1
Exhibit 10.2.2
AMENDMENT NO. 2 (this "Amendment") dated as of August 19,
1998, among XX XXXXXX CORPORATION (the "Company"), a corporation organized under
the laws of the State of Colorado, CANYON RESOURCES CORPORATION, a corporation
organized under the laws of the State of Delaware (the "Guarantor"), the Lenders
named on the signature pages hereof, and PARIBAS, in its capacity as agent for
the Lenders (the "Agent").
WITNESSETH
WHEREAS, the Company, the Lenders and the Agent have entered
into the Loan Agreement dated as of December 6, 1995 and amended as of April 8,
1998 (as amended, modified and supplemented from time to time, the "Loan
Agreement"), providing for certain Loans to be made to the Company by the
Lenders to finance the acquisition and construction of the Project;
WHEREAS, the Guarantor, the Company and the Agent have entered
into the Guarantee, Equity Contribution and Pledge Agreement dated as of
December 6, 1995 and amended as of April 8, 1998 (as amended, modified and
supplemented from time to time, the "Guarantee Agreement"), in connection with
the Loan Agreement;
WHEREAS, the Company has requested that the Loan Agreement be
amended and that certain matters be waived by the Lenders in an amendment and
waiver agreement ("Amendment No. 2 and Waiver") among the Company, the Lenders
and the Agent dated as of August 19, 1998;
WHEREAS, it is a condition precedent to the amendments
contained in the Amendment No. 2 and Waiver that this Amendment be executed.
NOW, THEREFORE, the Company, the Guarantor, the Lenders and
the Agent wish to amend the Guarantee Agreement in certain respects, and
accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Terms used but not defined herein
shall have the respective meanings ascribed to such terms in the Loan Agreement.
Section 2. Amendments.
2.01. Amendment to the Guarantee Agreement. Subject to the
satisfaction of the conditions precedent specified in Section 4 below, but
effective on and as of the date hereof, the Guarantee Agreement shall be amended
as follows:
Amendment
2
-2-
(a) Section 1. of the Guarantee Agreement is amended to include the
following new definitions in the appropriate alphabetical locations:
"CR Minerals" shall mean CR Minerals Corporation, a
corporation organized under the laws of the state of Colorado and a wholly owned
subsidiary of the Guarantor.
"CR Minerals Sale" shall mean the sale by the Guarantor of all
or a portion of its 100 common shares in CR Minerals.
"CR Minerals Sale Proceeds" shall have the meaning ascribed
thereto in Section 2.02(e).
"Canyon Resources Africa Assets" shall mean collectively,
Canyon Resources Africa Ltd., a corporation organized under the laws of the
State of Colorado and 90% owned by the Guarantor, Canyon Resources Tanzania Ltd.
a corporation organized under the laws of Tanzania and 90% owned by the
Guarantor and CR Minerals Zimbabwe (PVT) Ltd. a corporation organized under the
laws of Zimbabwe a wholly owned subsidiary of Canyon Resources Africa Ltd.
"Canyon Resources Africa Sale" shall mean the sale by the
Guarantor of all or a portion of its shares in the Canyon Resources Africa
Assets.
"Canyon Resources Africa Sale Proceeds" shall have the meaning
ascribed thereto in Section 2.02(e).
"Sale Proceeds" shall mean the CR Minerals Sale Proceeds and
the Canyon Resources Africa Sale Proceeds.
(b) Section 2.02 of the Guarantee Agreement is amended by
adding the following Section 2.02(e):
"(e) Sale Proceeds. Within (30) thirty days of the
consummation of the CR Minerals Sale, the Guarantor hereby agrees to
use proceeds therefrom (the "CR Minerals Sale Proceeds") to make a cash
capital contribution to the Borrower in Dollars in immediately
available funds in an amount equal to the greater of (x) U.S.$2,000,000
and (y) 40% of the CR Minerals Sale Proceeds. Within (30) thirty days
of the consummation of the Canyon Resources Africa Sale, the Guarantor
hereby agrees to use proceeds therefrom (the "Canyon Resources Africa
Sale Proceeds") to make a cash capital contribution to the Borrower in
Dollars in immediately available funds of $500,000."
