1
EXECUTION COPY EXHIBIT 10(kk)
LOAN AGREEMENT,
dated as of December 23, 1996,
among
COEUR D'XXXXX XXXXX CORPORATION,
as the Borrower,
N M ROTHSCHILD & SONS LIMITED
and
BAYERISCHE VEREINSBANK AG
as the Banks,
and
N M ROTHSCHILD & SONS LIMITED,
as the Agent for the Banks.
2
TABLE OF CONTENTS
Page
----
ARTICLE 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.3. Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.4. Accounting and Financial Determinations . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 2. COMMITMENTS AND FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.1. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.2. Banks not Permitted or Required to make Loans . . . . . . . . . . . . . . . . . 15
2.3. Nature of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.4. Reduction of Total Commitment Amount . . . . . . . . . . . . . . . . . . . . . . 15
2.5. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 3. LOANS; PROCEDURE AND PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1. Procedure for Making of Loans . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.2. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.3. Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.4. Interest Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.4.1. Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.4.2. Post-Maturity Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.4.3. Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.4.4. Rate Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.6. Payments, Computations, etc . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.7. Proration of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.8. Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 4. INTEREST PERIODS AND FUNDING, ETC. . . . . . . . . . . . . . . . . . . . . . . . 22
4.1. Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.2. Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.3. U.S. Dollars Unavailable . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.4. Increased Costs, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.5. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.6. Increased Capital Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.7. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 5. CONDITIONS PRECEDENT TO MAKING OF LOANS . . . . . . . . . . . . . . . . . . . . . 25
5.1. Initial Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.1.1. Resolutions, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.1.2. Solvency Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.1.3. Fachinal Transfer Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.1.4. Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.1.5. Closing Fees, Expenses, etc . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.2. All Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3
5.2.1. Compliance with Warranties, No Default, etc . . . . . . . . . . . . . . . . . . 27
5.2.2. Absence of Litigation, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.2.3. Borrowing Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.2.4. Satisfactory Legal Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.3. Waiver of Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 6. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.1. Organization, Power, Authority, etc . . . . . . . . . . . . . . . . . . . . . . 28
6.2. Due Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.3. Validity, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.4. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.5. Absence of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.6. Litigation, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.7. Regulation G, T, U, and X . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.8. Government Approval, Regulation, etc . . . . . . . . . . . . . . . . . . . . . . 30
6.9. Burdensome Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.10. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.11. Pension and Welfare Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.12. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.13. Patents, Trademarks, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.14. Approvals, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.15. Ownership of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.16. Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.17. Environmental Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.18. Royalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.19. Pari Passu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 7. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.1. Certain Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.1.1. Financial Information, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.1.2. Compliance with Laws, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.1.3. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.1.4. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.1.5. Notice of Default, Litigation, etc . . . . . . . . . . . . . . . . . . . . . . . 35
7.1.6. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.1.7. Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.1.8. Environmental Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.1.9. Use of Loan Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.2. Certain Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.2.1. Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.2.2. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.2.3. Financial Condition, etc. of the Borrower . . . . . . . . . . . . . . . . . . . 38
7.2.4. Restricted Payments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.2.5. Take or Pay Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.2.6. Consolidation, Merger, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.2.7. Asset Dispositions, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.2.8. Restrictive Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-ii-
4
7.2.9. Capital Expenditures, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.2.10. Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.2.11. Modification of Certain Agreements . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1.1. Non-Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1.2. Breach of Representation or Warranty . . . . . . . . . . . . . . . . . . . . . . 41
8.1.3. Non-Performance of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . 41
8.1.4. Non-Performance of Other Obligations . . . . . . . . . . . . . . . . . . . . . . 41
8.1.5. Default on Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1.6. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.1.7. Pension Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.1.8. Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.1.9. Bankruptcy, Insolvency, etc . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.1.10. Materially Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . 43
8.1.11. Approvals, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.2. Action if Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
8.3. Action if Other Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 9. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.1. Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.2. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.3. Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.4. Loans by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.5. Rothschild as the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.6. Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.7. Copies, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.8. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.9. Funding Reliance, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.10. Application of Article 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.1. Waivers, Amendments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.3. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.5. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.6. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.7. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.8. Counterparts, Effectiveness, etc . . . . . . . . . . . . . . . . . . . . . . . . 49
10.9. Governing Law; Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 49
10.10. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
10.11. Sale and Transfer of Loans; Participations in Loans . . . . . . . . . . . . . . 49
10.11.1. Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.11.2. Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.12. Other Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
-iii-
5
10.13. Change in Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . 51
10.14. Forum Selection and Consent to Jurisdiction . . . . . . . . . . . . . . . . . . 52
10.15. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.16. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SCHEDULE I - Disclosure Schedule
EXHIBIT A - Bank Assignment Agreement
EXHIBIT B - Borrowing Request
EXHIBIT C - Interest Period Selection Notice
EXHIBIT D - Compliance Certificate
EXHIBIT E - Solvency Certificate
EXHIBIT F - Opinion of Xxxxxxx X. Xxxx
EXHIBIT G - Fachinal Transfer Agreement
-iv-
6
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of December 23, 1996, among (1) COEUR
D'XXXXX XXXXX CORPORATION, an Idaho corporation (the "Borrower"), (2) the
various banking institutions referred to on the signature pages hereof as the
banks (collectively with their respective successors and permitted assigns, the
"Banks"), and (3) N M ROTHSCHILD & SONS LIMITED, a company organized and
existing under the laws of England ("Rothschild"), in both its individual
capacity as a Bank and its capacity as the Agent for the Banks,
W I T N E S E T H:
WHEREAS, the Borrower is engaged, directly and through its
Subsidiaries (including Compania Fachinal), in the business of the mining,
producing and selling of gold, silver and copper contained within various ore
deposits;
WHEREAS, pursuant to the Existing Loan Agreement, the Banks have
extended loans to Compania Fachinal, a wholly owned indirect Subsidiary of the
Borrower, for the purposes of financing a portion of the construction and
development costs of the Fachinal Project and its initial working capital
requirements and the Borrower has guaranteed the payment and other obligations
of Compania Fachinal thereunder;
WHEREAS, the Borrower has requested that the Bank Parties transfer all
of their respective rights and obligations under the Existing Loan Agreement to
Coeur Bullion and, in consideration thereof, the Borrower has agreed to pay the
Banks an amount equivalent to the Fachinal Outstanding Amount, in each case as
set forth in greater detail in the Fachinal Transfer Agreement;
WHEREAS, the Borrower desires to obtain Commitments from the Banks to
make Loans for the purposes of (a) initially, financing the payment of the
Fachinal Outstanding Principal Amount by the Borrower to the Banks pursuant to
the Fachinal Transfer Agreement and, as a direct result thereof, refinancing
the Indebtedness outstanding under the Existing Loan Agreement and, (b)
subsequently, financing general working capital requirements of the Borrower
and its Subsidiaries; and
WHEREAS, each Bank is willing, on the terms and conditions hereinafter
set forth (including Article 5), to extend its Commitment and to make Loans to
the Borrower;
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1. DEFINITIONS
SECTION 1.1. DEFINED TERMS. The following terms when used in this
Agreement, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
7
"Affected Bank" is defined in Section 4.3.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls or is controlled by or under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Pension Plan). A Person shall be deemed to be "controlled
by" any other Person if such other Person possesses, directly or indirectly,
power:
(a) to vote ten per cent (10%) or more of the securities
(on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners of such Person; or
(b) to direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agent" means:
(a) Rothschild; or
(b) such other Person as shall have subsequently been
appointed as the successor Agent pursuant to Section 9.3,
in either such case, in its capacity as agent for the Banks.
"Agreement" means, on any date, this Loan Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, restated, or otherwise modified and in effect on such date.
"Applicable Margin" means, at any time, one and one half of one per
cent (1.5%) per annum.
"Approval" means each and every approval, authorization, license,
permit, consent, filing and registration by or with any Federal, state, or
other U.S. or foreign regulatory authority or third party or other Person
necessary to authorize or permit the execution, delivery or performance of this
Agreement or any other Loan Document or for the validity or enforceability
hereof or thereof.
"Assignee Bank" is defined in Section 10.11.1.
"Assignor Bank" is defined in Section 10.11.1.
"Authorized Officer" means those of the officers of the Borrower whose
signatures and incumbency shall have been certified to the Agent pursuant to
clause (a)(ii) of Section 5.1.1.
-2-
8
"Available Cash" means, at any date, the sum of the aggregate
principal amount of,
(a) freely and immediately available cash deposited at
such date in the name of the Borrower with any bank or financial
institution acceptable to the Agent,
plus
(b) Cash Equivalent Investments of the Borrower at such
date,
in each such case which are held by the Borrower free and clear of any Lien or
any other interest whatsoever owned or claimed by any other Person (including
set-off rights available to the holder of any such deposit pursuant to general
principles of applicable law or otherwise). For purposes of this Agreement,
Available Cash shall be calculated in U.S. Dollars and, in the case of any
amount denominated in any currency other than U.S. Dollars, shall be converted
into U.S. Dollars at the Agent's spot rate of exchange between such currency
and U.S. Dollars as quoted on the date of calculation of Available Cash.
"Banks" is defined in the preamble.
"Bank Assignment Agreement" means an agreement substantially in the
form of Exhibit A attached hereto.
"Bank Parties" means, collectively, each Bank and the Agent.
"Borrower" is defined in the preamble.
"Borrowing Request" means a borrowing request and certificate
substantially in the form of Exhibit B attached hereto duly executed by an
Authorized Officer of the Borrower.
"Business Day" means any day:
(a) on which dealings in U.S. Dollars are carried on in
the London interbank market; and
(b) which is neither a Saturday nor a Sunday nor a legal
holiday on which banks are authorized or required to be closed in
London, England or New York, New York.
"Capital Expenditure" means:
(a) any expenditure of the Borrower or any Subsidiary for
fixed or capital assets which, in accordance with GAAP, would be
classified as capital expenditures; and
(b) any Capitalized Lease Liability.
-3-
9
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any Subsidiary under any leasing or similar arrangement which, in
accordance with GAAP, would be classified as capitalized leases, and, for
purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of
a penalty.
"Cash Equivalent Investment" means, at any date:
(a) any evidence of Indebtedness issued or guaranteed by
the United States Government;
(b) commercial paper, maturing not more than nine months
from the date of issue, which is (i) rated at least A-l by Standard &
Poor's Rating Group, a division of McGraw Hill, Inc., and P-l by
Xxxxx'x Investors Service, Inc., (ii) issued by a corporation or
company (other than the Borrower or any Affiliate thereof) and (iii)
in certificated form (including master notes held by The Depository
Trust Company, a New York limited purpose trust company, or one or
more of its nominees or custodian banks);
(c) medium-term Indebtedness, maturing not more than
three years from the date of issue (or, in the case of any such
medium-term Indebtedness held by the Borrower on the Effective Date,
not more than three years from the Effective Date) which is (i) rated
at least A by Standard & Poor's Rating Group, a division of McGraw
Hill, Inc., and the equivalent thereof by Xxxxx'x Investors Services,
Inc., and (ii) issued by a corporation or company (other than the
Borrower or any Affiliate thereof; or
(d) any negotiable certificate of deposit or bankers'
acceptance (in either case, in certificated form and denominated in
U.S. Dollars), maturing not more than one year after such time, which
is issued by a commercial banking institution organized under the laws
of an OECD member country that has a combined capital and surplus and
undivided profits of not less than U.S.$500,000,000 (or the equivalent
thereof in any other currency).
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, reformed or otherwise modified from time
to time.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of twenty five per cent (25%) or more of the outstanding
shares of voting stock of the Borrower.
-4-
10
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Coeur Bullion" means Coeur Bullion Corporation, an Idaho corporation.
"Commitment" means, with respect to each Bank, such Bank's obligation
to make and continue its Loans pursuant to the terms and subject to the
conditions of this Agreement.
"Commitment Termination Date" means the earliest to occur of:
(a) June 30, 2001; and
(b) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b), the Commitments shall
terminate automatically and without any further action.
"Commitment Termination Event" means:
(a) the occurrence of any Default described in Section
8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the
giving of notice by the Agent, acting at the direction of the
Required Banks, to the Borrower that the Commitments have been
terminated.
"Compania Fachinal" means Compania Minera CDE Fachinal Limitada, a
limited liability company (sociedada de responsabilidad limitada) organized and
existing under the laws of Chile.
"Compliance Certificate" means a certificate duly executed by an
Authorized Officer of the Borrower in the form of Exhibit D attached hereto,
together with such changes as the Agent may from time to time reasonably
request for purposes of monitoring the Borrower's compliance herewith.
"Consolidated Current Assets" means, at any date, all amounts which
would be included as current assets on a consolidated balance sheet of the
Borrower and its Subsidiaries as at such date.
"Consolidated Current Liabilities" means, at any date, all amounts
which would be included as current liabilities on a consolidated balance sheet
of the Borrower and its Subsidiaries as at such date.
-5-
11
"Consolidated Current Ratio" means, at any date, the ratio of:
(a) Consolidated Current Assets as at such date;
to
(b) Consolidated Current Liabilities as at such date.
"Consolidated Qualifying Indebtedness" means, at any date, the amount
of Indebtedness of the Borrower and its Subsidiaries (excluding, however, (a)
Qualifying Subordinated Indebtedness and (b) Indebtedness in respect of the
undrawn face amount of letters of credit issued for the account of the Borrower
or any Subsidiary and issued by way of performance bonds required to be posted
in connection with the development and operation of any Mine) at such date.
"Consolidated Tangible Net Worth" means, at any date, the consolidated
net worth of the Borrower and its Subsidiaries after subtracting therefrom the
aggregate amount of any intangible assets of the Borrower and its Subsidiaries
including goodwill, franchises, licenses, patents, trademarks, trade names,
copyrights, service marks and brand names.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"Contractual Obligation" means any provision of any security issued by
the Borrower or of any Instrument or undertaking to which the Borrower is a
party or by which it or any of its property is bound.
"Controlled Group" means all members of any controlled group of
corporations and all members of a controlled group of 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 or Section 4001 of ERISA.
