the case of the Facility Agent, the Majority Lenders or,
in the case of the Security Agent, the Facility Agent. No Agent shall have any other
duties save as expressly provided for in the Finance Documents.






	27.3	 	Role of the Arranger
	 
	 	 	Except as specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance Document.
	 
	27.4	 	No fiduciary duties






	 	(a)	 	Nothing in this Agreement constitutes any Administrative Party (save for the Security
Agent in relation to the Charged Property and as expressly provided in schedule 6 (Security
Provisions) and the Security Documents) as a trustee or fiduciary of any other person.
	 
	 	(b)	 	No Administrative Party shall be bound to account to any Finance Party for any sum or
the profit element of any sum received by it for its own account.






	27.5	 	Business with the Borrower
	 
	 	 	The Administrative Parties may accept deposits from, lend money to and generally engage in
any kind of banking or other business with the Borrower.
	 
	27.6	 	Rights and discretions of the Agents






	 	(a)	 	Each Agent may rely on:






	 	(i)	 	any representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and




82









 












	 	(ii)	 	any statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.






	 	(b)	 	Each Agent may assume (unless it has received notice to the contrary in its capacity as
agent for the Lenders) that:






	 	(i)	 	no Default has occurred (unless it has actual knowledge of
a Default arising under clause 24.1 (Non-payment));
	 
	 	(ii)	 	any right, power, authority or
discretion vested in any Party or the Majority Lenders has not been exercised; and
	 
	 	(iii)	 	any notice or request made by the Borrower (other than a Utilisation Request) is made on
behalf of and with the consent and knowledge of all the Obligors.






	 	(c)	 	Each Agent may
engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors
or other experts.
	 
	 	(d)	 	Each Agent may act in relation to the Finance Documents through its personnel and
agents.
	 
	 	(e)	 	Each Agent may disclose to any other Party any information it reasonably believes it
has received as agent under this Agreement.
	 
	 	(f)	 	Each Agent may retain for its own benefit and without liability to account any fee or
other sum received by it for its own account.
	 
	 	(g)	 	Notwithstanding any other provision of any Finance Document to the contrary, no
Administrative Party is obliged to do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any Law or regulation or a breach of a fiduciary
duty or duty of confidentiality.






	27.7	 	Majority Lenders’ instructions






	 	(a)	 	Unless a contrary indication appears in a Finance Document:






	 	(i)	 	the Facility Agent shall:






	 	(A)	 	exercise any right, power, authority or discretion vested in it
as Facility Agent, or otherwise act, in accordance with any instructions
given to it by the Majority Lenders (or, if so instructed by the Majority
Lenders, refrain from exercising any right, power, authority or discretion
vested in it as Facility Agent); and
	 
	 	(B)	 	not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance
with an instruction of the Majority Lenders;






	 	(ii)	 	the Security Agent
shall:






	 	(A)	 	exercise any right, power, authority or discretion vested in it
as Security Agent in accordance with any instructions given to it by the
Facility Agent (or, if so instructed by the Facility Agent, refrain from




83









 






	 	 	 	exercising any right, power, authority or discretion vested
in it as Security Agent); and






	 	(B)	 	not be liable for any act (or omission) if it acts (or refrains from taking any action) in
accordance with such an instruction of the Facility Agent.






	 	(b)	 	Unless a contrary indication appears in a Finance Document, any instructions given by
the Majority Lenders (in the case of the Facility Agent) or the Facility Agent (in the case
of the Security Agent) will be binding on all the Finance Parties.
	 
	 	(c)	 	Each Agent may refrain from acting in accordance with the instructions of the Majority
Lenders (in the case of the Facility Agent) or the Facility Agent (in the case of the
Security Agent) or under sub-clause (d) below until it has received such security as it may
require for any cost, loss or liability (together with any associated Tax) which it may
incur in complying with the instructions.
	 
	 	(d)	 	In the absence of instructions from the Majority Lenders, or if appropriate the Lenders
(in the case of the Facility Agent) or the Facility Agent (in the case of the Security
Agent), each Agent may act (or refrain from taking action) as it considers to be in the
best interest of the Lenders.
	 
	 	(e)	 	No Agent is authorised to act on behalf of a Lender (without first obtaining that
Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document.
	 
	 	(f)	 	If a Lender does not respond (whether positively or negatively) to any request made by
the Facility Agent for any instruction or any approval or any consent under or in
connection with any Finance Document within ten Business Days of the Facility Agent’s
request for instruction, approval or consent then that Lender’s participation in all Loans
or Commitments shall be excluded from the aggregate for the purpose of determining whether
the necessary percentage has been achieved for the definition of Majority Lenders.






	27.8	 	Responsibility for documentation
	 
	 	 	No Administrative Party:






	 	(a)	 	is responsible for the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by any Administrative Party, any Obligor or any other
person given in or in connection with any Finance Document; or
	 
	 	(b)	 	is responsible for the
legality, validity, effectiveness, adequacy or enforceability of any Finance Document or
any other agreement, arrangement or document entered into, made or executed in anticipation
of or in connection with any Finance Document.






	27.9	 	Exclusion of liability






	 	(a)	 	Without limiting paragraph (b) below (and without prejudice to the provisions of clause
30.10(e) (Disruption to Payment Systems etc.)), no Agent will be liable to any Finance
Party (including for negligence or any other category of liability whatsoever) for any
action taken, or omitted to be taken, by it under or in connection with any




84









 






	 	 	 	Finance Document, unless directly caused by its gross negligence or wilful
misconduct.






	 	(b)	 	No Party (other than the relevant Agent) may take any proceedings against any officer,
employee or agent of any Agent in respect of any claim it might have against that Agent or
in respect of any act or omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or agent of that Agent may rely
on this clause subject to clause 1.4 (Third party rights).
	 
	 	(c)	 	No Agent will be liable to any Finance Party for any delay (or any related
consequences) in crediting an account with an amount required under the Finance Documents
to be paid by that Agent if that Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any recognised
clearing or settlement system used by that Agent for that purpose.
	 
	 	(d)	 	Nothing in this
Agreement shall oblige any Administrative Party to carry out any “know your customer” or
other checks in relation to any person on behalf of any Lender and each Lender confirms to
each Administrative Party that it is solely responsible for any such checks it is required
to carry out and that it may not rely on any statement in relation to such checks made by
any Administrative Party.






	27.10	 	Lenders’ Indemnity to the Agents
	 
	 	 	Each Lender shall (in proportion to its share of the Total Commitments or, if the Total
Commitments are then zero, to its share of the Total Commitments immediately prior to their
reduction to zero) indemnify each Agent, within three Business Days of demand, against any
cost, loss or liability (including for negligence or any other category of liability
whatsoever) incurred by that Agent (otherwise than by reason of that Agent’s gross
negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant
to clause 30.10 (Disruption to Payment Systems etc.) notwithstanding that Agent’s
negligence, gross negligence or any other category of liability whatsoever but not
including any claim based on the fraud of that Agent) in acting as Facility Agent or
Security Agent (as the case may be) under the Finance Documents (unless that Agent has been
reimbursed by an Obligor pursuant to a Finance Document).
	 