(c) Section 2.02 of the Guarantee Agreement is amended by
adding the following Section 2.02(f):
"(f) Use of Sale Proceeds. The Borrower hereby agrees to use
the proceeds of the equity contributions described in clause (e) above
for the purpose of prepayment of the Loans and such other purposes as
may be approved by the unanimous consent of the Lenders in accordance
with Section 2.10(i) of the Loan Agreement."
Amendment
3
-3-
(d) Section 4(d) of the Guarantee Agreement is amended to be
entitled Section 4(e) and Section 4(e) of the Guarantee Agreement is amended to
be entitled Section 4(f).
(e) Section 4 of the Guarantee Agreement is amended to include
a new Section 4(d) to read in its entirety as follows:
"(d) the shares of common stock of CR Minerals, having a par
value of $.01 per share, represented by certificate No. 1 and all other
shares of capital stock of whatever class of CR Minerals, now or
hereafter owned by the Guarantor, in each case together with the
certificates evidencing the same (collectively, the "CR Minerals
Shares") and all shares, securities, moneys or property representing a
dividend on any of the CR Minerals Shares, or representing a
distribution or return of capital upon or in respect of the CR Minerals
Shares, or resulting from a split-up, reclassification or other like
change of the CR Minerals Shares or otherwise received in exchange
therefor, and any subscription warrants, rights or options issued to
the holder of, or otherwise in respect of, the CR Minerals shares ".
(f) Section 5.05 of the Guarantee Agreement is amended by
inserting after the term "Expansion Completion" in the second line thereof the
phrase "and at all times thereafter until the Borrower's Future Debt Cover Ratio
is equal to, or in excess of, 1.6:1".
Section 3. Representations and Warranties.
Section 3.01 The Guarantor represents and warrants to the
Agent and the Lenders that each of the representations and warranties set forth
in Section 3.01 of the Guarantee Agreement are true and complete on the date
hereof as if made on and as of the date hereof.
Section 3.02 The Guarantor represents and warrants to the
Agent and the Lenders that each of the representations and warranties set forth
in Sections 3.09(a) and (b) of the Guarantee Agreement are true and complete on
the date hereof as if made on and as of the date hereof and as if each reference
in Sections 3.09(a) and (b) to "Pledged Stock" referred to the "CR Minerals
Shares".
Section 4. Effectiveness. This Amendment shall become
effective as of August 19, 1998 (a) upon the execution and delivery of this
Amendment by the Company, the Guarantor, the Agent and each Lender (b) and upon
the transfer and delivery to the Agent by the Guarantor of its shares in CR
Minerals as described in Section 4(d) hereof (together with the certificates for
any such shares duly endorsed in blank and accompanied by undated stock powers
duly executed in blank).
Section 5. Waiver. Subject to the satisfaction of the
conditions precedent specified in Section 4 above, but effective on and as of
the date hereof, the Lenders hereby waive the Guarantor's compliance with
Section 5.01 of the Guarantee Agreement.
Section 6. Documents Otherwise Unchanged. Except as herein
provided, the Guarantee Agreement shall remain unchanged and in full force and
effect, and each reference to the Guarantee Agreement shall be a reference, to
the Guarantee Agreement, as amended hereby and as the same may be further
amended, supplemented and otherwise modified and in effect from time to time.
Amendment
4
-4-
Section 7. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be identical and all of which, when
taken together, shall constitute one and the same instrument, and any of the
parties hereto may execute this Amendment by signing any such counterpart.
Section 8. Binding Effect. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 9. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
BORROWER
XX XXXXXX CORPORATION.