"Default" means any Event of Default or any condition or event which,
after notice or lapse of time or both, would constitute an Event of Default.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I as the same may be amended, supplemented, or otherwise modified from
time to time by the Borrower with the consent of the Agent.
-6-
12
"Effective Date" is defined in Section 10.8.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment issued in the U.S. by any federal, state or
local authority or in any other jurisdiction by any similar governmental or
other authority.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, reformed or modified and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect from time
to time. References to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Existing Loan Agreement" means the loan agreement, dated as of April
19, 1995 (as amended from time to time), among Compania Fachinal, the Borrower,
Coeur Bullion, the Banks and Rothschild, as the agent for the Banks thereunder.
"Fachinal Outstanding Amount" means the aggregate amount of principal
and accrued interest outstanding and unpaid in respect of loans made under the
Existing Loan Agreement as at the date of making of the initial Loans.
"Fachinal Outstanding Principal Amount" means the aggregate amount of
principal outstanding and unpaid in respect of loans made under the Existing
Loan Agreements as at the date of making of the initial Loans.
"Fachinal Project" has the meaning provided in the Existing Loan
Agreement.
"Fachinal Transfer Agreement" means the agreement among Compania
Fachinal, Coeur Bullion, the Borrower, CDE Chilean Mining Corporation and the
Bank Parties in the form of Exhibit G attached hereto.
"Fiscal Quarter" means any quarter of 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 (e.g. the "1995 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 or any successor thereto.
"GAAP" is defined in Section 1.4.
"Group" is defined in Section 9.5.
-7-
13
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended, reformed or otherwise
modified from time to time;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the meaning of any
other applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders) or
equivalent in any other jurisdiction relating to or imposing liability
or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, all as amended, reformed or otherwise
modified from time to time.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates, currency exchange rates or precious metals prices.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph, or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of the Borrower, any qualification or exception to such opinion or
certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of
any item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause the Borrower to be in default of any of its
obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for the purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to
the matters specifically mentioned.
-8-
14
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money,
precious metals or other commodities and all obligations of such
Person evidenced by bonds, debentures, notes, or other similar
instruments;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person which have been or
should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all other items which, in accordance with GAAP, would
be included as liabilities on the liability side of the balance sheet
of such Person as of the date at which Indebtedness is to be
determined;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) (i) all obligations of such Person to pay the
deferred purchase price of property or services, and (ii) all
liabilities (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including
liabilities arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect
of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person
shall include the amount of Indebtedness of any partnership or joint venture in
which such Person is a general partner or a joint venturer and in respect of
which such Person is obligated to pay.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Instrument" means any contract, agreement, indenture, mortgage,
document, or writing (whether by formal agreement, letter, or otherwise) under
which any obligation is evidenced, assumed, or undertaken, or any Lien (or
right or interest therein) is granted or perfected.
"Interest Period" means, relative to any Loan:
(a) initially, the period commencing on (and including)
the date such Loan is made and ending on (but excluding) the day which
numerically corresponds to such date which is:
-9-
15
(i) one, two, three or six months thereafter, as
the Borrower may irrevocably select in the Borrowing Request
for such Loan delivered pursuant to Section 3.1; or
(ii) such different period with respect to such
Loan as may be requested in writing to the Agent by the
Borrower not less than ten Business Days prior to the
commencement of such Interest Period and as to which the Agent
and the Banks may consent; and
(b) thereafter, each period commencing on (and including)
the last day of the immediately preceding Interest Period applicable
to such Loan and ending on (but excluding) the day which numerically
corresponds to such date which is:
(i) one, two, three or six months thereafter, as
the Borrower may irrevocably select in its relevant Interest
Period Selection Notice delivered pursuant to Section 4.1;or
(ii) such different period as may be requested in
writing to the Agent by the Borrower not less than ten
Business Days prior to the commencement of such Interest
Period and as to which the Agent and the Banks may consent;
provided, however, that:
(c) solely for purposes of making a payment on a
scheduled Maturity with respect to the outstanding Principal Amount of
any Loan, the Borrower may select an Interest Period of less than one
month's duration;
(d) if such Interest Period for any Loan would otherwise
end on a day which is not a Business Day, such Interest Period shall
end on the next following Business Day, unless such Business Day
occurs in the next following calendar month or would occur after June
30, 2001, in which case such Interest Period shall end on the
immediately preceding Business Day;
(e) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have expiration
dates occurring on more than five different dates;
(f) no Interest Period may end later than June 30, 2001;
(g) the Agent shall be able to select Interest Periods as
it may deem appropriate pursuant to the terms and conditions of
Section 4.1; and
(h) solely in the case of the initial Loans, the initial
Interest Period shall commence on (and include) the date on which such
Loans are made and end on (but exclude) the day which is the last day
of the interest period applicable to the loans outstanding under the
Existing Loan Agreement and which correspond to such initial Loans.
-10-
16
"Interest Period Selection Notice" means a notice of the selection of
an Interest Period and certificate duly executed by an Authorized Officer of
the Borrower, in the form of Exhibit C attached hereto.
"Investment" means, relative to any Person:
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel, relocation and similar advances
to officers and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person
in any other Person.
The amount of any Investment shall be the original principal or
capital amount thereof less all returns of principal or equity thereon (and
without adjustment by reason of the financial condition of such other Person)
and shall, if made by the transfer or exchange of property other than cash, be
deemed to have been made in an original principal or capital amount equal to
the fair market value of such property.
"Lending Office" means, (a) with respect to each Bank, the office of
such Bank designated as such below its signature hereto or such other office
maintained by or on behalf of such Bank (or any successor, Affiliate or
assignee of such Bank) as may be designated from time to time by notice from
such Bank to the Agent and the Borrower and (b) with respect to the Agent, the
office of the Agent designated as such from time to time by notice to the
Borrower and each Bank.
"LIBO Rate" means, relative to any Interest Period for any Loans, the
average (rounded upward, if necessary, to the nearest one sixteenth of one per
cent (1/16%)) of the quotes for "LIBOR", as such quotes appear on the Reuters
Screen LIBO Page as at or about 11:00 a.m., London time, for the number of
months (or different period) comprising such Interest Period, for an amount
comparable to such Loans, calculated at the date which is two Business Days
prior to the first day of such Interest Period; provided, however, that in the
event that less than two such quotes appear on such screen at such time, the
Agent will request the principal London office of the Reference Bank to provide
the Agent with its quotation for offers of U.S. Dollar deposits to leading
banks in the London interbank market for such period and in such comparable
amount, and the "LIBO Rate" shall equal such quoted rate.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in any property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" is defined in Section 2.1.
-11-
17
"Loan Document" means any of this Agreement and each other Instrument
executed by the Borrower and delivered to any Bank Party pursuant to this
Agreement.
"Maturity" means, relative to any Obligation, the date on which such
Obligation is stated to be due and payable, in whole or in part (in accordance
with this Agreement or otherwise), or such earlier date when such Obligation
(or any portion thereof) shall be or become due and payable, in whole or in
part, in accordance with the terms of this Agreement, whether by required
prepayment, declaration, or otherwise.
"Mine" means any gold or other metal mine or deposit, and related
plant sites, waste dumps, ore dumps, tailing disposal and ancillary and
beneficiation facilities which are required in connection with the operation
thereof, now or hereafter under development or operation by the Borrower or any
Subsidiary or in which the Borrower or any Subsidiary has an ownership interest
(including, for the avoidance of doubt, any interest pursuant to any lease or
joint venture agreement).
"Obligations" means all obligations of the Borrower with respect to
the repayment or performance of all obligations (monetary or otherwise) of the
Borrower arising under or in connection with this Agreement and each other Loan
Document.
"Organic Document" means, relative to any Person, its articles of
incorporation, its by-laws, and all shareholder agreements, voting trusts, and
similar arrangements applicable to any of its authorized shares of capital
stock or any similar document relating to any Person subsisting under the laws
of any jurisdiction other than any State of the United States.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, relative to any Bank, the percentage set forth
opposite its signature hereto or set forth in the Bank Assignment Agreement
pursuant to which such Bank became a party hereto, and, in each such case, as
such percentage may be adjusted from time to time pursuant to Bank Assignment
Agreement(s) executed by such Bank and its Assignee Bank(s).
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
-12-
18
"Prime Rate" means, at any date, the rate of interest then most
recently announced by The Chase Manhattan Bank, N.A. at New York, New York as
its prime rate.
"Process Agent" is defined in Section 10.14.
"Project Indebtedness" means Indebtedness incurred by the Borrower or
any Subsidiary, in its capacity as the owner of any new or existing Mine, and
incurred for the purpose of developing such Mine on terms and conditions such
that the recourse of the lenders thereunder is limited to the assets
constituting the relevant Mine (and, prior to the completion of construction of
the relevant Mine, to a guarantee in respect of such Indebtedness issued by the
Borrower).
"Qualifying Subordinated Indebtedness" means, at any time,
Indebtedness of the Borrower to any other Person which is subordinated to the
repayment of the Loans and other Obligations of the Borrower on terms, and
pursuant to documentation, in form and substance satisfactory to the Agent and
the Banks in their absolute discretion.
"Reference Bank" means Bank of America NT & SA.
"Regulatory Change" means, relative to any Bank, any change occurring
after the date hereof in any (or the adoption or phase-in after the date hereof
of any):
(a) United States Federal or state law or law of any
other jurisdiction applicable to such Bank; or
(b) regulation, interpretation, directive, or request
(whether or not having the force of law) applicable to such Bank of
any court or governmental authority charged with the interpretation or
administration of any law referred to in clause (a) or of any fiscal,
monetary, or other authority having jurisdiction over such Bank.
"Release" means a "release", as such term is defined in CERCLA.
"Required Banks" means, at any time, Banks having, in the aggregate, a
Percentage of more than sixty per cent (60%).
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended,
reformed or otherwise modified from time to time.
"Rothschild" is defined in the preamble.
"Royalties" is defined in Section 6.18.
"Subsidiary" means, with respect to any Person, any corporation of
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
-13-
19
occurrence of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person. Except as otherwise
indicated herein, references to Subsidiaries shall refer to Subsidiaries of the
Borrower.
"Tax Credit" is defined in Section 3.5.
"Tax Payment" is defined in Section 3.5.
"Taxes" is defined in Section 3.5.
"Total Commitment Amount" means, initially, the lesser of (a)
U.S.$24,000,000 and (b) the Fachinal Outstanding Principal Amount, and,
subsequently, as such amount may be reduced from time to time pursuant to
Section 2.4.
"United States" or "U.S." means the United States of America, its 50
States and the District of Columbia.
"U.S. Dollar" and the sign "US$" mean lawful money of the United
States.
"Welfare Plan" means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule, the
Borrowing Request, the Fachinal Transfer Agreement and each Interest Period
Selection Notice, Compliance Certificate, notice, and other communication
delivered from time to time in connection with this Agreement or any other Loan
Document.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified,
references in this Agreement and in each other Loan Document to any Article or
Section are references to such Article or Section of this Agreement or such
other Loan Document, as the case may be, and unless otherwise specified,
references in any Article, Section or definition to any clause are references
to such clause of such Article, Section or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 7.2.3) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with, generally accepted accounting principles in the
United States (in either case, "GAAP") applied on a basis consistent with the
preparation of the financial statements referred to in clause (a) of Section
6.4.
-14-
20
ARTICLE 2. COMMITMENTS AND FEES
SECTION 2.1. COMMITMENTS. Subject to the terms and conditions of
this Agreement (including Article 5), each Bank severally and for itself alone
agrees that it will from time to time make loans denominated in U.S. Dollars to
the Borrower in a principal amount outstanding at any one time not in excess of
such Bank's Percentage of the Total Commitment Amount (each such loan of each
Bank, individually, a "Loan"). From time to time on any Business Day occurring
during the period commencing on the Effective Date and ending on (but not
including) the Commitment Termination Date, each Bank will, subject to the
terms and conditions of this Agreement (including Article 5), make a Loan to
the Borrower equal to such Bank's Percentage of the aggregate principal amount
of the Loans requested by the Borrower in the relevant Borrowing Request to be
made on such day.
SECTION 2.2. BANKS NOT PERMITTED OR REQUIRED TO MAKE LOANS. No
Bank shall be permitted or required to make any Loan if, after giving effect
thereto:
(a) the aggregate outstanding principal amount of all
Loans of all Banks then outstanding would exceed the Total Commitment
Amount; and
(b) the aggregate outstanding principal amount of all
Loans of such Bank then outstanding would exceed such Bank's
Percentage of the Total Commitment Amount.
SECTION 2.3. NATURE OF COMMITMENTS. On the terms and subject to
the conditions hereof, the Borrower may from time to time borrow, prepay and
reborrow Loans.
SECTION 2.4. REDUCTION OF TOTAL COMMITMENT AMOUNT. The Total
Commitment Amount is subject to reduction from time to time pursuant to this
Section 2.4.
SECTION 2.4.1. OPTIONAL. The Borrower may, from time to time on any
Business Day which is the last day of any Interest Period with respect to any
Loans which might be required to be repaid pursuant to clause (c) of Section
3.3 as a result of any reduction to the Total Commitment Amount referred to
herein, voluntarily reduce the Total Commitment Amount in whole or in part;
provided, however, that (a) all such reductions shall require at least thirty
Business Days' prior notice from the Borrower to the Agent (and the Agent shall
promptly give notice thereof to the Banks), (b) all such reductions shall be
permanent, and (c) any partial reduction of the Total Commitment Amount shall
be in an integral multiple principal amount of US$1,000,000.
SECTION 2.4.2. MANDATORY. On each date set forth below the Total
Commitment Amount shall, without any further action, automatically and
permanently be reduced to the amount set forth opposite such date:
January 1, 1998 U.S.$21,000,000
January 1, 1999 U.S.$18,000,000
January 1, 2000 U.S.$15,000,000
January 1, 2001 U.S.$12,000,000.
-15-
21
SECTION 2.5. FEES. (a) The Borrower agrees to pay to the Agent,
for the account of each Bank, a facility fee in the amount of U.S.$12,500 for
each Bank and payable on the date of deemed making of the initial Loans.