	27.11	 	Resignation of an Agent






	 	(a)	 	An Agent may resign and appoint one of its Affiliates as successor by giving notice to
the other Finance Parties and the Borrower.
	 
	 	(b)	 	Alternatively an Agent may resign by giving notice to the other Finance Parties and the
Borrower, in which case the Majority Lenders (after consultation with the Borrower) may
appoint a successor Agent (acting through an office as contemplated in paragraph (a)
above).
	 
	 	(c)	 	If the Majority Lenders have not appointed a successor Agent in accordance with
paragraph (b) above within 30 days after notice of resignation was given, the relevant
Agent (after consultation with the Borrower) may appoint a successor Agent (acting through
an office as contemplated in paragraph (a) above).
	 
	 	(d)	 	The retiring Agent shall, at its own cost, make available to the successor Agent such
documents and records and provide such assistance as the successor Agent may reasonably
request for the purposes of performing its functions as the relevant Agent under the
Finance Documents.




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	 	(e)	 	An Agent’s resignation notice shall only take effect upon the appointment of a
successor.
	 
	 	(f)	 	Upon the appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain entitled to the
benefit of this clause 27 (Role of the Administrative Parties). Its successor and each of
the other Parties shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original Party.
	 
	 	(g)	 	After consultation with the Borrower, the Majority Lenders may, by notice to an Agent,
require it to resign in accordance with paragraph (b) above, whereupon such resignation
shall occur automatically 10 Business Days later. In this event, that Agent shall resign
in accordance with paragraph (b) above.
	 
	 	(h)	 	At any time after the appointment of a successor Security Agent, the retiring Security
Agent shall do and execute all acts, deeds and documents reasonably required by its
successor to transfer to it (or its nominee, as it may direct) any Collateral vested in the
retiring Agent pursuant to the Security Documents and which shall not have vested in its
successor by operation of Law. All such acts, deeds and documents shall be done or, as the
case may be, executed at the cost of the retiring Security Agent.






	27.12	 	Confidentiality; common parties






	 	(a)	 	In acting as a representative of the Finance Parties, each Agent shall be regarded as
acting through its agency division which shall be treated as a separate entity from any
other of its divisions or departments.
	 
	 	(b)	 	If information is received by another division or department of the Facility Agent, it
may be treated as confidential to that division or department and the Facility Agent shall
not be deemed to have notice of it.
	 
	 	(c)	 	Notwithstanding that the Facility Agent and/or the Security Agent may from time to time
be the same person, the Facility Agent and the Security Agent have entered into the Finance
Documents (to which they are party) in their separate capacities as Facility Agent for the
Finance Parties and as Security Agent for the Finance Parties provided that, where any
Finance Document provides for the Facility Agent or Security Agent to communicate with or
provide instructions to the other, while the two Agents are the same person, it will not be
necessary for there to be any such formal communication or instructions notwithstanding
that the Finance Documents provide in certain cases for the same to be in writing.






	27.13	 	Relationship with the Lenders
	 
	 	 	The Facility Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received not less than five
Business Days prior notice from that Lender to the contrary in accordance with the terms of
this Agreement.
	 
	27.14	 	Credit appraisal by the Lenders
	 
	 	 	Without affecting the responsibility of any Obligor for information supplied by it or on
its behalf in connection with any Finance Document, each Lender confirms to the
Administrative Parties that it has been, and will continue to be, solely responsible for
making its own




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	 	 	independent appraisal and investigation of all risks arising under or in connection with
any Finance Document including:






	 	(a)	 	the financial condition, status and nature of each
Obligor;
	 
	 	(b)	 	the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document;
	 
	 	(c)	 	whether
that Lender has recourse, and the nature and extent of that recourse, against any Party or
any of its respective assets under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in connection with any
Finance Document; and
	 
	 	(d)	 	the adequacy, accuracy and/or completeness of any information
provided by the Facility Agent, any Party or by any other person under or in connection
with any Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document.






	27.15	 	Reference Banks
	 
	 	 	If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an
Affiliate) ceases to be a Lender, the Facility Agent shall (in consultation with the
Borrower) appoint another Lender or an Affiliate of a Lender to replace that Reference
Bank.
	 
	27.16	 	Deduction from amounts payable by the Agents
	 
	 	 	If any Party owes an amount to an Agent under the Finance Documents that Agent may, after
giving notice to that Party, deduct an amount not exceeding that amount from any payment to
that Party which that Agent would otherwise be obliged to make under the Finance Documents
and apply the amount deducted in or towards satisfaction of the amount owed. For the
purposes of the Finance Documents that Party shall be regarded as having received any
amount so deducted.
	 
	27.17	 	Administrative Parties as Lenders
	 
	 	 	If an Administrative Party is or becomes a Lender, that Administrative Party shall have the
same rights and powers with respect to its Commitment as any other Lender and may exercise
those rights and powers as if it were not also acting as an Administrative Party.
	 
	27.18	 	Security provisions
	 
	 	 	The provision of schedule 6 (Security Provisions) shall bind each party.
	 
	28.	 	CONDUCT OF BUSINESS BY THE FINANCE PARTIES
	 
	 	 	No provision of this Agreement will:






	 	(a)	 	interfere with the right of any Finance Party to arrange its affairs (tax or otherwise)
in whatever manner it thinks fit;




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	 	(b)	 	oblige any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any
claim; or 
	 
	 	(c)	 	oblige any
Finance Party to disclose any information relating to its affairs (tax or otherwise) or any
computations in respect of Tax.






	29.	 	SHARING AMONG THE FINANCE PARTIES
	 
	29.1	 	Payments to the Finance Parties
	 
	 	 	If a Finance Party (a “Recovering Finance Party”) receives or recovers any amount from an
Obligor other than in accordance with clause 30 (Payment mechanics) and applies that amount
to a payment due under the Finance Documents then:






	 	(a)	 	the Recovering Finance Party shall,
within three Business Days, notify details of the receipt or recovery, to the Facility
Agent; 
	 
	 	(b)	 	the Facility Agent shall determine whether the receipt or recovery is in excess
of the amount the Recovering Finance Party would have been paid had the receipt or recovery
been received or made by the Facility Agent and distributed in accordance with clause 30
(Payment mechanics), without taking account of any Tax which would be imposed on the
Facility Agent in relation to the receipt, recovery or distribution;
and 
	 
	 	(c)	 	the Recovering
Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the
Facility Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any
amount which the Facility Agent determines may be retained by the Recovering Finance Party
as its share of any payment to be made, in accordance with clause 30.5 (Partial payments).






	29.2	 	Redistribution of payments
	 
	 	 	The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant
Obligor and distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with clause 30.5 (Partial payments).
	 
	29.3	 	Recovering Finance Party’s rights






	 	(a)	 	On a distribution by the Facility Agent under clause 29.2 (Redistribution of payments),
the Recovering Finance Party will be subrogated to the rights of the Finance Parties which
have shared in the redistribution.
	 
	 	(b)	 	If and to the extent that the Recovering Finance Party is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering
Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.