By /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Vice President
AGENT
PARIBAS
as Agent
By /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Amendment
5
-5-
LENDERS:
PARIBAS
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: VP
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ X. X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
NM ROTHSCHILD & SONS LIMITED
By: /s/ X. X. Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title: Assistant Director
By: /s/ D. W. Street
---------------------------------
Name: Xxxxx Street
Title: Assistant Director
Amendment
6
-6-
GUARANTOR:
CANYON RESOURCES CORPORATION
By: /s/ Xxxxxxx X. Xx Xxxx
--------------------------------------
Name: Xxxxxxx X. Xx Xxxx
Title: President
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President-Finance
Amendment
7
-7-
EXECUTION COPY
AMENDMENT NO. 2 AND WAIVER (this "Amendment") dated as of August 19,
1998, among XX XXXXXX CORPORATION (the "Company"), a corporation
organized under the laws of the State of Colorado, the Lenders named on
the signature pages hereof, and PARIBAS, in its capacity as agent for
the Lenders (the "Agent").
WITNESSETH
WHEREAS, the Company, the Lenders and the Agent have entered into the
Loan Agreement dated as of December 6, 1995 and amended as of April 8,
1998 (as amended, modified and supplemented from time to time, the
"Loan Agreement"), providing for certain Loans to be made to the
Company by the Lenders to finance the acquisition and construction of
the Project;
WHEREAS, Canyon Resources Corporation (the "Guarantor"), the Company
and the Agent have entered into the Guarantee, Equity Contribution and
Pledge Agreement dated as of December 6, 1995 and amended as of April
8, 1998 (as amended, modified and supplemented from time to time, the
"Guarantee Agreement"), in connection with the Loan Agreement;
WHEREAS, in connection with the proposed restructuring of the Company's
obligations under the Loan Agreement (and as further described in this
Amendment), the Company has agreed to use the proceeds of the
liquidation of certain Hedge Contracts to prepay a portion of the
Company's Indebtedness;
WHEREAS, the Lenders have agreed to provide additional loans to the
Company in order to satisfy its accounts payable and other expenditures
approved by the Lenders on terms and conditions set forth below;
NOW, THEREFORE, the Company, the Guarantor, the Lenders and the Agent
wish to amend the Loan Agreement in certain respects, and accordingly,
the parties hereto hereby agree as follows:
Section 1. Definitions. Terms used but not defined herein shall have
the respective meanings ascribed to such terms in the Loan Agreement.
Section 2. Conditions Precedent. The agreements set forth in Section 3
of this Amendment shall be subject to the satisfactory completion, in
the Agent's sole opinion, of the following conditions:
(a) The Company, the Guarantor and the Agent shall have entered into an
amendment to the Guarantee Agreement substantially in the form of
Exhibit A hereto;
(b) The Company shall have applied the remaining proceeds received from
the liquidation of certain Hedge Contracts (the "Liquidation Proceeds")
currently held in escrow by the Agent to the prepayment of the Tranche
A Gold Loan in the manner directed by the Agent.
Section 3. Amendments.
3.01. Amendment to the Loan Agreement. (a) Section 1.01 of the Loan
Agreement is amended to include the following new definitions in the
appropriate alphabetical locations:
"CR Minerals" shall have the meaning ascribed thereto in the Guarantee
Agreement.
"CR Minerals Sale" shall have the meaning ascribed thereto in the
Guarantee Agreement.
"Canyon Resources Africa Sale" shall have the meaning ascribed thereto
in the Guarantee Agreement.
Amendment
8
-8-
"Sale Proceeds" shall mean the CR Minerals Sale Proceeds and the Canyon
Resources Africa Sale Proceeds.
"London A.M. Gold Fix" shall mean, on any day, the sale price per xxxx
ounce of Gold fixed by members of the London Bullion Market Association
in the morning (London time) of such day.
"Tranche D Availability Period" shall mean the period from August 19,
1998 to but excluding the Tranche D Commitment Termination Date.
"Tranche D Commitment Termination Date" shall mean the earlier to occur
of (a) the date on which both the CR Minerals Sale and the Canyon
Resources Africa Sale are completed and (b) February 19, 1999.
"Tranche D Commitment" shall mean the obligation of each Tranche D
Lender to make Tranche D Loans in an aggregate Principal Amount at any
one time outstanding up to but not exceeding in the case of each
Tranche D Lender that is a signatory hereto, the amount set forth
opposite its name on Schedule I hereto under the caption
"Tranche D Commitment" (in each case as the same is reduced by each
Tranche D Loan made pursuant to Section 2.01(d) hereof or as may be
reduced at any time or from time to time pursuant to Section 2.03 or
9.02 hereof). At the date of this Agreement, the aggregate amount of
the Tranche D Commitments of all Tranche D Lenders is equal to
U.S.$1,000,000.