(b) The Borrower agrees to pay to the Agent for the account of
each Bank, for the period (including any portion thereof when its Commitment is
suspended by reason of the Borrower's inability to satisfy any condition of
Article 5) commencing on the Effective Date and continuing through the final
Commitment Termination Date, a commitment fee at the rate of three eighths of
1% per annum on such Bank's Percentage of the sum of the average daily unused
portion of the Total Commitment Amount. Such commitment fees shall be payable
by the Borrower in arrears on March 31, June 30, September 30 and December 31
in each calendar year, commencing with the first such day following the
Effective Date, and on the Commitment Termination Date.
ARTICLE 3. LOANS; PROCEDURE AND PAYMENT
SECTION 3.1. PROCEDURE FOR MAKING OF LOANS. By delivering a
Borrowing Request to the Agent on or before 10:00 a.m., London time, on a
Business Day occurring during the period commencing on the Effective Date and
ending on (but not including) the Commitment Termination Date, the Borrower may
request, on not more than five, nor less than three, Business Days' notice
(counting the day on which such notice is given), that Loans be made to the
Borrower by all the Banks in (subject to the last paragraph of this Section) an
integral multiple principal amount of U.S.$1,000,000 or in the unused amount of
the Commitments. Upon receipt of such a Borrowing Request, the Agent shall
promptly (and in any event within one Business Day) notify each Bank of the
contents thereof. Any Borrowing Request once delivered shall not thereafter be
revocable by the Borrower. Subject to the terms and conditions of this
Agreement (including Article 5) the Loans shall be made on the Business Day
specified in the Borrowing Request.
Except in the case of the initial Loans, on the Business Day specified
in the relevant Borrowing Request for the making of the relevant Loans, each
Bank shall, on or before 11:00 a.m., New York City time, credit the account of
the Agent from time to time designated by the Agent at its Account Office with
an amount of U.S. Dollars equal to such Bank's Percentage of the aggregate
principal amount of the Loans requested in such Borrowing Request. To the
extent such amount of U.S. Dollars is received from the Banks (but subject to
Section 9.9), the Agent shall make such amount available to the Borrower by
transferring such amount to the Borrower's dollar account at the Account
Office of the Agent (or such other account as the Borrower may designate in the
relevant Borrowing Request, and the Agent may approve in its reasonable
discretion). No Bank's obligation to make any Loan shall be affected by
another Bank's failure to make any other Loan.
The initial Loans shall be made in an aggregate principal amount equal
to the Fachinal Outstanding Principal Amount. The Banks shall not be required
to advance funds to the Borrower representing the proceeds of the initial Loans
but such Loans shall be deemed to be made by the execution by each party
thereto of the Fachinal Transfer Agreement on or
-16-
22
prior to the Business Day specified in the Borrowing Request for the making of
the initial Loans and the implementation of all arrangements in connection
therewith referred to in Section 5.1.3. The initial Loans shall be made in
amounts identical to the loans outstanding under the Existing Loan Agreement on
the date of making of such Loans. In the event that the initial Loans are not
deemed to be advanced on or prior to January 31, 1997 this Agreement shall
immediately and without further action be of no further force and effect.
SECTION 3.2. RECORDS. Each Bank's Loans shall be evidenced by a
dollar loan account maintained by such Bank. The Borrower hereby irrevocably
authorizes each Bank to make (or cause to be made) appropriate account entries,
which account entries, if made, shall evidence inter alia the date of, the
principal amount of, any repayments or prepayments of, the interest rate on and
the Interest Period applicable to, the Loans made by such Bank pursuant hereto.
Any such account entries indicating the outstanding principal amount of such
Bank's Loans shall be prima facie evidence of the principal amount of such
Loans owing and unpaid, but the failure to make any such entry shall not limit
or otherwise affect the obligations of the Borrower hereunder to make payments
of the principal amount of, or interest on, such Loans made to it when due.
SECTION 3.3. PRINCIPAL PAYMENTS. The Borrower will make payment
in full of the unpaid principal amount of all Loans made to it on June 30,
2001. Prior thereto, the Borrower:
(a) may, from time to time on any Business Day which is
the last day of any Interest Period with respect to the Loans to be
prepaid, make a voluntary prepayment, in whole or in part, of the then
outstanding principal amount of any Loans; provided, however, that:
(i) the Borrower shall give the Agent not less
than five (5) Business Days' prior written notice (counting
the day on which such notice is given) of any such voluntary
prepayment (and the Agent shall promptly provide each Bank
with details thereof);
(ii) all such partial voluntary prepayments of
Loans shall be in an integral multiple principal amount of
US$1,000,000; and
(iii) all such partial voluntary prepayments shall
be applied against those portions of the Loans required to be
repaid pursuant to clause (b) in the order of maturity
thereof; and
(b) shall, on each date on which any reduction in the
Total Commitment Amount becomes effective pursuant to Section 2.4 or
otherwise make a mandatory repayment of the principal amount of all
Loans in a principal amount equal to the excess, if any, of (i) the
sum of the outstanding principal amount of all Loans on such date,
less (ii) the Total Commitment Amount as so reduced.
Each prepayment or repayment of Loans made pursuant to this Section
shall be without premium or penalty, except as may be required by Section 4.5.
Any prepayment or
-17-
23
repayment of the principal amount of any Loans shall include accrued interest
to the date of prepayment or repayment on the Principal Amount of such Loans
being prepaid or repaid. Any principal amount of any Loan prepaid or repaid
from time to time may be reborrowed.
SECTION 3.4. INTEREST PAYMENTS. The Borrower shall make payments
of interest on the outstanding principal amount of the Loans in accordance with
this Section.
SECTION 3.4.1. INTEREST RATE. The Borrower shall pay interest on
the principal amount of the Loans outstanding from time to time prior to and at
Maturity at a rate per annum during each Interest Period applicable thereto,
equal to the sum of (a) the LIBO Rate for such Interest Period, plus (b) the
Applicable Margin.
Each Loan shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such Loan.
SECTION 3.4.2. POST-MATURITY RATE. After the Maturity of all or any
portion of the principal amount of any Loan or after any other Obligations
shall have become due and payable, the Borrower shall pay interest (after as
well as before judgment) on:
(a) the principal amount of any Loan so matured at any
time when no circumstance of the nature referred to in Section 4.3
with respect to such Loan shall have occurred and be continuing, at a
rate per annum equal to the sum of (i) the LIBO Rate for each Interest
Period selected by the Agent from time to time pursuant to Section
4.1, plus (ii) the Applicable Margin, plus (iii) two per cent (2%);
and
(b) all other Obligations (including with respect to the
principal amount of any Loan at any time when a circumstance of the
nature referred to in Section 4.3 with respect to such Loan shall have
occurred and be continuing so matured) at a rate per annum equal to
the sum of the Prime Rate from time to time in effect plus two per
cent (2%).
SECTION 3.4.3. PAYMENT DATES. (a) Interest accrued on each Loan
shall be payable, without duplication, on:
(i) the last day of each Interest Period with
respect to such Loan (and, in addition to such day, if such
Interest Period shall exceed three months, on each date which
is the last day of each successive three monthly period
occurring during such Interest Period);
(ii) the Maturity of such Loan; and
(iii) with respect to any portion of any Loan
repaid or prepaid pursuant to Section 3.3, the date of such
repayment or prepayment, as the case may be.
-18-
24
In addition, and as set forth in the Fachinal Transfer Agreement with
respect to the payment by the Borrower of the Fachinal Outstanding Amount, on
the first payment date for interest in respect of each of the initial Loans,
the Borrower shall pay an amount equal to interest in respect of each loan
corresponding to such Loans under the Existing Loan Agreement which was accrued
and unpaid as at the date of making of the initial Loans.
(b) Interest accrued on each Loan after the Maturity
thereof and interest on other overdue Obligations, shall be payable
upon demand.
SECTION 3.4.4. RATE DETERMINATIONS. All determinations by the Agent
of the rate of interest applicable to any Loan or other Obligation shall be
conclusive absent manifest error.
SECTION 3.5. TAXES. All payments by the Borrower under this
Agreement or any other Loan Document shall be paid without deduction or
withholding for or on account of any present or future taxes, levies, imposts,
deductions, charges, withholdings, fees, duties, or other charges of any nature
whatsoever required to be deducted or withheld from such payments by any United
States Federal, state or local taxing authority or the taxing authority of any
other jurisdiction, excluding taxes imposed on, or measured by, any Bank
Party's net income or receipts and franchise taxes imposed on any Bank Party,
by the United States or any jurisdiction under the laws of which such Bank
Party is organized or any political subdivision thereof (such non-excluded
items hereinafter referred to as "Taxes"). In the event that such deduction or
withholding is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Borrower shall:
(a) promptly notify the Agent of such requirement;
(b) pay directly to the appropriate authority the full
amount required to be so deducted or withheld before penalties attach
thereto or interest accrues thereon;
(c) promptly forward to the Agent an official receipt or
other documentation reasonably satisfactory to the Agent evidencing
such payment to such authority; and
(d) pay to the Agent for the account of each affected
Bank Party such additional amount or amounts as is necessary to ensure
that the net amount actually received by such Bank Party will equal
the full amount such Bank Party would have received had no such
deduction or withholding been required.
Moreover, if any Taxes are directly asserted against any Bank Party with
respect to any payment received by such Bank Party hereunder, such Bank Party
may pay such Taxes, and the Borrower will promptly pay such additional amounts
(including any penalties, interest or expenses) as is necessary in order that
the net amount received by such Person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
Bank Party would have received had not such Taxes been asserted.
-19-
25
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for the account of the
relevant Bank Party, the required receipts or other required documentary
evidence, the Borrower shall indemnify such Bank Party for any incremental
Taxes, interest or penalties that may become payable by any Bank as a result of
any such failure. For purposes of this Section, a distribution hereunder by
any Bank Party to or for the account of any other Bank Party shall be deemed a
payment by the Borrower.
If the Borrower pays any additional amount under clause (d) (a "Tax
Payment") and any Bank Party effectively obtains a refund of tax or credit
against tax by reason of the Tax Payment (a "Tax Credit") and such Bank Party
identifies the Tax Credit as being attributable to the Tax Payment, then such
Bank Party after actual receipt of such Tax Credit shall promptly reimburse the
Borrower for such amount as such Bank Party shall determine in its sole
discretion to be the proportion of the Tax Credit that will leave such Bank
Party (after that reimbursement) in no better or worse position than it would
have been in if the Tax Payment had not been required; provided, however, that
no Bank Party will be required to make any reimbursement hereunder to the
extent it reasonably believes the making of such reimbursement would cause it
to lose the benefit of the Tax Credit. Each Bank Party shall have absolute
discretion as to whether to claim any Tax Credit, and if it does so claim, the
extent, order and manner in which it does so and the manner in which it
allocates Tax Credits to its various assets. No Bank Party shall be obliged to
disclose information regarding its tax affairs or computations to the Borrower.
Upon the request of the Borrower or the Agent, each Bank Party that is
organized under the laws of a jurisdiction other than the United States shall
execute and deliver to the Borrower and the Agent, on or about the first
scheduled payment date of any principal amount of the Loans in each Fiscal
Year, one or more (as the Borrower or the Agent may reasonably request) United
States Internal Revenue Service Forms 4224 or Forms 1001 or such other forms or
documents (or successor forms or documents), appropriately completed, as may be
applicable to establish the extent, if any, to which a payment to such Bank
Party is exempt from withholding or deduction of Taxes; provided, however, that
no Bank Party shall be under any obligation to execute and deliver any such
form if, in the opinion of such Bank Party, completion of any such form could
result in an adverse consequence with respect to the business or tax position
of such Bank Party.
SECTION 3.6. PAYMENTS, COMPUTATIONS, ETC. All payments by the
Borrower pursuant to this Agreement or any other Loan Document, whether in
respect of the principal amount of any Loan, interest thereon, or any other
amounts, shall be made by the Borrower to the Agent for the pro rata benefit of
the Bank Parties entitled to receive such payment, by delivery of U.S. Dollars
in immediately available funds to an account of the Agent at the Agent's
Account Office, which account shall be designated from time to time by notice
to the Borrower from the Agent. All such payments shall be made, without
setoff, deduction, or counterclaim, not later than 11:00 a.m., New York City
time. Any payments received hereunder after the time and date specified in
this Section shall be deemed to have been received by the Agent on the next
following Business Day. With respect to payments received by the Agent
hereunder, the Agent shall promptly remit to each Bank Party its
-20-
26
share, if any, of such payments to an account designated by such Bank Party to
the Agent from time to time and maintained at its Account Office.
All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days.
Except as otherwise required as a result of the application of clause
(d) of the definition of the term "Interest Period", whenever any payment to be
made shall otherwise be due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in computing interest and fees, if any, in connection with
such payment.
SECTION 3.7. PRORATION OF PAYMENTS. If any Bank Party shall
obtain any payment or other recovery (whether voluntary, involuntary, by
application of setoff, or otherwise) on account of any Obligation (other than
pursuant to the terms of Section 3.5, 4.4, 4.5 or 4.6) in excess of its pro
rata share of payments then or therewith obtained by all relevant Bank Parties
in connection with such Obligation, such Bank Parties shall purchase from the
other Bank Parties such participation in such Obligation held by them as shall
be necessary to cause such purchasing Bank Party to share the excess payment or
other recovery ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Bank Party, the purchase shall be rescinded and each Bank Party
which has sold a participation to the purchasing Bank shall repay to the
purchasing Bank Party the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Bank Party's ratable share
(according to the proportion of
(a) the amount of such selling Bank Party's required
repayment to the purchasing Bank Party
to
(b) the total amount so recovered from the purchasing
Bank Party)
of any interest or other amount paid or payable by the purchasing Bank Party
in respect of the total amount so recovered. Each Obligor agrees that any Bank
Party so purchasing a participation from another Bank Party pursuant to this
Section may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 3.8) with respect to such participation
as fully as if such Bank Party were the direct creditor of such Obligor in the
amount of such participation. If under any applicable bankruptcy, insolvency
or other similar law, any Bank Party receives a secured claim in lieu of a
setoff to which this Section applies, such Bank Party shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Bank Parties entitled under this Section to
share in the benefits of any recovery on such secured claim.