	29.4	 	Reversal or redistribution
	 
	 	 	If any part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party, then:






	 	(a)	 	each Finance
Party which has received a share of the relevant Sharing Payment pursuant to clause 29.2
(Redistribution of payments) shall, upon request of the




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	 	 	 	Facility Agent, pay to the Facility Agent for account of that Recovering
Finance Party an amount equal to the appropriate part of its share of the Sharing
Payment (together with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay); and






	 	(b)	 	that Recovering Finance
Party’s rights of subrogation in respect of any reimbursement shall be cancelled
and the relevant Obligor will be liable to the reimbursing Finance Party for the
amount so reimbursed.






	29.5	 	Exceptions






	 	(a)	 	This clause 29 (Sharing among the Finance Parties) shall not apply to the extent that
the Recovering Finance Party would not, after making any payment pursuant to this clause,
have a valid and enforceable claim against the relevant Obligor.
	 
	 	(b)	 	A Recovering Finance Party is not obliged to share with any other Finance Party any
amount which the Recovering Finance Party has received or recovered as a result of taking
legal or arbitration proceedings, if:
	 
	 	(c)	 	it notified that other Finance Party of the legal
or arbitration proceedings; and
	 
	 	(d)	 	that other Finance Party had an opportunity to
participate in those legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice and did not take separate legal or
arbitration proceedings.






	30.	 	PAYMENT MECHANICS
	 
	30.1	 	Payments to the Facility Agent






	 	(a)	 	On each date on which an Obligor or a Lender is required to make a payment under a
Finance Document, that Obligor or Lender shall make the same available to the Facility
Agent (unless a contrary indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Facility Agent as being customary at
the time for settlement of transactions in the relevant currency in the place of payment.
	 
	 	(b)	 	Payment shall be made to such account in the principal financial centre of the country
of that currency with such bank as the Facility Agent specifies.






	30.2	 	Distributions by the Agents
	 
	 	 	Each payment received by an Agent under the Finance Documents for another Party shall,
subject to clause 30.3 (Distributions to an Obligor) and clause 30.4 (Clawback) be made
available by that Agent as soon as practicable after receipt to the Party entitled to
receive payment in accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to that Agent by not less
than five Business Days’ notice with a bank in the principal financial centre of the
country of that currency.
	 
	30.3	 	Distributions to an Obligor
	 
	 	 	Each Agent may (with the consent of the Obligor or in accordance with clause 31 (Set-off))
apply any amount received by it for that Obligor in or towards payment (on the date and in




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	 	 	the currency and funds of receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be so applied. Any
amount payable to an Obligor shall be credited by the Agent to that Obligor as soon as
reasonably practicable after receipt by the Agent.






	30.4	 	Clawback






	 	(a)	 	Where a sum is to be paid to an Agent under the Finance Documents for another Party,
that Agent is not obliged to pay that sum to that other Party (or to enter into or perform
any related exchange contract) until it has been able to establish to its satisfaction that
it has actually received that sum.
	 
	 	(b)	 	If an Agent pays an amount to another Party and it proves to be the case that such
Agent had not actually received that amount, then the Party to whom that amount (or the
proceeds of any related exchange contract) was paid by that Agent shall on demand refund
the same to that Agent together with interest on that amount from the date of payment to
the date of receipt by that Agent, calculated by that Agent to reflect its cost of funds.






	30.5	 	Partial payments






	 	(a)	 	If the Facility Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent
shall apply that payment towards the obligations of that Obligor under the Finance
Documents in the following order:






	 	(i)	 	first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Administrative Parties under the Finance Documents;
	 
	 	(ii)	 	secondly, in or towards payment pro rata of any accrued default interest due but unpaid
under this Agreement;
	 
	 	(iii)	 	thirdly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this Agreement;
	 
	 	(iv)	 	fourthly, in or
towards payment pro rata of any principal due but unpaid under this Agreement; and
	 
	 	(v)	 	fifthly, in or towards payment pro rata of any other sum due but unpaid under the Finance
Documents.






	 	(b)	 	The Facility Agent shall, if so directed by the Majority Lenders, vary the order set
out in paragraphs (a)(ii) to (v) above.
	 
	 	(c)	 	Paragraphs (a) and (b) above will override any appropriation made by an Obligor.






	30.6	 	No set-off by Obligors
	 
	 	 	All payments to be made by an Obligor under the Finance Documents shall be calculated and
be made without (and free and clear of any deduction for) set-off or counterclaim.




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	30.7	 	Business Days






	 	(a)	 	Notwithstanding paragraph (b) below, if the Final Repayment Date falls on a day that is
not a Business Day, any payment due on such date shall be made on the preceding Business
Day.
	 
	 	(b)	 	Any payment which is due to be made on a day that is not a Business Day shall be made
on the next Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).
	 
	 	(c)	 	During any extension of the due date for payment of any principal or Unpaid Sum under
this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on
the original due date.






	30.8	 	Currency of account






	 	(a)	 	Subject to paragraphs (b) and (c) below, US Dollars is the currency of account and
payment for any sum due from an Obligor under any Finance Document.
	 
	 	(b)	 	Each payment in respect of costs, expenses or Taxes shall be made in the currency in
which the costs, expenses or Taxes are incurred.
	 
	 	(c)	 	Any amount expressed to be payable in a currency other than US Dollars shall be paid in
that other currency.






	30.9	 	Change of currency






	 	(a)	 	Unless otherwise prohibited by Law, if more than one currency or currency unit are at
the same time recognised by the central bank of any country as the lawful currency of that
country, then:






	 	(i)	 	any reference in the Finance Documents to, and any obligations arising
under the Finance Documents in, the currency of that country shall be translated into, or
paid in, the currency or currency unit of that country designated by the Facility Agent
(after consultation with the Borrower); and
	 
	 	(ii)	 	any translation from one currency or
currency unit to another shall be at the official rate of exchange recognised by the
relevant central bank for the conversion of that currency or currency unit into the other,
rounded up or down by the Facility Agent (acting reasonably).






	 	(b)	 	If a change in any currency of a country occurs, this Agreement will, to the extent the
Facility Agent (acting reasonably and after consultation with the Borrower) specifies to be
necessary, be amended to comply with any generally accepted conventions and market practice
in the Relevant Interbank Market and otherwise to reflect the change in currency.