"Tranche D Loan" shall have the meaning ascribed thereto in Section
2.01(d) hereof.
"Tranche D Lenders" shall mean (i) on the date hereof, the Lenders
listed on Schedule I hereto under the caption Tranche D Lenders and
(ii) thereafter, the Lenders that are from time to time holders of the
Tranche D Loans, the Tranche D Notes and the Tranche D Commitments,
after giving effect to any assignments thereof permitted by Section
11.02(b) hereof.
"Tranche D Notes" shall mean the promissory notes provided for by
Section 2.06(d) hereof substantially in the form of Appendix A-7 hereto
and all promissory notes delivered in substitution or exchange
therefor.
"Tranche D Principal Payment Date" shall mean February 19, 1999.
(b) The following definitions in Section 1.01 of the Loan Agreement are
amended as set forth below:
(i) The definition of "Applicable Margin" is amended to read as
follows: "Applicable Margin" shall mean (a) with respect to
Tranche A Loans, until such time as the Company's Future Debt
Cover Ratio is equal to, or in excess of 1.6 to 1, 2 3/8% per
annum and after the Company's Future Debt Cover Ratio is equal
to, or in excess of 1.6 to 1, 2 1/8%, (b) with respect to Tranche
B Loans and Tranche C Loans, 4 1/8% per annum and (c) with
respect to Tranche D Loans, 2 3/8% per annum."
(ii) The definition of "Commitments" is amended to read as
follows: "Commitments" shall mean collectively , the Tranche A
Commitments, the Tranche B Commitments, the Tranche C Commitments
and the Tranche D Commitments.
(iii) The definition of "Completion Date" is amended to read as
follows: "Completion Date" shall mean August 19, 1998.
Amendment
9
-9-
(iv) The definition of "Dollar Loans" is amended to read as
follows: "Dollar Loans" shall mean collectively, Tranche A Dollar
Loans, Tranche B Dollar Loans, Tranche C Dollar Loans and Tranche
D Loans."
(v) The definition of "Expansion Completion Date" is amended
to read as follows: "Expansion Completion Date" shall mean August
19, 1998.
(vi) The definition of "Loans" is amended to read as follows:
"Loans" shall mean collectively, the Tranche A Loans, Tranche B
Loans, the Tranche C Loans and the Tranche D Loans, to be made
pursuant to Section 2.01 hereof."
(vii) The definition of "Notes" is amended to read as follows:
"Notes" shall mean collectively, Tranche A Notes, Tranche B
Notes, Tranche C Notes and Tranche D Notes."; and
(viii) The definition of "Principal Payment Date" is amended to
read as follows: "Principal Payment Date" shall mean
collectively, Tranche A Principal Payment Dates, Tranche B
Principal Payment Dates, Tranche C Principal Payment Dates and
the Tranche D Principal Payment Date."
(c) Section 2.01 of the Loan Agreement is amended to include Section
2.01(d) as follows:
"(d) Each Tranche D Lender severally agrees, on the terms and
subject to the conditions of this Agreement, to make the loans to the
Borrower in Dollars during the Tranche D Availability Period in an
aggregate Principal Amount not exceeding such Tranche D Lender's
Tranche D Commitment ("Tranche D Loans"). No Tranche D Lender shall be
obligated to make a Tranche D Loan unless and until each Tranche D
Lender has (i) received a Notice of Borrowing in substantially the form
of Appendix M hereto and (ii) given its consent to the making of such
Tranche D Loan."
(d) Section 2.03(a) of the Loan Agreement is amended by deleting the
word "and" after the term "Tranche B Commitments" in the third line thereof and
inserting in its place a comma.
(e) Section 2.03(a) of the Loan Agreement is amended by inserting after
the term "Tranche "C Commitments" in the fourth line thereof the phrase "and
Tranche D Commitments".