SECTION 3.8. SETOFF. In addition to and not in limitation of any
rights of any Bank Party under applicable law, each Bank Party (or any branch
thereof) shall, upon the
-21-
27
occurrence of any Default described in Section 8.1.9 or any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations, but not to the exclusion of the other rights any Bank Party may
have) each Obligor hereby grants to each Bank Party a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of
such Obligor then or thereafter maintained with the Agent or such Bank, as the
case may be, in whatever currency or commodity (including gold, silver and
other precious metals) and agrees that for purposes of such application, such
balances, credits, deposits, accounts or moneys of such Obligor may be used to
purchase any necessary currency on the date, and to the extent, of the
application; provided, however, that any such appropriation and application
shall be subject to the provisions of Section 3.7. The rights of each Bank
Party under this Section are in addition to any other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Bank Party may have.
ARTICLE 4. INTEREST PERIODS AND FUNDING, ETC
SECTION 4.1. INTEREST PERIODS. Subject to the conditions set
forth in the definition of the term "Interest Period", the Borrower shall
designate the duration of the initial Interest Period for the Loans in the
Borrowing Request. Thereafter, the Borrower shall select the duration of the
succeeding Interest Periods for the Loans pursuant to Interest Period Selection
Notices delivered to the Agent (which will promptly provide details thereof to
each Bank) on or before 10:00 a.m., London time, from time to time not less
than three Business Days prior to the end of any current Interest Period
(counting the day on which such notice is given); provided, however, that if,
with respect to the Loans:
(a) the Borrower fails to deliver in a timely manner an
Interest Period Selection Notice to the Agent, the Borrower shall be
deemed to have elected an Interest Period having a duration equal to
the lesser of one month or the number of days until the next date on
which any principal amount of any Loan is scheduled to be repaid
pursuant to clause (b) of Section 3.3; or
(b) all or any portion of the principal amount thereof
has become due and payable, whether by acceleration pursuant to
Section 8.2 or 8.3 or otherwise, the Agent shall thereafter select
such Interest Period for such overdue amount as it shall, in its
absolute discretion (after consultation with the Banks), deem
appropriate.
On or before 10:00 a.m. (London time) on the Business Day prior to the
date of the commencement of any Interest Period the Agent shall notify the
Borrower and each Bank of the LIBO Rate with respect to the Loans to be
outstanding during such Interest Period.
SECTION 4.2. FUNDING. Each Bank may, if it so elects, fulfil its
obligation to make or maintain any portion of the principal amount of any Loan
by causing a foreign branch, Affiliate or international banking facility of
such Bank to make such Loan; provided, however, that in such event such Loan
shall be deemed to have been made by such Bank, and the obligation of the
Borrower to repay such Loan, and pay interest thereon, shall nevertheless be to
such Bank and shall be deemed to be held by it, to the extent of such
-22-
28
Loan, for the account of such foreign branch, Affiliate or international
banking facility. In addition, the Borrower hereby consents and agrees that,
for purposes of any determination to be made for purposes of Sections 4.3, 4.4,
4.5 or 4.7, it shall be conclusively assumed that each Bank elected to fund its
Loans by obtaining deposits in the London interbank market.
SECTION 4.3. U.S. DOLLARS UNAVAILABLE. If the Agent shall have
determined or shall have been notified by any Bank (an "Affected Bank") that:
(a) U.S. Dollar certificates of deposit or U.S. Dollar
deposits, as the case may be, in the relevant amount and for the
relevant Interest Period are not available to such Bank in the London
interbank market; or
(b) by reason of circumstances affecting such Bank in the
London interbank market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to its Loans,
then the Agent shall promptly give telephonic notice of such determination
confirmed in writing to the Borrower (which determination shall, in the absence
of manifest error, be conclusive and binding on the Borrower), and the
obligations of the Affected Bank to make or maintain its Loans shall, upon such
notification, forthwith terminate and the principal amount of, and interest on,
the then outstanding Loans made by such Affected Bank shall be immediately
repaid in full.
If circumstances subsequently change so that any Affected Bank shall
no longer be so affected, the Agent shall promptly give telephonic notice
thereof confirmed in writing to the Borrower and the Banks, and the obligations
of such Affected Bank to make or maintain its Loans shall be reinstated, and
the Agent shall, by notice to the Borrower and each Bank, declare that such
obligations have been so reinstated.
SECTION 4.4. INCREASED COSTS, ETC. Subject to the terms and
conditions of this Section, the Borrower agrees to reimburse each Bank Party
for any increase in the cost to such Bank Party of making or maintaining (or of
its obligation to make or maintain) any Loan and for any reduction in the
amount of any sum receivable by such Bank hereunder in respect of making or
maintaining any portion of the principal amount of its Loan from time to time
by reason of:
(a) any reserve, special deposit, or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, such Bank Party, under or pursuant to any Regulatory
Change (including any such Regulatory Change imposed under F.R.S.
Board Regulation D); or
(b) without duplication of any costs, expenses or other
amounts covered pursuant to Section 3.5, any Regulatory Change which
shall subject such Bank Party to any tax, levy, impost, charge, fee,
duty, deduction, or withholding of any kind whatsoever, or to any
change in the taxation of any such Loan and the interest thereon
(other than any Regulatory Change which affects the taxation of net
income).
-23-
29
In any such event, such Bank shall promptly notify the Agent and the Borrower
thereof stating the reasons therefor and the additional amount required fully
to compensate such Bank Party for such increased cost or reduced amount.
Within thirty days of its receipt of such notice from any Bank relating to the
Loans maintained by it or to its Commitment, the Borrower may elect by notice
to the Agent and such Bank to terminate the obligations of such Bank hereunder
and, upon any such election, the Commitment of such Bank shall terminate or, as
the case may be, the principal amount of and interest on the Loans then
maintained by such Bank shall be immediately paid in full. In the event that
the Borrower shall not have elected to terminate the Commitment of such Bank as
aforesaid then the additional amounts referred to in the notice delivered
pursuant to the first sentence of this paragraph shall be payable by the
Borrower to the Agent for the account of such Bank on the date which is thirty
five days after its receipt of such notice (and, if such additional amounts
shall continue to be incurred by such Bank, at the end of each consecutive
monthly period occurring thereafter with respect to any such additional amount
incurred during such period). Any notice as to any such increased cost or
reduced amount or any change therein shall include calculations thereof in
reasonable detail and shall, in the absence of manifest error, be conclusive
and binding on the Borrower.
SECTION 4.5. FUNDING LOSSES. In the event any Bank shall incur
any loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of any U.S. Dollar deposits acquired by such Bank
to make, continue, or maintain any portion of the principal amount of any Loan)
as a result of:
(a) any repayment or prepayment of the principal amount
of any Loan on, in either such case, a date other than the scheduled
last day of the Interest Period applicable thereto, whether pursuant
to Section 3.3 or otherwise; or
(b) any action of the Borrower resulting in any Loans not
being made or maintained in accordance with the Borrowing Request or
the Interest Period Selection Notice, as the case may be, given
therefor;
then, upon the written notice of such Bank to the Borrower (with a copy to the
Agent), the Borrower shall pay to the Agent for the account of such Bank such
amount as will (in the reasonable determination of such Bank) reimburse such
Bank for such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower.
SECTION 4.6. INCREASED CAPITAL COSTS. In the event that any Bank
Party shall have determined that any Regulatory Change regarding capital
adequacy affecting such Bank Party or any corporation controlling such Bank
Party does or shall have the effect of reducing the rate of return on such Bank
Party's or such corporation's capital as a consequence of its Commitments or
obligations hereunder to a level below that which such Bank Party or such
corporation would have achieved but for such Regulatory Change (taking into
consideration such Bank Party's or such corporation's policies with respect to
capital adequacy), then, from time to time, after submission by such Bank Party
to the Borrower (with a copy to the Agent) of a written request therefor, the
Borrower shall, subject to the terms and conditions of the final paragraph of
this Section, pay to the Agent for the account
-24-
30
of such Bank Party such additional amount or amounts as will (without
duplication) compensate such Bank Party or such corporation for:
(a) such reduction in such rate of return; or
(b) the increased cost to such Bank Party or such
corporation as a result of increasing its capital in order to
compensate it in connection with such reduction in such rate of
return.
In determining such additional amounts, each Bank Party may use any
method of averaging and attribution that it (in its reasonable discretion)
shall deem applicable. A statement of such Bank Party as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be final and conclusive and
binding on all the parties hereto. Each Bank Party shall notify the Borrower
of the occurrence of any such Regulatory Change applicable to such Bank Party
and no amount shall be payable to any Bank Party hereunder which is calculated
by reference to a period which has elapsed prior to the giving of such notice.
Within thirty days of its receipt of any written request from any Bank
for any payment under this Section with respect to the Loans maintained by it
or to its Commitment the Borrower may elect by notice to the Agent and such
Bank to terminate the obligations of such Bank hereunder, and upon any such
election, the principal amount of and interest on the Loans then maintained by
such Bank shall be immediately paid in full. In the event that the Borrower
shall not have elected to terminate the obligations of such Bank hereunder as
aforesaid then the additional amounts referred to in the written request for
payment thereof delivered pursuant to this Section shall be payable as set
forth above on the date which is thirty five days after the Borrower's receipt
of such notice.
SECTION 4.7. ILLEGALITY. If, as the result of any Regulatory
Change, any Bank shall determine (which determination, in the absence of
manifest error, shall be conclusive and binding on the Borrower) that it is
unlawful for such Bank to make or maintain its Loans, the obligations of such
Bank to make or maintain any portion of the principal amount of its Loan shall,
upon such determination (and telephonic notice thereof confirmed in writing to
the Agent and the Borrower), forthwith terminate, and the Agent shall, by
notice to the Borrower and each Bank, declare that the relevant such
obligations have so terminated, and, in the case of any such illegality
relating to such Bank's obligations to make and maintain its Loan hereunder,
the principal amount of and interest on the Loans then maintained by such Bank
shall be repaid in full not later than the tenth day following the day on which
the Agent shall have given such notice or such earlier date as may be required
by the applicable law.
ARTICLE 5. CONDITIONS PRECEDENT TO MAKING OF LOANS
SECTION 5.1. INITIAL LOANS. The obligations of the Banks to make
available the initial Loans shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Article 5.
-25-
31
SECTION 5.1.1. RESOLUTIONS, ETC. The Agent shall have received:
(a) from the Borrower, a certificate, dated the date of
the making of the initial Loans, of its Secretary or an Assistant
Secretary as to:
(i) resolutions of its Board of Directors then in
full force and effect authorizing the execution, delivery, and
performance of this Agreement and each other Loan Document to
be executed by it; and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to this Agreement and
each other Loan Document to be executed by it,
upon which certificates each Bank may conclusively rely until it shall
have received a further certificate of the Secretary or an Assistant
Secretary of the Borrower cancelling or amending such prior
certificate; and
(b) such other documents (certified if requested) as the
Agent may reasonably request with respect to any Organic Document,
Contractual Obligation or Approval.
SECTION 5.1.2. SOLVENCY CERTIFICATE. The Agent shall have received
certificates, dated each of the Effective Date and the date of the making of
the initial Loans in the form of Exhibit E attached hereto, from a senior
financial Authorized Officer of the Borrower.
SECTION 5.1.3. FACHINAL TRANSFER AGREEMENT. The Agent shall have
received counterparts of the Fachinal Transfer Agreement duly executed by each
party thereto together with such documentary or other evidence as the Agent
shall require in connection with the implementation of the arrangements
contemplated by the Fachinal Transfer Agreement (including evidence relating to
the release of all obligations of the Bank Parties pursuant to the Existing
Loan Agreement).
SECTION 5.1.4. OPINIONS OF COUNSEL. The Agent shall have received
opinions, dated the date of the making of the initial Loans and addressed to
the Agent and all the Banks, from:
(a) Xxxxxxx X. Xxxx, General Counsel to the Borrower,
substantially in the form of Exhibit F attached hereto; and
(b) Xxxxx, Xxxxx & Xxxxx, counsel to the Agent, in form
satisfactory to the Agent.
SECTION 5.1.5. CLOSING FEES, EXPENSES, ETC. The Agent shall have
received (including, to the extent necessary, from the proceeds of the initial
Loans) for its own account, or for the account of each Bank, as the case may
be, all fees due and payable on or prior to the date of the making of the
initial Loans pursuant to Section 2.5 and all fees and expenses payable
pursuant to Section 9.8 or 10.3 to the extent then invoiced.
-26-
32
SECTION 5.2. ALL LOANS. The obligations of the Banks to make
available any Loans (including the initial Loans) shall be subject to the
satisfaction of each of the additional conditions precedent set forth in this
Section.
SECTION 5.2.1. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. The
representations and warranties set forth in Article 6 shall have been true and
correct as of the date initially made, and both before and after the making of
the Loans (but, if any Default of the nature referred to in Section 8.1.5 shall
have occurred with respect to any other Indebtedness, without giving effect to
the application, directly or indirectly, of the proceeds of the Loans to such
other Indebtedness):
(a) such representations and warranties (excluding
Section 6.6) shall be true and correct with the same effect as if then
made (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct as of
such earlier date);
(b) no Default shall have then occurred and be
continuing; and
(c) no Default (as defined in the Existing Loan
Agreement) shall have occurred and be continuing.
SECTION 5.2.2. ABSENCE OF LITIGATION, ETC. Except as disclosed in
Item 2 ("Litigation") of the Disclosure Schedule:
(a) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be pending against or,
to the knowledge of the Borrower, threatened against, the Borrower or
any Subsidiary which would, if adversely determined, materially
adversely affect the financial condition, operations, assets,
business, properties or prospects of the Borrower and its
Subsidiaries, or which purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document; and
(b) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental investigation or
proceeding so disclosed which would, if adversely determined,
materially adversely affect the financial condition, operations,
assets, business, properties or prospects of the Borrower and its
Subsidiaries.