	30.10	 	Disruption to Payment Systems etc.
	 
	 	 	If either the Facility Agent determines (in its discretion) that a Disruption Event has
occurred or the Facility Agent is notified by the Borrower that a Disruption Event has
occurred:






	 	(a)	 	the Facility Agent may, and shall if requested to do so by the Borrower,
consult with the Borrower with a view to agreeing with the Borrower such changes to the




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	 	 	 	operation or administration of the Facility as the Facility Agent may deem
necessary in the circumstances;






	 	(b)	 	the Facility Agent shall not be obliged to
consult with the Borrower in relation to any changes mentioned in paragraph
(a) above if, in its opinion, it is not practicable to do so in the circumstances
and, in any event, shall have no obligation to agree to such changes;
	 
	 	(c)	 	the
Facility Agent may consult with the Finance Parties in relation to any changes
mentioned in paragraph (a) above but shall not be obliged to do so if, in its
opinion, it is not practicable to do so in the circumstances;
	 
	 	(d)	 	any such changes
agreed upon by the Facility Agent and the Borrower shall (whether or not it is
finally determined that a Disruption Event has occurred) be binding upon the
Parties as an amendment to (or, as the case may be, waiver of) the terms of the
Finance Documents notwithstanding the provisions of clause 36 (Amendments and
waivers);
	 
	 	(e)	 	the Facility Agent shall not be liable for any damages, costs or
losses whatsoever (including for negligence, gross negligence or any other category
of liability whatsoever but not including any claim based on the fraud of the
Facility Agent) arising as a result of its taking, or failing to take, any actions
pursuant to or in connection with this clause 30.10 (Disruption to Payment Systems
etc.); and
	 
	 	(f)	 	the Facility Agent shall notify the Finance Parties of all changes
agreed pursuant to paragraph (d) above.






	31.	 	SET-OFF






	 	(a)	 	A Finance Party may set off any matured obligation due from the Borrower under the
Finance Documents (to the extent beneficially owned by that Finance Party) against any
matured obligation owed by that Finance Party to the Borrower, regardless of the place of
payment, booking branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set-off.
	 
	 	(b)	 	The Security
Agent shall not set-off or apply any proceeds held or recovered by it in connection with
the Accounts or the Security Documents against any indebtedness due by the Borrower to the
Security Agent which is not indebtedness due to the Security Agent under any Finance
Document or due to any Finance Party pursuant to any Secured Liabilities.






	32.	 	NOTICES
	 
	32.1	 	Communications in writing
	 
	 	 	Any communication to be made under or in connection with the Finance Documents shall be
made in writing and, unless otherwise stated, may be made by fax or letter.
	 
	32.2	 	Addresses
	 
	 	 	The address and fax number (and the department or officer, if any, for whose attention the
communication is to be made) of each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents is:




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	 	(a)	 	in the case of the Borrower, that identified with its name on the signature page;
	 
	 	(b)	 	in the case of each Finance Party (other than the Facility Agent), that notified in
writing to the Facility Agent on or prior to the date on which it becomes a Party; and
	 
	 	(c)	 	in the case
of each Agent, that identified with its name on the signature page,






	 	 	or any substitute
address or fax number or department or officer as the Party may notify to the Facility
Agent (or the Facility Agent may notify to the other Parties, if a change is made by the
Facility Agent) by not less than five Business Days’ notice.






	32.3	 	Delivery






	 	(a)	 	Any communication or document made or delivered by one person to another under or in
connection with the Finance Documents will only be effective:






	 	(i)	 	if by way of fax, when
received in legible form; or
	 
	 	(ii)	 	if by way of letter, when it has been left at the
relevant address or five Business Days after being submitted to courier in an envelope
addressed to it at that address,






	 	 	 	and, if a particular department or officer is specified as
part of its address details provided under clause 32.2 (Addresses), if addressed to that
department or officer.
	 
	 	(b)	 	Any communication or document to be made or delivered to the
Facility Agent will be effective only when actually received by the Facility Agent and then
only if it is expressly marked for the attention of the department or officer identified
with the Facility Agent’s signature below (or any substitute department or officer as the
Facility Agent shall specify for this purpose).
	 
	 	(c)	 	All notices from or to the Borrower shall be sent through the Facility Agent.






	32.4	 	Notification of address and fax number
	 
	 	 	Promptly upon receipt of notification of an address or fax number or change of address or
fax number pursuant to clause 32.2 (Addresses) or changing its own address or fax number,
the Facility Agent shall notify the other Parties.
	 
	32.5	 	Electronic communication






	 	(a)	 	Any communication to be made between the Borrower, Agent and a Lender under
or in connection with the Finance Documents may be made by electronic mail or other
electronic means, if the Borrower, Agent and the relevant Lender:






	 	(i)	 	agree that, unless and until notified to the contrary, this
is to be an accepted form of communication (and for the avoidance of doubt the
Parties hereby so agree that it is an accepted form of communication under the
Finance Documents); and
	 
	 	(ii)	 	notify each other in writing of their electronic mail address
and/or any other information required to enable the sending and receipt of
information by that means.






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	 	(b)	 	The Borrower, Agent and each Lender shall notify each other of any change to their
electronic mail address or any other such information supplied by them.
	 
	 	(b)	 	Any electronic communication made between the Borrower, Agent and a Lender will be
effective only when actually received in readable form and in the case of any electronic
communication made by the Borrower or a Lender to an Agent only if it is addressed in such
a manner as that Agent shall specify for this purpose.






	32.6	 	English language






	 	(a)	 	Any notice given under or in connection with any Finance Document must be in English.
	 
	 	(b)	 	All other documents provided under or in connection with any Finance Document must be:






	 	(i)	 	in English; or
	 
	 	(ii)	 	if not in English, and if so required by the Facility Agent,
accompanied by a certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other official document.






	33.	 	CALCULATIONS AND CERTIFICATES
	 
	33.1	 	Accounts
	 
	 	 	In any litigation or arbitration proceedings arising out of or in connection with a Finance
Document, the entries made in the accounts maintained by a Finance Party are prima facie
evidence of the matters to which they relate.
	 
	33.2	 	Certificates and Determinations
	 
	 	 	Any certification or determination by a Finance Party of a rate or amount under any Finance
Document is, in the absence of manifest error, conclusive evidence of the matters to which
it relates.
	 
	33.3	 	Day count convention
	 
	 	 	Any interest, commission or fee accruing under a Finance Document will accrue from day to
day and is calculated on the basis of the actual number of days elapsed and a year of 360
days or, in any case where the practice in the Relevant Interbank Market differs, in
accordance with that market practice.
	 
	33.4	 	Currency conversion
	 
	 	 	If at any time for any purpose (including for converting any sum received by an
Administrative Party under any Finance Document or otherwise which is denominated in a
currency which is not US Dollars) an Administrative Party is required or wishes to convert
a sum of money into another currency, it shall use that Administrative Party’s Spot Rate.





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	34.	 	PARTIAL INVALIDITY
	 
	 	 	If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or
unenforceable in any respect under any Law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of such provision under the Law of any other jurisdiction will in any way be
affected or impaired.
	 
	35.	 	REMEDIES AND WAIVERS
	 
	 	 	No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any
right or remedy under the Finance Documents shall operate as a waiver, nor shall any single
or partial exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by Law.
	 
	36.	 	AMENDMENTS AND WAIVERS
	 
	36.1	 	Required consents






	 	(a)	 	Subject to clause 36.2 (Exceptions):






	 	(i)	 	a Finance Document may be amended only with the consent of the Majority Lenders
and the relevant Obligor party thereto;
	 
	 	(ii)	 	compliance by the relevant Obligor with any provision of a Finance Document
may be waived only with the consent of the Majority Lenders; and
	 
	 	(iii)	 	compliance by a Finance Party with any provision of a Finance Document may be
waived only with the consent of the Majority Lenders and the relevant Obligor party
thereto.