(f) Section 2.03(b) of the Loan Agreement is amended by inserting as
the last sentence thereof, the following text: "All Tranche D Commitments shall
be automatically reduced to zero on the Tranche D Commitment Termination Date."
(g) Section 2.06(d) of the Loan Agreement is amended to be entitled
Section 2.06(e) and Section 2.06(e) of the Loan Agreement is amended to be
entitled Section 2.06(f).
(h) Section 2.06 of the Loan Agreement is amended to include a new
Section 2.06(d) to read in its entirety as follows:
"(d) The Tranche D Loans made by each Tranche D Lender shall be
evidenced by a single promissory note of the Borrower in substantially
the form of Appendix A-7 hereto, dated the date of the delivery of such
Note to the Agent and payable to such Lender in a Principal Amount
equal to the amount of its Tranche D Commitment as originally in
effect, and otherwise duly completed."
(i) Section 2.08 of the Loan Agreement is amended to include as the
last sentence thereof, the following text: "The Borrower hereby
promises to pay to the Agent
Amendment
10
-10-
for the account of each Lender on the Tranche D Principal Payment Date
an amount equal to the aggregate outstanding Principal Amount of such
Lender's Loans on the Tranche D Commitment Termination Date."
(j) Section 2.10 of the Loan Agreement is amended to include Section
2.10(i) to read in its entirety as follows:
"(i) The Borrower shall prepay the outstanding amount of the
Loans in an amount equal to the Sale Proceeds received from the
Guarantor pursuant to the Guarantee and Pledge Agreement, provided that
the prepayment described in this clause (i) shall be applied first, to
the Tranche D Loans and thereafter, to all other Loans outstanding as
directed by the Agent."
(k) Section 2.13 of the Loan Agreement is amended by deleting the
word "or" after the term "Tranche B Loans" in the eleventh line thereof and
inserting in its place a comma.
(l) Section 2.13 of the Loan Agreement is amended by inserting
after the term "Tranche C Loans" in the eleventh line thereof the phrase "or
Tranche D Loans".
(m) Section 2.13 of the Loan Agreement is amended by deleting the
word "or" after the term "Tranche B Loans" in the twelfth line thereof and
inserting in its place a comma.
(n) Section 2.13 of the Loan Agreement is amended by inserting
after the term "Tranche C Loans" in the thirteenth line thereof
the phrase "or Tranche D Loans".
(o) Section 2.18 of the Loan Agreement is amended by deleting the
word "or" after the term "Tranche B Loans" in the seventeenth
line thereof and inserting in its place a comma.
(p) Section 2.18 of the Loan Agreement is amended by inserting
after the term "Tranche C Loans" in the eighteenth line thereof
the phrase "or Tranche D Loans".
(q) Section 2.18 of the Loan Agreement is amended by deleting the
word "and" after the term "Tranche B Loans" in the eighteenth
line thereof and inserting in its place a comma.
(r) Section 2.18 of the Loan Agreement is amended by inserting
after the term "Tranche C Loans" in the nineteenth line thereof
the phrase "and Tranche D Loans".
(s) Section 2.18 of the Loan Agreement is amended by inserting
after the word "hereof)" in the ninth line of page fifty one the
following text: ", provided that each such notice of borrowing
delivered in respect of a Tranche D Loan will be substantially in
the form of Appendix M hereto."
(t) Section 8.01(b) of the Loan Agreement is amended by replacing
clause (y) on the thirteenth line of page ninety-four with the
following text: "(y) the price of Gold for the portion of gold
production not subject to a Hedge Contract during the projection
period will equal the arithmetic average of the daily London A.M.
Gold Fix over the six month period preceding the date of such
projections".
(u) Section 8.28(a) of the Loan Agreement is amended to read in
its entirety as follows:
"(a) The Borrower agrees to maintain a Future Debt Cover
Ratio equal to, or in excess of, 1.3 to 1, provided however, that
for the periods commencing on (i) June 30, 1998 and ending on
September 30, 1998 and (ii) September 30, 1998 and ending on
December 31, 1998 the Borrower agrees to maintain a Future Debt
Cover Ratio equal to, or in excess of, 1.15:1."