SECTION 5.2.3. BORROWING REQUEST. The Agent shall have received the
Borrowing Request for the Loans. Each of the delivery of the Borrowing Request
and the acceptance by the Borrower of the proceeds of the Loans shall
constitute a representation and warranty by the Borrower that on the date of
the making of the Loans (both immediately before and after giving effect to the
making of the Loans and the application of the proceeds thereof) the statements
made in Sections 5.2.1 and 5.2.2 are true and correct.
SECTION 5.2.4. SATISFACTORY LEGAL FORM. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any Subsidiary
shall be satisfactory in
-27-
33
form and substance to the Agent and its counsel; the Agent and its counsel
shall have received all information, and such counterpart originals or such
certified or other copies of such Instruments, as the Agent or its counsel may
reasonably request; and all legal matters incident to the transactions
contemplated by this Agreement shall be satisfactory to counsel to the Agent.
SECTION 5.3. WAIVER OF CONDITIONS. The conditions specified in
the foregoing provisions of this Article 5 are inserted solely for the benefit
of the Bank Parties.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES
In order to induce the Bank Parties to enter into this Agreement and
to make Loans hereunder, the Borrower represents and warrants unto each Bank
Party as set forth in this Article 6.
SECTION 6.1. ORGANIZATION, POWER, AUTHORITY, ETC. The Borrower
and each Subsidiary is a corporation validly organized and existing and in good
standing under the laws of the state of its incorporation, is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction where the nature of its business makes such qualification
necessary, and has full power and authority, and holds all requisite Approvals,
to own and hold under lease its property and to conduct its business
substantially as currently conducted by it. The Borrower has full power and
authority to enter into and perform its obligations under this Agreement and
the other Loan Documents executed or to be executed by it and to obtain the
Loans hereunder.
SECTION 6.2. DUE AUTHORIZATION. The execution and delivery by the
Borrower of this Agreement and each other Loan Document executed or to be
executed by it and the performance by the Borrower of its Obligations hereunder
and thereunder, and the receipt of the proceeds of the Loans hereunder by the
Borrower have been or, as the case may be, will be duly authorized by all
necessary corporate action, do not require any Approval, do not and will not
conflict with, result in any violation of, or constitute any default under, any
provision of any Organic Document or Contractual Obligation of the Borrower, or
any Approval, law or governmental regulation or court decree or order
applicable to the Borrower, and will not result in or require the creation or
imposition of any Lien on any property of the Borrower pursuant to the
provisions of any Contractual Obligation (other than pursuant to this
Agreement).
SECTION 6.3. VALIDITY, ETC. This Agreement is the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, and each other Loan Document executed or to be
executed by the Borrower will, on the due execution by each party thereto and
delivery thereof, constitute the legal, valid and binding obligation of such
Borrower enforceable against the Borrower in accordance with its terms.
SECTION 6.4. FINANCIAL INFORMATION. All balance sheets, all
statements of operations, changes in stockholders' equity and cash flow, and
all other financial information of the Borrower and any Subsidiary which have
been or shall hereafter be furnished by or
-28-
34
on behalf of the Borrower to the Agent for the purposes of or in connection
with this Agreement or any transaction contemplated hereby, including:
(a) the consolidated balance sheet at December 31, 1995,
and the related consolidated statements of operations, changes in
stockholders' equity and cash flow for the Fiscal Year then ended of
the Borrower and its Subsidiaries, certified by Ernst & Young LLP; and
(b) the consolidated balance sheet at September 30, 1996,
and the consolidated statements of operations and cash flow for the
Fiscal Quarter then ended of the Borrower and its Subsidiaries,
certified by the principal accounting or financial Authorized Officer
of the Borrower,
(together with, in each such case, any notes or footnotes thereto) have been or
will be prepared in accordance with GAAP consistently applied throughout the
periods involved (except as disclosed therein) and do or will present fairly
the consolidated financial position of the corporations covered thereby (on a
consolidated basis) as at the dates thereof and the results of their operations
for the periods then ended. Neither of the Borrower nor any Subsidiary has on
the date hereof any material contingent liability or liabilities for taxes,
long-term leases or unusual forward or long-term commitments which are not
reflected in the financial statements described in clauses (a) and (b) or in
the notes thereto.
Since December 31, 1995, and except as disclosed in any public filings
made by the Borrower with the Securities and Exchange Commission and copied to
the Banks prior to the Effective Date, there has been no material adverse
change in the financial condition, operations, assets, business or properties
of the Borrower and its Subsidiaries.
SECTION 6.5. ABSENCE OF DEFAULT. Neither the Borrower nor any
Subsidiary is in default in the payment of (or in the performance of any
material obligation applicable to) any Indebtedness having a principal amount,
individually or in the aggregate for the Borrower and Subsidiaries, in excess
of US$5,000,000 or in material default under any law or governmental regulation
or court decree or order or under any material term or condition upon which any
Approval has been granted.
SECTION 6.6. LITIGATION, ETC. Except as disclosed in Item 2
("Litigation") of the Disclosure Schedule, there is no pending or, to the
knowledge of the Borrower, threatened litigation, arbitration, labor
controversy or governmental investigation or proceeding against the Borrower or
any Subsidiary or to which any of the properties, assets or revenues of any
thereof is subject which, if adversely determined, would materially adversely
affect the financial condition, operations, assets, business, properties or
prospects of the Borrower and its Subsidiaries, or which purports to affect the
legality, validity or enforceability of this Agreement or any other Loan
Document.
SECTION 6.7. REGULATION G, T, U, AND X. Neither the Borrower nor
any Subsidiary is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
margin stock, and less than 25% of the assets of the Borrower consists of
margin stock. The use of the proceeds of all Loans
-29-
35
made hereunder will comply in all respects with F.R.S. Board Regulations G, T,
U and X. Terms for which meanings are provided in F.R.S. Board Regulations G,
T, U or X or any regulations substituted therefor, as from time to time in
effect, are used in this Section with such meanings.
SECTION 6.8. GOVERNMENT APPROVAL, REGULATION, ETC. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person is required for
the due execution, delivery or performance by the Borrower of this Agreement or
any other Loan Document. Neither the Borrower nor any Subsidiary is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
SECTION 6.9. BURDENSOME AGREEMENTS. Neither the Borrower nor any
Subsidiary is a party or subject to any Contractual Obligation or Organic
Document which has a material adverse effect upon the financial condition,
operations, assets, business, properties or prospects of the Borrower and its
Subsidiaries.
SECTION 6.10. TAXES. The Borrower and each Subsidiary has filed
all tax returns (including all property tax returns and other similar tax
returns applicable to gold or silver deposits and mines) and reports required
by law to have been filed by it and has paid all taxes and governmental charges
thereby shown to be owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 6.11. PENSION AND WELFARE PLANS. During the twelve
consecutive month period prior to the date of the execution and delivery of
this Agreement and prior to the date of the making of the Loans hereunder, no
steps have been taken to terminate any Pension Plan sufficient to give rise to
a Lien of any nature, and no contribution failure has occurred with respect to
any Pension Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA. No condition exists or event or transaction has occurred with respect
to any Pension Plan which might result in the incurrence by the Borrower or any
member of any Controlled Group of any material liability, fine or penalty.
Except as disclosed in Item 3 ("Employee Benefit Plans") of the Disclosure
Schedule, neither the Borrower nor any member of any Controlled Group has any
contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in Part
6 of Title I of ERISA.
SECTION 6.12. SUBSIDIARIES. The Borrower has no Subsidiaries,
except those Subsidiaries which are identified in Item 4 ("Subsidiaries") of
the Disclosure Schedule.
SECTION 6.13. PATENTS, TRADEMARKS, ETC. The Borrower and each
Subsidiary owns and possesses all such patents, patent rights, trademarks,
trademark rights, trade names, trade name rights, service marks, service xxxx
rights and copyrights as the Borrower or such Subsidiary considers necessary
for the conduct of its business as now conducted
-30-
36
without, individually or in the aggregate, any infringement upon rights of
other Persons which might have a material adverse affect upon the financial
condition, operations, assets, business, properties or prospects of the
Borrower and its Subsidiaries, and there is no individual patent or patent
license the loss of which would have such a material adverse affect, except as
may be disclosed in Item 5 ("Material Patents and Trademarks") of the
Disclosure Schedule.
SECTION 6.14. APPROVALS, ETC. The Borrower and each Subsidiary has
entered into or obtained, and maintained in full force and effect, all
Instruments and Approvals required or advisable in connection with its
business, except for Instruments and Approvals the lack of which does not, in
the aggregate, have a material adverse effect upon the financial condition,
operations, assets, business, properties or prospects of the Borrower and its
Subsidiaries. There are no defaults under such Instruments or Approvals which,
taken in the aggregate, might have such a material adverse effect.
SECTION 6.15. OWNERSHIP OF ASSETS. The Borrower and each
Subsidiary has sufficient title to each of its assets in order to conduct its
respective business as presently conducted and as contemplated to be conducted;
all of the leases, subleases, licenses, claims, rights, concessions and
agreements material to the business of the Borrower or any Subsidiary, and
under which the Borrower or any Subsidiary holds any properties, are in full
force and effect and neither the Borrower nor any Subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Borrower or any Subsidiary under any such lease, sublease,
license, claim, concession or agreement, or affecting or questioning the rights
of the Borrower or such Subsidiary to the continued possession of the premises
under any such lease, sublease, license, claim, concession or agreement.
SECTION 6.16. ACCURACY OF INFORMATION. All factual information
heretofore or hereafter furnished by or on behalf of the Borrower to any Bank
Party pursuant to this Agreement is or, as the case may be, will be, true and
accurate in every material respect (subject, in the case of any forecast, to
any assumption referred to therein) on the date as of which such information is
dated or certified, and such information is not, or, as the case may be, shall
not be incomplete on such date or dates by omitting to state any material fact
necessary to make such information not misleading.
SECTION 6.17. ENVIRONMENTAL WARRANTIES. Except (in the case of
clauses (b), (e) and (i) only) as set forth in Item 6 ("Environmental Matters")
or (in the case of clause (b) only) as set forth in Item 2 ("Litigation") of
the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any Subsidiary have
been, and continue to be, owned or leased by the Borrower or such
Subsidiary in material compliance with all Environmental Laws;
(b) there are no pending or threatened:
-31-
37
(i) claims, complaints, notices or requests for
information received by the Borrower or any Subsidiary with
respect to any alleged violation of any Environmental Law; or
(ii) complaints, notices or inquiries to the
Borrower or any Subsidiary regarding potential liability under
any Environmental Law;
(c) there have been no Releases of Hazardous Materials
(or any similar occurrence in any jurisdiction other than the U.S.)
at, on or under any property or facilities now or previously owned or
leased by the Borrower or any Subsidiary (or in any other location
with respect to Hazardous Materials generated by the Borrower or any
Subsidiary) that, singly or in the aggregate, have, or may reasonably
be expected to have, a material adverse effect on the financial
condition, operations, assets, business, properties or prospects of
the Borrower and its Subsidiaries;
(d) the Borrower and each Subsidiary has been issued and
is in material compliance, with all permits, certificates, approvals,
licenses and other authorizations relating to environmental matters
which are necessary or desirable for its businesses (after taking into
account whether or not any such permit, etc. is required in connection
with any property or business owned by the Borrower or any Subsidiary
and which has yet to be placed into operation);
(e) no property now or previously owned or leased by the
Borrower or any Subsidiary is listed or proposed for listing (with
respect to owned property only) on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar list of sites
maintained by any state or foreign jurisdiction requiring
investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Borrower or any Subsidiary
that, singly or in the aggregate, have, or may reasonably be expected
to have, a material adverse effect on the financial condition,
operations, assets, business, properties or prospects of the Borrower
and its Subsidiaries;
(g) neither the Borrower nor any Subsidiary has directly
or indirectly disposed or directly or indirectly arranged for the
disposal of any Hazardous Material to any location which is listed or
which has been the subject of publication as being proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar list maintained by any state or foreign
jurisdiction or which is the subject of U.S. or other Federal, state,
provincial or local enforcement actions or other investigations which
may lead to material claims against the Borrower or Subsidiary for any
remedial work, damage to natural resources or personal injury,
including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable
asbestos present at any property now or previously owned or leased by
the Borrower or any Subsidiary that,
-32-
38
singly or in the aggregate, have, or may reasonably be expected to
have, a material adverse effect on the financial condition,
operations, assets, business, properties or prospects of the Borrower
and its Subsidiaries; and
(i) no conditions exist at, on or under any property now
or previously owned or leased by the Borrower or any Subsidiary which,
with the passage of time, or the giving of notice or both, would give
rise to any liability under any Environmental Law and which could or
might have a materially adverse effect on the financial condition,
operation, assets, business or properties of the Borrower and its
Subsidiaries.
Each Bank Party shall be entitled to rely upon the Borrower's
representations and warranties contained in this Section notwithstanding any
independent investigations by any Bank Party or any of their respective
consultants. The Borrower shall take reasonable actions to determine for
itself, and to remain aware of, the environmental condition of any property now
or previously owned or leased by it or any Subsidiary and shall have no right
to rely upon any environmental investigations or findings made by any Bank
Party or any of their respective consultants.
SECTION 6.18. ROYALTIES. The operations of the Borrower and its
Subsidiaries are not subject to any material royalties, net profit interests or
similar rights (including delay rentals, advance royalties, minimum royalties,
bonuses and other forms of compensation given to landowners in the ordinary
course of business of the metal mining industry) (collectively, "Royalties")
other than as set forth in the agreements described in Item 7 ("Material
Royalty Agreements") of the Disclosure Schedule.
SECTION 6.19. PARI PASSU. All Obligations, including the
Obligations to pay principal of and interest on the Loans, will rank at least
pari passu with all Indebtedness (other than, to the extent of any Lien
permitted to be granted pursuant to Section 7.2.3, Indebtedness secured by such
Lien) of each Obligor.
ARTICLE 7. COVENANTS
SECTION 7.1. CERTAIN AFFIRMATIVE COVENANTS. The Borrower agrees
with each Bank Party that, until all Commitments have terminated and all
Obligations have been paid and performed in full, the Borrower will perform its
obligations set forth in this Section 7.1.