	 	 	 	Any such amendment or waiver shall be binding on all Parties.
	 
	 	(b)	 	The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this clause.






	36.2	 	Exceptions






	 	(a)	 	An amendment or waiver that has the effect of changing or which relates to:






	 	(i)	 	the definition of “Majority Lenders” in clause 1.1 (Definitions);
	 
	 	(ii)	 	an extension to the date of payment of any amount under the Finance Documents;
	 
	 	(iii)	 	an extension of the Availability Period;
	 
	 	(iv)	 	a reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission payable;
	 
	 	(v)	 	an increase in or an extension of any Commitment; (vi) a change in the currency of the Facility;
	 
	 	(vi)	 	a change in the currency of the Facility;




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	 	(vii)	 	a change to the Obligors;
	 
	 	(viii)	 	any provision which expressly requires the consent of all the Lenders;
	 
	 	(ix)	 	clause 2.2 (Finance Parties’ rights and obligations), clause 25 (Changes to the Lenders),
clause 26 (Changes to the Obligors), clause 27.10 (Lenders’ Indemnity to the Agents) or this clause
36 (Amendments and waivers); or

	 
	 	(x)	 	

the release of any Charge (or part thereof) or of any
Collateral (or part thereof) (except as provided in any Security Document),
shall not be made without the prior consent of all the Lenders.






	 	(b)	 	An amendment or waiver which relates to the rights or obligations of any Administrative
Party may not be effected without the consent of that Administrative Party.






	37.	 	COUNTERPARTS
	 
	 	 	Each Finance Document may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of the Finance
Document.
	 
	38.	 	GOVERNING LAW
	 
	 	 	This Agreement and any non-contractual obligations arising out of or in connection with it
shall be governed by English law.
	 
	39.	 	ENFORCEMENT
	 
	39.1	 	Jurisdiction of English courts






	 	(a)	 	The courts of England have exclusive jurisdiction to settle any dispute arising out of
or in connection with this Agreement (including a dispute relating to the existence,
validity or termination of this Agreement or any non-contractual obligation arising out of
or in connection with this Agreement (whether in whole or in part)) (a
“Dispute").
	 
	 	(b)	 	The Parties agree that the courts of England are the most appropriate and convenient
courts to settle Disputes and accordingly no Party will argue to the contrary.
	 
	 	(c)	 	This clause 39.1 (Jurisdiction of English courts) is for the benefit of the Finance
Parties only. As a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent proceedings in any number of
jurisdictions.






	39.2	 	Service of process
	 
	 	 	Without prejudice to any other mode of service allowed under any relevant law, each
Obligor:






	 	(a)	 	irrevocably appoints Law Debenture Corporate Services Limited as its agent for
service of process in relation to any proceedings before the English courts in




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	 	 	 	connection with any Finance Document (and the Borrower by its execution of this
Agreement, accepts that appointment); and
	 
	 	(b)	 	agrees that failure by an agent for service of process to notify the Borrower of
the process will not invalidate the proceedings concerned.






	 	 	If any person appointed as an agent for service of process is unable for any reason to act as
agent for service of process, the Borrower must immediately (and in any event within five days
of such event taking place) appoint another agent on terms acceptable to the Agent. Failing
this, the Agent may appoint another agent for this purpose.




The Borrower expressly agrees and consents to the provisions of this clause 39 (Enforcement)
and clause 38 (Governing law).



This Agreement has been entered into on the date stated at the beginning of this Agreement.





97









 








SCHEDULE 1




Original Lenders




	 	 	 	 	 
	Name of Original Lender	 	Commitment (US$)
	Credit Suisse
	 	US$	45,000,000	 
	Total
	 	US$	45,000,000	 






98









 






SCHEDULE 2




Conditions precedent





	1.	 	Obligors






	 	(a)	 	A copy of the constitutional documents of each Obligor (including Articles of
Incorporation and Bylaws).
	 
	 	(b)	 	A copy of a resolution of the board of directors of each Obligor:






	 	(i)	 	approving the terms of, and the transactions contemplated by, the Finance
Documents to which it is a party and resolving that it execute, deliver and perform
the Transaction Documents to which it is a party;
	 
	 	(ii)	 	authorising a specified person or persons to execute the Finance Documents to
which it is a party on its behalf; and
	 
	 	(iii)	 	authorising a specified person or persons, on its behalf, to sign and/or
despatch all documents and notices (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under or in connection with the
Finance Documents to which it is a party.






	 	(c)	 	A Good Standing Certificate of the Borrower and Guarantor.
	 
	 	(d)	 	An Incumbency Certificate of the Borrower and Guarantor.
	 
	 	(e)	 	An Officer’s Certificate of the Borrower and Guarantor including:






	 	(i)	 	confirmation that its borrowing or guaranteeing or securing, as appropriate,
the Total Commitments would not cause any borrowing, guarantee, security or similar
limit binding on it to be exceeded;
	 
	 	(ii)	 	certification that each copy document relating to it specified in this part 1
of schedule 2 is correct, complete and in full force and effect and has not been
amended or superseded as at a date no earlier than the date of this Agreement; and
	 
	 	(iii)	 	a specimen of the signature of each person authorised by the resolution
referred to in paragraph 1(b) above in relation to the Finance Documents and
related documents.






	2.	 	Finance documents






	 	(a)	 	This Agreement executed by the Borrower.
	 
	 	(b)	 	The Fee Letter and the Hedging Strategy Letter executed by the Borrower.
	 
	 	(c)	 	At least two originals of each of the Security Documents executed by the applicable
Obligors.
	 
	 	(d)	 	Any Hedging Arrangement which is to be executed on or before the first Utilisation Date
pursuant to the Hedging Strategy Letter.




99









 












	 	(e)	 	All share certificates, transfers and stock transfer forms or equivalent duly executed
by the Guarantor in blank in relation to the assets subject to or expressed to be subject
to the Guarantor Pledge Agreement and all other documents of title to be provided under the
Security Documents.






	3.	 	Legal opinions






	 	(a)	 	A legal opinion of DLA Piper UK LLP, legal advisers to the Agent and the Arranger as to
English law.
	 
	 	(b)	 	A legal opinion of Perkins Coie LLP, legal advisers to the Borrower, as to Alaska law
in relation to the Deed of Trust and any other Finance Documents governed by Alaska law.
	 
	 	(c)	 	A legal opinion of Gibson, Dunn & Crutcher LLP, legal advisers to the Borrower, as to
Delaware law in relation to the status and capacity of the Borrower and its entry into and
submission to the laws of Relevant Jurisdictions of each of the Finance Documents.
	 
	 	(d)	 	A legal opinion of Perkins Coie LLP, legal advisers to the Borrower, as to Idaho law in
relation to the status and capacity of the Guarantor and its entry into and submission to
the laws of Relevant Jurisdictions of the Facility Guarantee and the Project Cost Guarantee
(and any other Finance Documents to which it is a party).
	 
	 	(e)	 	A legal opinion of Gibson,
Dunn & Crutcher LLP, legal advisers to the Borrower, as to New York law in relation to the
Finance Documents governed by that law.