(v) Schedule I to the Loan Agreement is hereby amended in its
entirety and replaced by the Schedule annexed to this Amendment.
Amendment
11
-11-
(w) The Appendices to the Loan Agreement are hereby amended to include
Appendix A-7 entitled "Form of Note for Tranche D Loans" as annexed to
this Amendment and Appendix M entitled "Notice of Borrowing for Tranche
D Loans" as annexed to this Amendment.
Section 4. Waiver. Subject to the satisfaction of the conditions
precedent specified in Section 2 above, but effective on and as of the
date hereof, the Lenders hereby waive (i) any Event of Default under
Section 9.01(c)(i) of the Loan Agreement that has arisen directly as a
result of a failure to maintain the Future Debt Cover Ratio covenant
specified in Section 8.28(a) of the Loan Agreement, (ii) any Event of
Default under Section 9.01(c)(ii) that has arisen directly as a result
of the Company's failure to comply with the covenant specified in
Section 8.01(d) of the Loan Agreement or a failure of the Guarantor to
comply with its obligations under Section 5.01 of the Guarantee
Agreement, (iii) any Event of Default under Section 9.01(i) of the Loan
Agreement, (iv) the Company's compliance with Section 2.09(b) and (c)
of the Loan Agreement and (v) the Company's compliance with the
prepayment mechanics of Section 2.11 of the Loan Agreement specified in
the first through the ninth lines of said Section 2.11 on page forty
five and the first through the ninth lines of said Section 2.11 on page
forty six thereof.
Section 5. Documents Otherwise Unchanged. Except as herein provided,
the Loan Agreement shall remain unchanged and in full force and effect,
and each reference to the Loan Agreement shall be a reference to the
Loan Agreement as amended hereby and as the same may be further
amended, supplemented and otherwise modified and in effect from time to
time.
Section 6. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be identical and all of which,
when taken together, shall constitute one and the same instrument, and
any of the parties hereto may execute this Amendment by signing any
such counterpart.
Section 7. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns. Section
8. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
Amendment
12
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first above written.
BORROWER
XX XXXXXX CORPORATION.
By /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
AGENT
PARIBAS
as Agent
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
LENDERS:
PARIBAS
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
Amendment
00
XXXXXXXXXX XXXXXXXXXXX XX,
XXX XXXX BRANCH
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
NM ROTHSCHILD & SONS LIMITED
By /s/ X. X. Xxxx
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Assistant Director
By /s/ D. W. Street
-----------------------------------
Name: Xxxxx Street
Title: Assistant Director
Amendment
14
SCHEDULE I
Commitments
Tranche A
Tranche A Lenders: Commitment:
------------------ -----------
Paribas 8,333,334
Bayerische Vereinsbank 8,333,333
Rothschild 8,333,333
===========
Total Tranche A Commitments U.S. $25,000,000
Tranche B
Tranche B Lenders: Commitment:
------------------ -----------
Paribas 1,666,668
Bayerische Vereinsbank 1,666,666
Rothschild 1,666,666
===========
Total Tranche B Commitments U.S. $ 5,000,000
Tranche C
Tranche C Lenders: Commitment:
------------------ -----------
Paribas 1,333,334
Bayerische Vereinsbank 1,333,333
Rothschild 1,333,333
===========
Total Tranche C Commitments U.S. $ 4,000,000
Tranche D
Tranche D Lenders: Commitment:
------------------ -----------
Paribas 333,334
Bayerische Vereinsbank 333,333
Rothschild 333,333
===========
Total Tranche D Commitments U.S. $ 1,000,000
Applicable Lending Office for each Lender
Paribas 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bayerische Vereinsbank 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Rothschild Xxx Xxxxx, Xx. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
15
Appendix M to
the Loan Agreement
[FORM OF NOTICE OF BORROWING]
[Letterhead of the Company]
(Delivered pursuant to Section 2.18 of the Loan Agreement)
Date of this Notice of Borrowing: ,
---------- -----
Requested Drawdown Date: ,
---------- -----
PARIBAS,
as Agent
Attention:
Ladies and Gentlemen:
1. This "Notice of Borrowing" is delivered to you pursuant to
that certain Loan Agreement, dated as of December 6, 1995 and amended as of
April 8, 1998 and August 19, 1998 (the "Loan Agreement"), among (i) XX Xxxxxx
Corporation (the "Company"), (ii) Paribas, as Agent, and (iii) each Person who
is or may become party thereto in the capacity of a lender (collectively, the
"Lenders"). Capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto in the Loan Agreement.