SECTION 7.1.1. FINANCIAL INFORMATION, ETC. The Borrower will
furnish, or will cause to be furnished, to the Agent copies of the following
financial statements, reports and information:
(a) promptly when available, and in any event not less
than ninety (90) days after the close of each Fiscal Year, a
consolidated balance sheet at the close of such Fiscal Year, and
related consolidated statements of operations, changes in
stockholders' equity and cash flow for such Fiscal Year, of the
Borrower and its Subsidiaries (with comparable information at the
close of and for the prior Fiscal
-33-
39
Year), certified without Impermissible Qualification by Ernst & Young
LLP or other independent public accountants acceptable to the Agent
and the Required Banks, together with a certificate from such
accountants containing a computation of, and showing compliance with,
each of the financial ratios and restrictions contained in Section
7.2.4 and to the effect that, in making the examination necessary for
the signing of such annual report by such accountants, they have not
become aware of any Default that has occurred and is continuing, or,
if they have become aware of such Default, describing such Default and
the steps, if any, being taken to cure it;
(b) promptly when available, and in any event not less
than sixty (60) days after the close of each of the first three Fiscal
Quarters of each Fiscal Year, a consolidated balance sheet at the
close of such Fiscal Quarter, and consolidated statements of
operations and cash flow for such Fiscal Quarter and for the period
commencing at the close of the previous Fiscal Year and ending with
the close of such Fiscal Quarter, of the Borrower and its Subsidiaries
(with comparable information at the close of and for the corresponding
Fiscal Quarter of the prior Fiscal Year and for the corresponding
portion of such prior Fiscal Year), certified by the principal
accounting or financial Authorized Officer of the Borrower;
(c) within thirty (30) days after March 31, June 30,
September 30 and December 31 occurring in each calendar year, a
Compliance Certificate calculated as of such date;
(d) promptly after the sending or filing thereof, copies
of all reports which the Borrower or any Subsidiary sends to any of
its security holders, and all reports and registration statements
which the Borrower or any Subsidiary files with the Securities and
Exchange Commission or any national securities exchange; and
(e) such other information with respect to the financial
condition, business, property, assets, revenues, and operations of the
Borrower or any Subsidiary as the Agent may from time to time
reasonably request.
SECTION 7.1.2. COMPLIANCE WITH LAWS, ETC. The Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with
all applicable laws, rules, regulations and orders, such compliance to include:
(a) the maintenance and preservation of its corporate
existence and qualification and good standing status as a foreign
corporation in each jurisdiction where the nature of its business
makes such qualification necessary;
(b) the payment, before the same become delinquent, of
all taxes, assessments and other governmental charges or levies
imposed upon it or upon its property, as well as claims of any kind or
character (including claims for sums due for labor, material,
supplies, personal property and services) which, if unpaid, might
become a material Lien upon any one of its properties; provided,
however, that the foregoing shall not require the Borrower or any
Subsidiary to pay or discharge any such tax, assessment, charge, levy
or Lien so long as it shall be diligently contesting
-34-
40
the validity or amount thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves in
accordance with GAAP with respect thereto; and
(c) the acquisition and maintenance of all Approvals
material to the conduct of its business.
SECTION 7.1.3. MAINTENANCE OF PROPERTIES. The Borrower will, and
will cause each of its Subsidiaries to, maintain, preserve, protect and keep
its properties in good repair, working order and condition, and make necessary
and proper repairs, renewals and replacements so that its business carried on
in connection therewith may be properly conducted at all times unless the
Borrower or applicable Subsidiary determines in good faith that the continued
maintenance of any of its properties is no longer economically desirable.
SECTION 7.1.4. INSURANCE. The Borrower will, and will cause each of
its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies satisfactory to the Agent in its reasonable discretion
insurance with respect to its properties and business against such casualties
and contingencies and of such types and in such amounts as is customary in the
case of similar businesses similarly situated (including business interruption
insurance), and the Borrower will, upon request of the Agent, furnish to the
Agent at reasonable intervals a certificate of an Authorized Officer of the
Borrower setting forth the nature and extent of all insurance maintained by the
Borrower and each Subsidiary in accordance with this Section. The Borrower
will immediately notify the Agent of any proposed change of any insurance
company providing insurance coverage of the nature referred to in this Section.
SECTION 7.1.5. NOTICE OF DEFAULT, LITIGATION, ETC. The Borrower
shall give prompt notice (with a description in reasonable detail and, in the
case of clause (d), copies of all documentation relating to the notified event)
to the Agent of:
(a) upon becoming aware of the same, the occurrence of
any Default;
(b) upon becoming aware of the same, the commencement of
any litigation, action, proceeding or labor controversy of the type
described in Section 6.6, together with copies of all documentation
relating thereto requested by the Agent in connection with the
performance by the Borrower of its obligations under this Agreement or
any other Loan Document;
(c) upon becoming aware of the same, the occurrence of
any material adverse development with respect to any litigation,
action, proceeding or labor controversy described in Section 6.6; and
(d) upon becoming aware of the same, the institution of
any steps by the Borrower or any Subsidiary or any other Person to
terminate any Pension Plan, or the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give
rise to a Lien under Section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could result in the
requirement that the
-35-
41
Borrower or any Subsidiary furnish a bond or other security to the
PBGC or such Pension Plan, or the occurrence of any event with respect
to any Pension Plan which could result in the incurrence by the
Borrower or any Subsidiary of any material liability, fine or penalty,
or any material increase in the contingent liability of the Borrower
or any Subsidiary with respect to any post-retirement Welfare Plan
benefit.
SECTION 7.1.6. BOOKS AND RECORDS. The Borrower will keep, and will
cause each of its Subsidiaries to keep, books and records reflecting all of its
business affairs and transactions in accordance with GAAP and permit each Bank
Party or its representatives, at reasonable times and intervals, to inspect any
and all of the properties and operations of the Borrower or such Subsidiary, to
visit all of its offices or any other location where relevant personnel or
records are located, to discuss its financial matters with its officers and
independent public accountants, and to examine (and, at the expense of the
Borrower or relevant Subsidiary, photocopy extracts from) any of its books or
other corporate records. The Borrower shall pay any fees of its independent
public accountants incurred in connection with any Bank Party's exercise of its
rights pursuant to this Section.
SECTION 7.1.7. PERMITS. The Borrower will, and will cause each of
its Subsidiaries to, obtain and maintain all Approvals material to the conduct
of its respective business.
SECTION 7.1.8. ENVIRONMENTAL COVENANT. The Borrower will, and will
cause each of its Subsidiaries to:
(a) use and operate all of its facilities and properties
in material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) immediately notify the Agent and provide copies upon
receipt of all written material claims, complaints, notices or
inquiries relating to the condition of its facilities and properties
or compliance with Environmental Laws; and
(c) provide such information and certifications which the
Agent may reasonably request from time to time to evidence compliance
with this Section.
SECTION 7.1.9. USE OF LOAN PROCEEDS. The Borrower shall apply the
proceeds of all Loans for the purposes set forth in the fourth recital.
SECTION 7.2. CERTAIN NEGATIVE COVENANTS. The Borrower agrees with
each Bank Party that, until all Commitments have terminated and all Obligations
have been paid and performed in full, the Borrower will perform its obligations
set forth in this Section 7.2.
SECTION 7.2.1. BUSINESS ACTIVITIES. Neither the Borrower nor any
Subsidiary will engage in any business if, as a result, the nature of the
business, taken on a consolidated
-36-
42
basis, which would then be engaged in by the Borrower and its Subsidiaries
would be other than the mining, producing and selling of gold, silver and
copper contained within various ore deposits.
SECTION 7.2.2. LIENS. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens in favour of the Agent or the Banks granted
pursuant to any Loan Document;
(b) Liens for taxes, assessments or other governmental
charges to the extent that payment thereof shall not at the time be
required to be made in accordance with the provisions of Section
7.1.2;
(c) Liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course of business
for sums not overdue or being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(d) Liens in respect of any Project Indebtedness and
covering assets constituting the Mine to be financed with the proceeds
of such Permitted Project Indebtedness;
(e) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and contracts
(other than for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
(f) judgment liens in existence less than 15 days after
the entry thereof or with respect to which execution has been stayed
or the payment of which is covered in full (subject to a customary
deductible) by insurance with responsible insurance companies;
(g) Liens on movable plant or equipment held by the
Borrower or any Subsidiary under lease with an aggregate book value
not in excess of US$10,000,000 for all such plant and equipment at any
time subject to such Liens and incurred to secure Indebtedness of the
Borrower or such Subsidiary, respectively, which is incurred as a
Capitalized Lease Liability in respect of movable plant or equipment;
(h) minor survey exceptions or minor encumbrances,
easements or reservations, or rights of others for rights-of-way,
utilities and other similar purposes, or zoning or other restrictions
as to the use of real properties, which are necessary for the conduct
of the activities of the Borrower or any Subsidiary or which
customarily exist on properties of corporations engaged in similar
activities and
-37-
43
similarly situated and which do not in any event materially impair
their use in the operation of the business of the Borrower or any
Subsidiary; and
(i) Liens covering CGNZ's (i) interest in the Golden
Cross Joint Venture (including its interest in any real estate and
licences relating to the Golden Cross Mine), (ii) share of any
production of the Golden Cross Mine, and (iii) interest in any
contracts which may exist from time to time for the sale of its share
of any production of the Golden Cross Mine and in any proceeds from
the sale thereof, in each such case granted to Viking Mining Company
Limited in order to secure the obligations of CGNZ under any document
relating to the Golden Cross Joint Venture.
Neither the Borrower nor any Subsidiary will at any time create,
incur, assume or suffer to exist any Lien upon any of the certificates of
insurance maintained by any of them with respect to any Mine. Nothing in this
Section shall be deemed to restrict the ability of the Borrower or Subsidiary
to agree (in consideration of obtaining leases or other rights and interests to
explore for and extract metals) to pay Royalties; provided, however, that any
Royalty that is a material Royalty payable by the Borrower or any of its
Subsidiaries shall arise under an agreement described in Item 7 ("Material
Royalty Agreements") of the Disclosure Schedule.
SECTION 7.2.3. FINANCIAL CONDITION, ETC. OF THE BORROWER. The
Borrower will not permit:
(a) at any date, the ratio, expressed as a percentage, of
(i) Consolidated Qualifying Indebtedness at such
date,
to
(ii) Consolidated Tangible Net Worth at such date
to be more than 50%;
(b) Consolidated Tangible Net Worth to be, at any date,
less than US$250,000,000;
(c) the Consolidated Current Ratio to be, at any date,
less than 2:1; and
(d) at any date, Available Cash to be less than
US$25,000,000.
SECTION 7.2.4. RESTRICTED PAYMENTS, ETC.
(a) The Borrower will not declare, pay or make any
dividend or distribution (in cash, property or obligations) on any
shares of any class of capital stock (now or hereafter outstanding) of
the Borrower or on any warrants, options or other rights with respect
to any shares of any class of capital stock (now or hereafter
outstanding) of the Borrower (other than dividends or distributions
payable in its
-38-
44
stock, or warrants to purchase its stock, or splitups or
reclassifications of its stock into additional or other shares of its
stock) or apply, or permit any of its Subsidiaries to apply, any of
its funds, property or assets to the purchase, redemption, sinking
fund or other retirement of, or agree to permit any of its
Subsidiaries to purchase or redeem, any shares of any class of capital
stock (now or hereafter outstanding) of the Borrower, or warrants,
options or other rights with respect to any shares of any class of
capital stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not:
(i) make any payment or prepayment of principal
of, or make any payment of interest on, any Qualifying
Subordinated Indebtedness on any day other than the stated,
scheduled date for such payment or prepayment set forth in the
documents and instruments memorializing such Qualifying
Subordinated Indebtedness, or which would violate the
subordination provisions of such Qualifying Subordinated
Indebtedness; or
(ii) redeem, purchase or defease, any Qualifying
Subordinated Debt; and
(c) the Borrower will not, and will not permit any
Subsidiary to, make any deposit for any of the foregoing purposes or
otherwise discharge any Indebtedness incurred by any Affiliate of the
Borrower;
provided, however, that the Borrower may declare, pay or make any dividend or
distribution on any shares of its capital stock as aforesaid or any warrants,
etc. as aforesaid at any time when no Default shall have occurred and be
continuing (or would occur as result of any such declaration, etc.).
SECTION 7.2.5. TAKE OR PAY CONTRACTS. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into, suffer to exist or be a
party to any material arrangement for the purchase of materials, supplies,
other property or services if such arrangement by its express terms requires
that payment be made by the Borrower or relevant Subsidiary regardless of
whether or not such materials, supplies, other property or services are
delivered or furnished to it.
SECTION 7.2.6. CONSOLIDATION, MERGER, ETC. The Borrower will not,
and will not permit any of its Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, except that any
Subsidiary all of the capital stock of which is owned, directly or indirectly,
by the Borrower may merge with or liquidate or dissolve voluntarily into, the
Borrower or any other Subsidiary (including any Person which would, as a result
of such merger, etc., become a Subsidiary); provided, however, that (i) in
connection with any such transaction the surviving entity shall deliver such
certificates and opinions as the Agent shall request, (ii) no such transaction
shall be effected if (x) any Default has occurred and is continuing or would
occur as a result of any such transaction, or (y) the Agent shall not have
received at least twenty (20) Business Days' notice of such transaction. At
any time when any Default has occurred and is continuing or would occur
-39-
45
as a result of any transaction referred to in this sentence, the Borrower will
not, and the Borrower will not permit any of its Subsidiaries to, purchase or
otherwise acquire (a) any Person, which would, following such acquisition,
become a Subsidiary, or (b) all or substantially all of the assets of any
Person (or of any division thereof).