	4.	 	Other documents and evidence






	 	(a)	 	Evidence that the fees, costs and expenses then due from the Borrower pursuant to
clause 11 (Fees), clause 15 (Costs and expenses) and clause 12.5 (Stamp taxes) have been
paid or will be paid by or immediately after the first Utilisation Date.
	 
	 	(b)	 	Evidence that the Borrower has given irrevocable instructions to the Facility Agent to
deposit into the Debt Service Reserve Account the Minimum Balance immediately upon the
first Utilisation Date.
	 
	 	(c)	 	A certified copy of the Original Financial Statements and most recent management
accounts of each Obligor.
	 
	 	(d)	 	The Life of Mine Plan.
	 
	 	(e)	 	The Original Construction Plan. (f)
The Capex Budget.
	 
	 	(g)	 	The format as previously agreed between the Borrower and the Facility Agent of:






	 	(i)	 	the Monthly Construction Report;
	 
	 	(ii)	 	the Monthly Expenditure Statement; and
	 
	 	(iii)	 	the Production Report.




100









 












	 	(h)	 	Delivery to the Facility Agent of all existing surveys of the Site in the possession of the
Borrower.






	 	(i)	 	Approval by the Facility Agent of the Construction Contracts (a review to the extent that
any provision of such contracts might have a Material Adverse Effect) and a waiver or removal
of the ban on assignment in the Knight Piesold Construction Contract and the Golder Paste
Technology Limited Construction Contract.
	 
	 	(j)	 	Approval by the Facility Agent of the lease between the Borrower and Hyak Mining Company
(the “Hyak Lease") as to assignability and any other matters potentially adversely affecting
the interests of the Finance Parties.
	 
	 	(k)	 	A lessor’s confirmation to be entered into by Hyak Mining Company in favour of the Finance
Parties, and duly acknowledged by the Borrower, in form and substance satisfactory to the
Facility Agent, incorporating a confirmation by the lessor that there is no outstanding default
by the Borrower under the Hyak lease and an agreement by the lessor to notify the Facility
Agent (at the same time as it so notifies the Borrower) of any default whether non-payment of
rent or otherwise by the Borrower under the Hyak lease and giving the Finance Parties the same
opportunity to cure or remedy such breach as the Borrower has under the terms of the Hyak lease
and that it will not terminate the Hyak Lease if so cured or remedied.
	 
	 	(l)	 	A lessor’s confirmation to be entered into by the lessors of the Diana/Falls lease in
favour of the Finance Parties, and duly acknowledged by the Borrower, in form and substance
satisfactory to the Facility Agent, incorporating a confirmation by the lessors that there is
no outstanding default by the Borrower under the Diana/Falls lease and an agreement by the
lessors to notify the Facility Agent (at the same time as it so notifies the Borrower) of any
default whether non-payment of rent or otherwise by the Borrower under the Diana/Falls lease
and giving the Finance Parties the same opportunity to cure or remedy such breach as the
Borrower has under the terms of the Diana/Falls lease and that it will not terminate the
Diana/Falls lease if so cured or remedied.
	 
	 	(m)	 	Any third party consents required by the Facility Agent (acting reasonably) in connection
with the Borrower Security Agreement in respect of the Capital Equipment Leases and the
Construction Contracts.
	 
	 	(n)	 	Filing of the Deed of Trust with:






	 	(i)	 	the real property records of the Juneau Recording District as a deed of trust (which will
also serve as a fixture filing);
	 
	 	(ii)	 	the real property records of the Juneau Recording District as a financing statement; and

	 
	 	(iii)	 	the UCC records of the Juneau Recording District as a financing statement.






	 	(o)	 	UCC-1 Financing Statement in respect of Guarantor (to be filed with Idaho SOS).
	 
	 	(p)	 	UCC-1 Financing Statement in respect of Borrower (to be filed with Delaware SOS).
	 
	 	(q)	 	UCC-1 Financial Statement in respect of Borrower (to be filed with Anchorage SOS).
	 
	 	(r)	 	Satisfactory Idaho SOS lien search in respect of the Guarantor.




101









 












	 	(s)	 	Satisfactory Delaware SOS lien search in respect of Borrower.

	 
	 	(t)	 	Satisfactory Alaska SOS lien search in respect of Borrower.
	 
	 	(u)	 	Evidence of the release of all third party liens or encumbrances registered against the
name of the Borrower in the Alaska UCC filing records.
	 
	 	(v)	 	The Title Policy.
	 
	 	(w)	 	Initial Alaska searches against the Borrower and Guarantor for encumbrances, liens, taxes
and judgments affecting the real property of the Borrower. Searches to extend to records held
at the Juneau and (if applicable) Federal Courts, Juneau Recording District and other locations
necessary to identify all encumbrances affecting the real property of the Borrower.
	 
	 	(x)	 	A copy of any other Authorisation or other document, opinion or assurance which the
Facility Agent considers to be necessary in connection with the entry into and performance of
the transactions contemplated by any Finance Document or for the validity and enforceability of
any Finance Document.




102









 











SCHEDULE 3




Utilisation Request




	 	 	 
	From:

	 	Coeur Alaska Inc.
	 
	To:

	 	Credit Suisse
	 
	Dated:

	 	[u           ]






Dear Sirs


Coeur Alaska Inc.  — US$45,000,000 facility agreement dated [u           ] (the “Facility Agreement”)





	1.	 	We refer to the Facility Agreement. This is a Utilisation Request. Terms defined in the
Facility Agreement have the same meaning in this Utilisation Request unless given a different
meaning in this Utilisation Request.
	 
	2.	 	We wish to borrow the Loan on the following terms:





	 	 	 
	Proposed Utilisation Date:

	 	[u           ] (or, if that is not a Business Day, the next Business Day)
	 
	 	 
	Amount:

	 	US$ [45,000,000] or, if less, the Available Facility
	 
	 	 
	Interest Period:

	 	[Three] months







	3.	 	We confirm that each condition specified in clause 4.2 (Further conditions precedent) is
satisfied on the date of this Utilisation Request.
	 
	4.	 	The proceeds of this Loan should be credited to:






	 	(a)	 	in respect of an amount equal to the Minimum Balance as at the Utilisation Date
being, [u           ], to be credited to Debt Service Reserve Account;
	 
	 	(b)	 	US$[u           ] in respect of the arrangement fee payable in accordance with clause 11.1
(Arrangement fee) to the Facility Agent;
	 
	 	(c)	 	US$[u           ] in respect of the agency fee payable in accordance with clause
11.2 (Agency fee) to the Facility Agent;
	 
	 	(d)	 	[u           ] to the Facility Agent for payment by the Facility Agent of invoiced legal fees of
counsel to the Finance Parties; and
	 
	 	(e)	 	[u           ] in respect of the balance of the Utilisation less the amounts referred to in
paragraphs (a) to (d) above to the Proceeds Account.




103









 












	5.	 	This Utilisation Request is irrevocable.





	 	 	 	 	 
	Yours faithfully



For and on behalf of

Coeur Alaska Inc.

 	 	 
	(Sign)
 	 	 
	Name:  	[u           ]  	 	 
	Title:  	[u           ] 	 	 
	 




104









 





SCHEDULE 4




Information package




Monthly Construction Reports




Monthly Expenditure Statements




Capex Budget




Project Schedule




Production Reports




Life of Mine Plan




Original Construction Plan




105









 





SCHEDULE 5




Form of Transfer Certificate




	 	 	 
	To:

	 	Credit Suisse, as Facility Agent
	 
	 	 
	From:

	 	[Insert name of Existing Lender] (the “Existing Lender”)
	 
	 	 
	and
	 	 
	 

	 	[Insert name of New Lender] (the “New Lender”)





Dated: [   ]



Dear Sirs



COEUR ALASKA INC.  — US$45,000,000 facility agreement dated [u            ] (the “Facility Agreement”)





	1.	 	We refer to the Facility Agreement. This is a Transfer Certificate. Terms defined in the
Facility Agreement have the same meaning in this Transfer Certificate unless given a different
meaning in this Transfer Certificate.
	 
	2.	 	We refer to clause 25.5 (Procedure for transfer) of the Facility Agreement:






	 	(a)	 	The Existing Lender and the New Lender agree to the Existing Lender transferring to the
New Lender by novation all or part of the Existing Lender’s Commitment, rights and
obligations referred to in the schedule hereto in accordance with clause 25.5 (Procedure
for transfer) of the Facility Agreement.
	 
	 	(b)	 	The proposed Transfer Date is [u           ].
	 
	 	(c)	 	The Facility Office and address, fax number and attention details for notices of the New
Lender for the purposes of clause 32.2 (Addresses) of the Facility Agreement are set out in the
schedule.






	3.	 	The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set
out in clause 25.4(c) (Limitation of responsibility of Existing Lenders).
	 
	4.	 	This Transfer Certificate may be executed in any number of counterparts and this has the same
effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
	 
	5.	 	This Transfer Certificate is governed by the law of the State of New York.




106









 











THE SCHEDULE




Commitment/rights and obligations to be transferred




[Insert relevant details]




[Facility Office address, fax number and attention details for notices and account details for

payments,]




	 	 	 	 	 	 	 	 	 	 	 
	[Existing Lender]	 	 	 	[New Lender]	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 





     This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as
[Insert date].



For and on behalf of

Credit Suisse (in its capacity as Facility Agent)



	 	 	 	 	 
	 	 	 
	(Sign)
 	 	 
	Name:  	[u           ]  	 	 
	Title:  	[u           ]

	 	 
	Date:   	[u           ]
	 	 
	 




107











 





SCHEDULE 6




Security Provisions





	1.	 	Defects in Security
	 
	 	 	The Security Agent shall not be liable for any failure or omission to perfect, or defect in
perfecting, the Security created pursuant to any Security Document, including:






	 	(a)	 	failure to obtain any Authorisation for the execution, validity, enforceability or
admissibility in evidence of any Security Document; or
	 
	 	(b)	 	failure to effect or procure registration of or otherwise protect or perfect any of the
Security created by the Security Documents under any Laws in any territory.






	2.	 	No enquiry
	 
	 	 	The Security Agent may accept without enquiry, requisition, objection or investigation such
title as the Borrower may have to any Collateral.






	3.	 	Retention of documents
	 
	 	 	The Security Agent may hold title deeds and other documents relating to any of the
Collateral in such manner as it sees fit (including allowing the Borrower to retain them).
	 
	4.	 	Indemnity out of the Collateral
	 
	 	 	The Security Agent and every Receiver, Delegate, or other similar person appointed under
any Security Document may indemnify itself out of the Collateral against any cost, loss or
liability incurred by it in that capacity (otherwise than by reason of its own gross
negligence or wilful misconduct).






	5.	 	Basis of distribution
	 
	 	 	To enable it to make any distribution, the Security Agent may fix a date as at which the
amount of the Secured Liabilities is to be calculated and may require, and rely on, a
certificate from any Finance Party giving details of:






	 	(a)	 	any sums due or owing to any
Finance Party as at that date; and
	 
	 	(b)	 	such other matters as it thinks fit.






	6.	 	No duty to collect payments
	 
	 	 	The Security Agent shall not have any duty:






	 	(a)	 	to ensure that any payment or other financial benefit in respect of any of the
Collateral is duly and punctually paid, received or collected; or
	 
	 	(b)	 	to ensure the taking up of
any (or any offer of any) stocks,
shares, rights, moneys or other
property accruing or offered at
any time by way of interest,
dividend, redemption, bonus,
rights, preference, option,
warrant or otherwise in respect
of any of the Collateral.




108









 












	7.	 	Appropriation






	 	(a)	 	Each Party irrevocably waives any right to appropriate any payment to, or other sum
received, recovered or held by, the Security Agent in or towards payment of any particular
part of the Secured Liabilities and agrees that the Security Agent shall have the exclusive
right to do so.
	 
	 	(b)	 	Sub-paragraph (a) above will override any application made or purported to be made by
any other person.






	8.	 	Investments
	 
	 	 	All money received or held by the Security Agent under the Finance Documents may, in the
name of, or under the control of, the Security Agent:






	 	(a)	 	be invested in any investment it may select; or
	 
	 	(b)	 	be deposited at such bank or institution (including itself, any other Finance Party or
any Affiliate of any Finance Party) as it thinks fit.






	9.	 	Suspense Account
	 
	 	 	Subject to paragraph 10 below the Security Agent may:






	 	(a)	 	hold in an interest bearing suspense account any money received by it from the Borrower
or any other person; and
	 
	 	(b)	 	invest an amount equal to the balance from time to time standing to the credit of that
suspense account in any of the investments authorised by paragraph 8 above.






	10.	 	Timing of Distributions
	 
	 	 	Distributions by the Security Agent shall be made as and when determined by it.
	 
	11.	 	Delegation






	 	(a)	 	The Security Agent may:






	 	(i)	 	employ and pay an agent selected by it to transact or conduct any business and
to do all acts required to be done by it (including the receipt and payment of
money);
	 
	 	(ii)	 	delegate to any person on any terms (including power to sub-delegate)
all or any of its functions; and
	 
	 	(iii)	 	with the prior consent of the Majority
Lenders, appoint, on such terms as it may determine, or remove, any person to act
either as separate or joint security trustee or agent with those rights and
obligations vested in the Security Agent by this Agreement or any Security
Document.






109









 









	 	(b)	 	The Security Agent will not be:






	 	(i)	 	responsible to anyone for any misconduct or omission by any agent, delegate or security
trustee or agent appointed by it pursuant to sub-paragraph (a) above; or
	 
	 	(ii)	 	bound to supervise the proceedings or acts of any such agent, delegate or security
trustee or agent,






	 	 	provided that it exercises reasonable care in selecting that agent, delegate or security
trustee or agent.






	12.	 	Unwinding
	 
	 	 	Any appropriation or distribution which later transpires to have been or is agreed by the
Security Agent to have been invalid or which has to be refunded shall be refunded and shall
be deemed never to have been made.
	 