SECTION 7.2.7. ASSET DISPOSITIONS, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, transfer, lease, contribute
or otherwise convey, or grant options, warrants or other rights with respect
to, any of its assets (including accounts receivable or the capital stock of
any of its Subsidiaries) to any Person, except dispositions of assets made in
the ordinary course of its business and for fair value; provided, however, that
the Borrower or any Subsidiary may make any such sale, etc. which is not in the
ordinary course of its business (a) at any time when no Default has occurred
and is continuing, (b) if such sales etc is for fair value and (c) if the
proceeds thereof, when aggregated with the proceeds of any such prior sale,
etc. entered into after the Effective Date are not in excess of US$5,000,000.
SECTION 7.2.8. RESTRICTIVE AGREEMENTS. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any agreement (excluding
this Agreement) prohibiting:
(a) the creation or assumption of any Lien upon its
properties, revenues, or assets, whether now owned or hereafter
acquired, or the ability of the Borrower to amend or otherwise modify
this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower;
provided, however, that nothing in this Section shall prohibit the Borrower or
any Subsidiary entering into any Instrument relating to any Project
Indebtedness where the terms and conditions of such Instrument either (i)
prohibit the creation or assumption of any Lien in respect of any asset
constituting the Mine to be financed with the proceeds of such Project
Indebtedness or (ii) prohibit the ability of any Subsidiary owning the assets
constituting such Mine to make any payment of the nature referred to in clause
(b).
SECTION 7.2.9. CAPITAL EXPENDITURES, ETC. The Borrower will not,
and will not permit any of its Subsidiaries to, make or commit to make any
Capital Expenditure at any time when any Default has occurred and is continuing
(or may occur as a result of such Capital Expenditure).
SECTION 7.2.10. INCONSISTENT AGREEMENTS. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any agreement containing
any provision which would be violated or breached by the making of any Loan
hereunder or by the performance by the Borrower of its obligations hereunder or
under any other Loan Document.
-40-
46
SECTION 7.2.11. MODIFICATION OF CERTAIN AGREEMENTS. The Borrower
will not consent to any amendment, supplement or other modification of any of
the terms or provisions relating to the subordination of any Qualifying
Subordinated Indebtedness or to any other material terms or provisions
contained in, or applicable to, any document or instrument evidencing or
applicable to any Qualifying Subordinated Indebtedness, other than any
amendment, supplement or other modification which extends the date or reduces
the amount of any required repayment or redemption.
ARTICLE 8. EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. The term "Event of Default" shall
mean any of the events set forth in this Section 8.1.
SECTION 8.1.1. NON-PAYMENT OF OBLIGATIONS. The Borrower shall
default in the payment or prepayment when due of any principal amount of or
interest on any Loan, or the Borrower shall default (and such default shall
continue unremedied for a period of five (5) Business Days) in the payment when
due of any fee or other Obligation.
SECTION 8.1.2. BREACH OF REPRESENTATION OR WARRANTY. Any
representation or warranty of the Borrower hereunder or in any other Loan
Document executed by it is or shall be incorrect in any material respect when
made.
SECTION 8.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS. The Borrower
shall default in the due performance and observance of any of its obligations
under Section 7.1.5, 7.1.8 or 7.2.
SECTION 8.1.4. NON-PERFORMANCE OF OTHER OBLIGATIONS. The Borrower
shall default in the due performance or observance of any other term,
condition, covenant or agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of ten
(10) days after notice thereof shall have been given to the Borrower by the
Agent.
SECTION 8.1.5. DEFAULT ON OTHER INDEBTEDNESS. Any default shall
occur in the payment when due (subject to any applicable grace period), whether
by acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any Subsidiary having a
principal amount, individually or in the aggregate for the Borrower and all
such Subsidiaries, in excess of US$5,000,000, or the maturity of any such
Indebtedness shall be accelerated or a default shall occur in the performance
or observance of any obligation or condition with respect to such Indebtedness
and the effect of such default is to permit the acceleration of the maturity of
any such Indebtedness or such default shall continue unremedied for any
applicable period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable prior to its expressed maturity.
-41-
47
SECTION 8.1.6. JUDGMENTS. Any judgment or order for the payment of
money in excess of US$5,000,000 shall be rendered against the Borrower or any
Subsidiary and either:
(a) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order; or
(b) there shall be any period of ten (10) consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect.
SECTION 8.1.7. PENSION PLANS. Any of the following events shall
occur with respect to any Pension Plan:
(a) the institution of any steps by the Borrower, any
member of its Controlled Group or any other Person to terminate a
Pension Plan if, as a result of such termination, the Borrower or any
such member could be required to make a contribution to such Pension
Plan, or could reasonably expect to incur a liability or obligation to
such Pension Plan, in excess of US$250,000; or
(b) a contribution failure sufficient to give rise to a
Lien under Section 302(f) of ERISA.
SECTION 8.1.8. CHANGE IN CONTROL. Any Change in Control shall occur.
SECTION 8.1.9. BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any
Subsidiary shall:
(a) become insolvent or generally fail to pay, or admit
in writing its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other custodian
for the Borrower or any Subsidiary or any property of any thereof, or
make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any
Subsidiary or for a substantial part of the property of any thereof,
and such trustee, receiver, sequestrator or other custodian shall not
be discharged within thirty (30) days, provided that the Borrower and
each Subsidiary hereby expressly authorizes each Bank Party to appear
in any court conducting any relevant proceeding during such thirty
(30) day period to preserve, protect and defend their rights under
this Agreement and each other Loan Document;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in
-42-
48
respect of the Borrower or any Subsidiary, and, if such case or
proceeding is not commenced by the Borrower or such Subsidiary, such
case or proceeding shall be consented to or acquiesced in by the
Borrower or such Subsidiary or shall result in the entry of an order
for relief or shall remain for thirty (30) days undismissed, provided
that the Borrower and each Subsidiary hereby expressly authorizes each
Bank Party to appear in any court conducting any relevant proceeding
during such thirty (30) day period to preserve, protect and defend
their rights under this Agreement and each other Loan Document; or
(e) take any corporate action authorizing, or in
furtherance of, any of the foregoing.
SECTION 8.1.10. MATERIALLY ADVERSE CHANGE. There shall, in the
reasonable opinion of the Required Banks, be a materially adverse change in the
financial condition, operations, assets, business, properties or prospects of
the Borrower and its Subsidiaries.
SECTION 8.1.11. APPROVALS, ETC. Any Approval or Instrument which is
material to the conduct of the business of the Borrower shall (in the case of
any such Approval) be withdrawn or shall (in the case of any such Approval or
Instrument) cease to remain in full force and effect.
SECTION 8.2. ACTION IF BANKRUPTCY. If any Event of Default
described in Section 8.1.9 shall occur, the Commitments (if not previously
terminated) shall automatically terminate and the outstanding principal amount
of all outstanding Loans and all other Obligations shall automatically be and
become immediately due and payable, without notice or demand.
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of
Default (other than any Event of Default described in Section 8.1.9) shall
occur for any reason, whether voluntary or involuntary, and be continuing, the
Agent may, and upon the direction of the Required Banks, shall, by notice to
the Borrower, declare all or any portion of the outstanding principal amount of
the Loans and any or all other Obligations to be due and payable and/or the
Commitments (if not previously terminated) to be terminated, whereupon the full
unpaid principal amount of such Loans and any and all other Obligations which
shall be so declared due and payable shall be and become immediately due and
payable, without further notice, demand, or presentment, and/or, as the case
may be, the Commitments shall terminate.
ARTICLE 9. THE AGENT
SECTION 9.1. ACTIONS. Each Bank authorizes the Agent to act on
behalf of such Bank under this Agreement and any other Loan Document in the
various capacities set forth herein and in the other Loan Documents and, in the
absence of other written instructions from the Required Banks received from
time to time by the Agent (with respect to which the Agent agrees that it will,
subject to the last two sentences of this Section, comply in good faith except
as otherwise advised by counsel to the effect that any such compliance might
-43-
49
subject the Agent to any liability of whatsoever nature as to which the Agent
is not acceptably indemnified pursuant to the provisions of this Agreement), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of it by the terms hereof and thereof, together with such powers as
may be reasonably incidental thereto. Each Bank agrees (which agreement shall
survive any termination of this Agreement) to indemnify the Agent, pro rata
according to such Bank's Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any
time be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement or any other Loan Document,
including the reimbursement of the Agent for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees (inclusive of Value Added Tax in
the United Kingdom or any similar tax in any other jurisdiction)) incurred by
the Agent hereunder or in connection herewith or in enforcing the Obligations
under this Agreement and each other Loan Document, in all cases as to which the
Agent is not reimbursed by the Borrower; provided, however, that no Bank shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements determined by a court of competent jurisdiction in a final
proceeding to have resulted from the Agent's gross negligence or wilful
misconduct. The Agent shall not be required to take any action hereunder or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement or any other Loan Document, unless it is indemnified to its
satisfaction by the Banks against loss, costs, liability and expense. If any
indemnity in favour of the Agent shall become impaired, the Agent may call for
additional indemnity and cease to do the acts indemnified against until such
additional indemnity is given.
SECTION 9.2. EXCULPATION. Neither the Agent, nor any of its
directors, officers, employees or agents, shall be liable to any Bank for any
action taken or omitted to be taken by it under this Agreement or any other
Loan Document, or in connection herewith or therewith, except for its own
wilful misconduct or gross negligence, nor responsible for any recitals or
warranties herein or therein, nor for the effectiveness, enforceability,
validity or due execution of this Agreement or any other Loan Document, nor to
make any inquiry respecting the performance by the Borrower of its obligations
hereunder or thereunder, nor the validity, genuineness, creation, perfection or
priority of any Liens created by any of the Loan Documents, nor the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security. The Agent shall be entitled to rely upon advice of counsel
concerning legal matters and upon any notice, consent, certificate, statement,
or writing which it believes to be genuine and to have been presented by a
proper Person.
SECTION 9.3. SUCCESSOR. The Agent may resign as such at any time
upon at least thirty (30) days' prior notice to the Borrower and all the Banks.
If the Agent at any time shall resign, the Required Banks may appoint another
Bank as a successor Agent which shall thereupon become the Agent hereunder. If
no successor Agent shall have been so appointed by the Required Banks, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving notice of resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be one of the Banks or a
commercial banking institution organized under the laws of the United States or
England and having a combined capital and surplus of at least US$500,000,000
(or equivalent in another currency).
-44-
50
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall be entitled to receive from the retiring Agent such
documents of transfer and assignment as such successor Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement and
the other Loan Documents. After any retiring Agent's resignation hereunder as
the Agent, the provisions of:
(a) this Article 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Agent
under this Agreement; and
(b) Sections 10.3 and 10.4 shall continue to inure to its
benefit.
SECTION 9.4. LOANS BY THE AGENT. The Agent shall have the same
rights and powers with respect to the Loans made by it or any of its Affiliates
as any Bank and may exercise the same as if it were not the Agent.
SECTION 9.5. ROTHSCHILD AS THE AGENT. In acting as the Agent for
the Banks, the Credits and/or Treasury Division(s) of Rothschild shall be
treated as a separate entity from any other of its divisions (or similar units
of Rothschild in any subsequent reorganization) and, without detracting from
the generality of the foregoing, in the event that any of its divisions (or
similar units) should act for the Borrower, any Subsidiary of any thereof or
any of their Affiliates (the "Group") in an advisory capacity in relation to
any other matter, any information given by any member of the Group to such
divisions (or similar units) for the purpose of obtaining advice shall be
treated as confidential and shall not be available to the Banks without the
consent of the Borrower; and notwithstanding anything to the contrary expressed
or implied herein and without prejudice to the generality of the foregoing,
Rothschild shall not as between itself and the Banks be bound to disclose to
any Bank or other Person any information supplied by any member of the Group to
Rothschild in its capacity as the Agent which is identified by such member of
the Group at the time of supply as being unpublished price sensitive
information relating to a proposed transaction by a member of the Group and
supplied solely for the purpose of evaluating in consultation with Rothschild
whether such transaction might require a waiver or amendment to any of the
provisions contained herein.
SECTION 9.6. CREDIT DECISIONS. Each Bank acknowledges that it
has, independently of the Agent and each other Bank, and based on the financial
and other information referred to in Sections 6.4 and 6.16 and such other
documents, information and investigations as it has deemed appropriate, made
its own credit decision to extend its Commitment. Each Bank also acknowledges
that it will, independently of the Agent and each other Bank, and based on such
other documents, information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
this Agreement or any other Loan Document.
SECTION 9.7. COPIES, ETC. Subject to the other terms and
conditions of this Agreement (including Section 9.5), the Agent shall give
prompt notice to each Bank of each
-45-
51
notice or request required or permitted to be given to the Agent by the
Borrower pursuant to the terms of this Agreement. Subject as aforesaid, the
Agent will promptly distribute to each Bank each Instrument received for its
account (including any item of documentation delivered by the Borrower pursuant
to Article 5) and copies of all other communications received by the Agent from
the Borrower for distribution to the Banks by the Agent in accordance with the
terms of this Agreement.
SECTION 9.8. FEES. The Borrower hereby confirms and agrees that
it will pay to the Agent, for the Agent's individual account, all fees, costs,
expenses and all other amounts agreed upon by the Borrower and the Agent in
accordance with the terms of the letter, dated November 19, 1996, from the
Agent to the Borrower. None of the Banks (other than Rothschild in its
capacity as the Agent) shall have any interest in any amounts or payments
described in this Section.
SECTION 9.9. FUNDING RELIANCE, ETC. Unless the Agent shall have
been notified by telephone, confirmed in writing, by any Bank by 5:00 p.m.,
London time, on the day prior to the making of any Loans that such Bank will
not make available the amount which would constitute its Percentage of such
Loans on the date specified therefor, the Agent may assume that such Bank has
made such amount available to the Agent and, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If and to the extent
that such Bank shall not have made such amount available to the Agent, such
Bank and the Borrower severally agree to repay the Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date the Agent made such amount available to the Borrower to the date such
amount is repaid to the Agent, at the interest rate applicable at the time to
the relevant Loans.
SECTION 9.10. APPLICATION OF ARTICLE 9. Except for the provisions
of Sections 9.3, 9.5 and 9.8, this Article 9 shall only apply to the
relationships among the Banks and the Agent.