	13.	 	Lenders
	 
	 	 	The Security Agent shall be entitled to assume that each Lender is a Lender unless notified
by the Facility Agent to the contrary.






110











 





SCHEDULE 7




Final Completion Certificate




To: Agent and Lenders



Date:




Dear Sirs,



We refer to the project facility agreement dated for reference [u      ] between Coeur Alaska
Inc., as borrower, Coeur D’Alene Mines Corporation, as guarantor, Credit Suisse, as agent and the
financial institutions named in schedule 1 thereto as lenders, as amended, supplemented, restated
or replaced from time to time (the “Project Facility Agreement”). All defined terms set forth, but
not otherwise defined, in this certificate will have the respective meanings set forth in the
Project Facility Agreement, unless the context requires otherwise.



The Borrower hereby certifies that all of the criteria for Final Completion, as outlined in
schedule [u      ] to the Project Facility Agreement (excluding the Financial Tests set out in
clause [u      ] of schedule [u      ] to the Project Facility Agreement), have been satisfied.



Signed by Coeur Alaska Inc.



by its authorised signatories:




	 	 	 	 	 	 	 
	 

Officer

	 	 
	 	 

Officer
	 	 
	 
	 	 	 	 	 	 
	 

Name (please print)

	 	 
	 	 

Name (please print)	 	 
	 
	 	 	 	 	 	 
	Date:                                     
                              

	 	 	 	Date:                                     
                              

	 	 










Facility Agent acknowledges and agrees to the terms contained herein.




	 	 	 	 	 	 	 
	 

Officer

	 	 
	 	 

Officer
	 	 
	 
	 	 	 	 	 	 
	 

Name (please print)

	 	 
	 	 

Name (please print)	 	 
	 
	 	 	 	 	 	 
	Date:                                     
                              

	 	 	 	Date:                                     
                              

	 	 







111











 





SCHEDULE 8




Capital Equipment Leases




[as attached overleaf]




112









 





SIGNATURES




	 	 	 
	Borrower
	 	 
	 
	 	 
	 
	 	 
	EXECUTED by:
	 	)
	COEUR ALASKA INC.
	 	)
	 
	 	 
	Acting by:
	 	/s/ Mitchell J. Krebs
	 
	 	 
	 
	 	 
	Name:
	 	Mitchell J. Krebs
	 
	 	 
	Title:
	 	Chief Financial Officer
	 
	 	 
	Address:
	 	3031 Clinton Drive, Suite 202
	 
	 	Juneau, AK 99801
	 
	 	United States
	 
	 	 
	Attention:
	 	The General Manager
	 
	 	 
	Telephone:
	 	+1 208 667-3511
	 
	 	 
	Fax:
	 	+1 208 667-2213
	 
	 	 
	Email:
	 	KKast@coeur.com
	 
	 	 
	With a copy to:
	 	505 Front Avenue, PO Box 1
	 
	 	Coeur d’Alene, ID 83814-0316
	 
	 	United States
	 
	 	 
	Attention:
	 	Mitchell J. Krebs
	 
	 	 
	Telephone:
	 	+1 208 769 8152
	 
	 	 
	Fax:
	 	+1 208 667 2213
	 
	 	 
	Email:
	 	MKrebs@coeur.com






113









 






	 	 	 
	Security Agent
	 	 
	 
	 	 
	 
	 	 
	EXECUTED by:
	 	)
	CREDIT SUISSE
	 	)
	 
	 	 
	Acting by:
	 	/s/ C. D. Hunter
	 
	 	 
	Name:
	 	C. D. Hunter
	 
	 	 
	Title:
	 	Director
	 
	 	 
	and
	 	/s/ Flavia R. Sennhauser
	 
	 	 
	Name:
	 	Flavia R. Sennhauser
	 
	 	 
	Title:
	 	Vice President
	 
	 	 
	Address:
	 	Giesshuebelstrasse 30, 8070 Zurich
	 
	 	Switzerland
	 
	 	 
	Attention:
	 	Flavia Sennhauser / Erik Boehmer
	 
	 	 
	Telephone:
	 	+41 44 334 68 43 / +41 44 333 21 39
	 
	 	 
	Fax:
	 	+41 44 333 21 04
	 
	 	 
	Email:
	 	flavia.r.sennhauser@credit-suisse.com /
	 
	 	erik.boehmer@credit-suisse.com
	 
	 	 
	 
	 	 
	Facility Agent
	 	 
	 
	 	 
	EXECUTED by:
	 	)
	CREDIT SUISSE
	 	)
	 
	 	 
	Acting by:
	 	/s/ C. D. Hunter
	 
	 	 
	Name:
	 	C. D. Hunter
	 
	 	 
	Title:
	 	Director
	 
	 	 
	and
	 	/s/ Flavia R. Sennhauser
	 
	 	 
	Name:
	 	Flavia R. Sennhauser
	 
	 	 
	Title:
	 	Vice President
	 
	 	 
	Address:
	 	Giesshuebelstrasse 30, 8070 Zurich
	 
	 	Switzerland






114









 






	 	 	 
	Attention:
	 	Flavia Sennhauser / Erik Boehmer
	 
	 	 
	Telephone:
	 	+41 44 334 68 43 / +41 44 333 21 39
	 
	 	 
	Fax:
	 	+41 44 333 21 04
	 
	 	 
	Email:
	 	flavia.r.sennhauser@credit-suisse.com /
	 
	 	erik.boehmer@credit-suisse.com
	 
	 	 
	Arranger
	 	 
	 
	 	 
	 
	 	 
	EXECUTED by:
	 	)
	CREDIT SUISSE
	 	)
	 
	 	 
	Acting by:
	 	/s/ C. D. Hunter
	 
	 	 
	Name:
	 	C. D. Hunter
	 
	 	 
	Title:
	 	Director
	 
	 	 
	and
	 	/s/ Flavia R. Sennhauser
	 
	 	 
	Name:
	 	Flavia R. Sennhauser
	 
	 	 
	Title:
	 	Vice President
	 
	 	 
	 
	 	 
	Hedge Counterparty
	 	 
	 
	 	 
	EXECUTED by:
	 	)
	CREDIT SUISSE
	 	)
	 
	 	 
	Acting by:
	 	/s/ C. D. Hunter
	 
	 	 
	Name:
	 	C. D. Hunter
	 
	 	 
	Title:
	 	Director
	 
	 	 
	and
	 	/s/ Flavia R. Sennhauser
	 
	 	 
	Name:
	 	Flavia R. Sennhauser
	 
	 	 
	Title:
	 	Vice President






115









 






	 	 	 
	Lender
	 	 
	 
	 	 
	 
	 	 
	EXECUTED by:
	 	)
	CREDIT SUISSE
	 	)
	 
	 	 
	Acting by:
	 	/s/ C. D. Hunter
	 
	 	 
	Name:
	 	C. D. Hunter
	 
	 	 
	Title:
	 	Director
	 
	 	 
	and
	 	/s/ Flavia R. Sennhauser
	 
	 	 
	Name:
	 	Flavia R. Sennhauser
	 
	 	 
	Title:
	 	Vice President







116