ARTICLE 10. MISCELLANEOUS
SECTION 10.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower, the Agent and the Required Banks; provided,
however, that no such amendment, modification or waiver:
(a) which would modify any requirement hereunder that any
particular action be taken by all the Banks or by the Required Banks
shall be effective unless consented to by each Bank;
(b) which would modify this Section 10.1, change the
definition of "Required Banks," increase the Total Commitment Amount
or the Percentage of any Bank, reduce any fees described in Section
2.5, extend the Commitment Termination Date shall be made without the
consent of each Bank;
-46-
52
(c) which would extend the due date for, or reduce the
amount of, any repayment or prepayment of principal of or interest on
any Loan (or reduce the principal amount of or rate of interest on any
Loan) shall be made without the consent of each Bank; or
(d) which would affect adversely the interests, rights or
obligations of the Agent shall be made without the consent of the
Agent.
No failure or delay on the part of any Bank Party in exercising any power or
right under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on the Borrower in any case shall
entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by any Bank Party under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval,
be applicable to subsequent transactions. No waiver or approval hereunder
shall require any similar or dissimilar waiver or approval thereafter to be
granted hereunder.
SECTION 10.2. NOTICES. All notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by telex or by facsimile and addressed or delivered to
it at its address set forth below its signature hereto and designated as its
"Address for Notices" or at such other address as may be designated by such
party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any
notice, if transmitted by telex or facsimile, shall be deemed received when
transmitted (answerback confirmed in the case of telexes and transmission
confirmed by the sending facsimile machine in the case of facsimiles).
SECTION 10.3. COSTS AND EXPENSES.
(a) The Borrower agrees to pay on demand all expenses
(inclusive of Value Added Tax in the United Kingdom or any similar tax
in any other jurisdiction) of the Agent for the negotiation,
preparation, execution and delivery of this Agreement and each other
Loan Document, including schedules and exhibits, and any amendments,
waivers, consents, supplements or other modifications to this
Agreement or any other Loan Document as may from time to time
hereafter be required (including the reasonable fees and expenses of
counsel for the Agent from time to time incurred in connection
therewith), whether or not the transactions contemplated hereby are
consummated, and all expenses (inclusive as aforesaid) of the Agent
(including reasonable fees and expenses of counsel to the Agent)
incurred in connection with the preparation and review of the form of
any Instrument relevant to this Agreement or any other Loan Document,
the consideration of legal questions relevant hereto and thereto and
the filing, recording, refiling or re-recording of any Loan Document
and all amendments or supplements to any thereof and any and all other
documents or Instruments of further assurance required to be filed or
recorded or refiled or re-recorded by the terms hereof or of any other
Loan Document; and
-47-
53
(b) The Borrower agrees to reimburse each Bank Party upon
demand for all reasonable out-of-pocket expenses (inclusive of Value
Added Tax in the United Kingdom or any similar tax in any other
jurisdiction and including attorneys' fees and legal expenses)
incurred by such Bank Party in connection with (i) the negotiation of
any restructuring or "work-out", whether or not consummated, of any
Obligations and (ii) the enforcement of any Obligations.
SECTION 10.4. INDEMNIFICATION. In consideration of the execution
and delivery of this Agreement by each Bank Party and the extension of the
Commitments, the Borrower hereby indemnifies, exonerates and holds each Bank
Party and each of its officers, directors, employees and agents (the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages and expenses
actually incurred in connection therewith, including reasonable attorneys' fees
and disbursements (the "Indemnified Liabilities"), by the Indemnified Parties
or any of them as a result of, or arising out of, or relating to:
(a) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement
and any other Loan Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Borrower as the
result of any determination by the Required Banks not to fund the
making of any Loan as a result of the failure of the Borrower or any
Subsidiary to satisfy any term or condition of Article 5);
(c) any investigation, litigation or proceeding related
to any environmental cleanup, audit, compliance or other matter
relating to the protection of the environment or the Release by the
Borrower or any Subsidiary of any Hazardous Material; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases or
threatened releases from, any real property owned or operated by the
Borrower or any Subsidiary of any Hazardous Material (including any
losses, liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, the Borrower or such
Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
negligence or wilful misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SECTION 10.5. SURVIVAL. The obligations of the Borrower under
Sections 3.5, 4.4, 4.5, 4.6, 10.3, and 10.4, and the obligations of the Banks
under Section 9.1, shall, in each case, survive any termination of this
Agreement, the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by the
-48-
54
Borrower in this Agreement and in each other Loan Document shall survive the
execution and delivery of this Agreement and each other such Loan Document.
SECTION 10.6. SEVERABILITY. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
of this Agreement or such other Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. HEADINGS. The various headings of this Agreement and
of each other Loan Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Loan
Document or any provisions hereof or thereof.
SECTION 10.8. COUNTERPARTS, EFFECTIVENESS, ETC. This Agreement may
be executed by the parties hereto in several counterparts, each of which shall
be deemed to be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective on the date (the
"Effective Date") when counterparts hereof executed on behalf of the Borrower
and each Bank (or notice thereof satisfactory to the Agent) shall have been
received by the Agent.
SECTION 10.9. GOVERNING LAW; ENTIRE AGREEMENT.
(a) THIS AGREEMENT AND, UNLESS OTHERWISE SPECIFIED
THEREIN, EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
(b) This Agreement and the other Loan Documents
constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and thereof and supersede any
prior agreements, written or oral, with respect thereto (except, for
the purpose of 9.8, the letter referred to therein).
SECTION 10.10. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agent
and all the Banks; and
(b) the rights of sale, assignment and transfer of the
Banks are subject to Section 10.11.
SECTION 10.11. SALE AND TRANSFER OF LOANS; PARTICIPATIONS IN LOANS.
Each Bank may assign, or sell participations in, its Loans and Commitment to
one or more other Persons in accordance with this Section.
-49-
55
SECTION 10.11.1. ASSIGNMENTS. Any Bank:
(a) with the written consents of the Borrower and the
Agent (which consents shall not be unreasonably delayed or withheld
and which consent, in the case of the Borrower, shall be deemed to
have been given in the absence of a written notice delivered by the
Borrower to the Agent, on or before the fifth Business Day after
receipt by the Borrower of such Bank's request for consent, stating,
in reasonable detail, the reasons why the Borrower proposes to
withhold such consent) may at any time assign and delegate to one or
more commercial banks or other financial institutions; and
(b) with notice to the Borrower and the Agent, but
without the consent of the Borrower or the Agent, may assign and
delegate to any of its Affiliates or to any other Bank
(each Person described in either of the foregoing clauses as being the Person
from or to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignor Bank" or "Assignee Bank", respectively), all or any
fraction of such Bank's total Loans and Commitment (which assignment and
delegation shall be of a constant, and not a varying, percentage of all the
Assignor Bank's Loans and Commitment) in a minimum aggregate Commitment Amount
of US$1,000,000; provided, however, that, the Borrower and the Agent shall be
entitled to continue to deal solely and directly with the Assignor Bank in
connection with the interests so assigned and delegated to an Assignee Bank
until
(c) written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee Bank, shall have been given to the
Borrower and the Agent by such Assignor Bank and such Assignee Bank,
(d) such Assignee Bank shall have executed and delivered
to the Borrower and the Agent a Bank Assignment Agreement, accepted by
the Agent, and
(e) the processing fees described below shall have been
paid.
From and after the date that the Agent accepts such Bank Assignment Agreement,
(x) the Assignee Bank thereunder shall be deemed automatically to have become a
party hereto and to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee Bank in connection with such Bank
Assignment Agreement, shall have the rights and obligations of a Bank hereunder
and under the other Loan Documents, and (y) the Assignor Bank, to the extent
that rights and obligations hereunder have been assigned and delegated by it in
connection with such Bank Assignment Agreement, shall be released from its
obligations hereunder and under the other Loan Documents. Accrued interest on
that part of the Loans assigned to the Assignee Bank, and accrued fees in
respect thereof, shall be paid as provided in the Bank Assignment Agreement.
Such Assignor Bank or such Assignee Bank shall also pay a processing fee to the
Agent upon delivery of any Bank Assignment Agreement in the amount of US$2,000.
Any attempted assignment and delegation not made in accordance with this
Section shall be null and void.
-50-
56
SECTION 10.11.2. PARTICIPATIONS. Any Bank may at any time
sell to one or more commercial banks or other Persons (each of such commercial
banks and other Persons being herein called a "Participant") participating
interests in any of the Loans, Commitment, or other interests of such Bank
hereunder; provided, however, that:
(a) no participation contemplated in this Section shall
relieve such Bank from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Bank shall remain solely responsible for the
performance of its Commitment and such other obligations;
(c) the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement and each of the other Loan
Documents;
(d) no Participant, unless such Participant is an
Affiliate of such Bank, or is itself a Bank, shall be entitled to
require such Bank to take or refrain from taking any action hereunder
or under any other Loan Document, except that such Bank may agree with
any Participant that such Bank will not, without such Participant's
consent, take any actions of the type described in clause (b) or (c)
of Section 10.1; and
(e) the Borrower shall not be required to pay any amount
under Section 3.5 that is greater than the amount which it would have
been required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 3.5, 3.7, 3.8, 4.4, 4.5, 4.6, 10.3 and 10.4, shall be considered a
Bank.
SECTION 10.12. OTHER TRANSACTIONS. Nothing contained herein shall
preclude any Bank Party from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Affiliates in which the Borrower or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 10.13. CHANGE IN ACCOUNTING PRINCIPLES. If, after the
Effective Date, there shall be any change to the Borrower's Fiscal Year, or in
the application of the accounting principles used in the preparation of the
financial statements referred to in Section 6.4 as a result of the promulgation
of rules, regulations, pronouncements, or opinions by the American Institute of
Certified Public Accountants (or successors thereto or agencies in the U.S. or
any other jurisdiction with similar functions) which changes result in a change
in the method of calculation of financial covenants, standards, or terms found
in this Agreement, the parties hereto agree promptly to enter into negotiations
in order to amend such financial covenants, standards, or terms so as to
reflect equitably such changes with the desired result that the evaluations of
the Borrower's financial condition shall be the same after such changes as if
such changes had not been made; provided, however, that until the parties
hereto have reached a definitive agreement on such amendments, the Borrower's
-51-
57
financial condition shall continue to be evaluated on the same principles as
those used in the preparation of the financial statements referred to in
Section 6.4.
SECTION 10.14. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR (UNLESS OTHERWISE SPECIFIED THEREIN) ANY OTHER LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF THE BANK PARTIES OR THE OBLIGORS SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IDAHO OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE
DISTRICT OF IDAHO; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST
ANY PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY
AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF
ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWER
HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEM WITH OFFICES ON THE DATE
HEREOF AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS AGENT FOR SERVICE OF
PROCESS IN NEW YORK (THE "PROCESS AGENT"). SERVICE OF PROCESS IN NEW YORK MAY
BE MADE UPON THE BORROWER BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO IT
IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ADDRESS AND THE BORROWER
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUIT, ACTION OR
PROCEEDING IN NEW YORK OR IDAHO ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BY THE MAILING OF COPIES OF SUCH PROCESS AT ITS ADDRESS FOR NOTICES
SET FORTH BELOW ITS SIGNATURE HERETO. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. WAIVER OF JURY TRIAL. THE BANK PARTIES AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
-52-
58
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE BANK PARTIES
OR THE BORROWER. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTIES HERETO ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.16. CONFIDENTIALITY. Information provided by the Borrower
hereunder or under any other Loan Document shall not be disclosed by the Agent
or any Bank or used by the Agent or any Bank for any purpose other than
evaluation, monitoring and review pursuant to this Agreement; provided,
however, that such information may be disclosed:
(a) as contemplated by Section 10.11 if the relevant Assignee
Bank or Participant is advised such information is confidential;
(b) to any director, officer or employee of the Agent or such
Bank; provided, however, that same is treated in the same manner as
other confidential information held by the Agent or such Bank;
(c) to legal counsel, accountants and other consultants and
professional advisors determined by the Agent or such Bank to require
such information for the purpose of assisting in or advising upon such
evaluation, monitoring and review, if such persons are advised that
such information is confidential to the Borrower;
(d) pursuant to Applicable Law;
(e) to the extent that such information is public; or
(f) to the extent that such information was previously known
to the Agent or such Bank through means other than the Borrower, or
was acquired from a third party not known to the Agent or such Bank to
be under a duty of confidentiality to the Borrower.
-53-
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
THE BORROWER
COEUR D'XXXXX XXXXX CORPORATION
By:
--------------------------------
Name Printed:
-------------------
Title:
--------------------------
Address for Notices:
000 Xxxxx Xxxxxx
X.X. Xxx X
Xxxxx x'Xxxxx
Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
-54-
60
THE AGENT AND THE BANKS
Percentage
50%
N M ROTHSCHILD &
SONS LIMITED, individually as a Bank
and as the Agent
By:
--------------------------------
Name Printed:
-------------------
Title:
--------------------------
By:
--------------------------------
Name Printed:
-------------------
Title:
--------------------------
Address for Notices:
Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Facsimile No.: 00-000-000-0000
Telex No.: 888031
Attention: Xxxxxxx Xxxxx/Xxxx Xxxx
Lending Office:
The Chase Manhattan Bank N.A.
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
X.X.X.
For the account of
N M Rothschild & Sons Limited
(Account No: 001-1-948262)
Facsimile No.: 00-000-000-0000
Telex No.: 888031
Attention: Xxxxxx Xxxx
-55-
61
50%
BAYERISCHE VEREINSBANK AG, as a Bank
By:
--------------------------------
Name Printed:
-------------------
Title:
--------------------------
By:
--------------------------------
Name Printed:
-------------------
Title:
--------------------------
Address for Notices and Lending
Office:
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, X.X. 00000
X.X.X.
Facsimile No.: (000) 000-0000
Telex No.: 62850 UBB
Attention: Xxxxxx Xxxxxxxxx/
Xxxxxx Xxxxxxxx
With a copy, in the case of notices
relating to the funding of Loans and
payments, to:
Bayerische Vereinsbank AG
0 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xxxx Xxxxxxxx
-56-