2. Each of the undersigned has read and is familiar with the provisions of the
Loan Agreement that are relevant to the furnishing of this Notice of Borrowing.
3. This Notice of Borrowing constitutes a request for a
disbursement of [$_______].
4. The requested drawdown date of the disbursement is
__________, which is a Business Day.
5. The requested disbursement will be used to satisfy
Operating Costs as set forth in a schedule to this Notice of Borrowing and with
the relevant invoices attached.
6. There are no sources of funds available to the Company to
satisfy such Operating Costs other than the disbursement requested.
16
-2-
IN WITNESS WHEREOF, the undersigned has executed this Notice
of Borrowing on this [__] day of [_______], [____].
XX XXXXXX CORPORATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
APPENDIX A-7
[Form of Note for Tranche D Loans]
PROMISSORY NOTE
(Tranche D Loans)
$ 333,334 August __, 1998
---------- New York, New York
FOR VALUE RECEIVED, XX XXXXXX CORPORATION, a Colorado corporation (the
"Borrower"), hereby promises to pay to Paribas (the "Lender"), for account of
its respective Applicable Lending Offices provided for by the Loan Agreement
referred to below, at the principal office of Paribas, at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, the principal sum of $333,334 Dollars (or such lesser
amount as shall equal the aggregate unpaid Principal Amount of the Tranche D
Loans made by the Lender to the Borrower under the Loan Agreement), in lawful
money of the United States of America and in immediately available funds, on the
dates and in the Principal Amounts provided in the Loan Agreement, and to pay
interest on the unpaid Principal Amount of each such Tranche D Loan, at such
office and in like money and funds, for the period commencing on the date of
such Tranche D Loan until such Tranche D Loan shall be paid in full, at the
rates per annum and on the dates provided in the Loan Agreement.
The date, amount, type, interest rate and duration of Interest Period
(if applicable) of each Tranche D Loan made by the Lender to the Borrower, and
each payment made on account of the
2
17
-3-
Principal thereof, shall be recorded by the Lender on its books and, prior to
any transfer of this Note, endorsed by the Lender on the schedule attached
hereto or any continuation thereof; provided that any failure by the Lender to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Loan Agreement in respect of the Tranche D Loans
made by the Lender to the Borrower.
This Note is one of the Notes referred to in the Loan Agreement (as
modified and supplemented and in effect from time to time, the "Loan Agreement")
dated as of December 6, 1995 and amended as of April 8, 1998 and August 19, 1998
among the Borrower, the lenders named therein (including the Lender) and the
Agent and evidences the Tranche D Loans made by the Lender thereunder.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Loan Agreement.
The Loan Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events specified therein.
This Note is secured by the Collateral and is entitled to the benefits
of the Security Documents.
Except as permitted by Section 11.02(b) of the Loan Agreement, this
Note may not be assigned by the Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.
XX XXXXXX CORPORATION
By /s/ Xxxx X. Xxxxx
---------------------------
Title: Vice President
Amendment
18
-4-
SCHEDULE OF TRANCHE D LOANS
This Note evidences Tranche D Loans made under the within-described
Loan Agreement to the Borrower, on the dates, in the Principal Amounts, of the
types, bearing interest at the rates and having Interest Periods (if applicable)
of the duration set forth below, subject to the payments of Principal set forth
below:
Principal
Amount of Duration of Unpaid
Tranche D Interest Principal Notation
Date Made Loan Type of Loan Interest Rate Period Amount Paid Amount Made By
--------- --------- ------------ ------------- ----------- ----------- --------- --------
Amendment
00
-0-
XXXXXXXX X-0
[Form of Note for Tranche D Loans]
PROMISSORY NOTE
(Tranche D Loans)
$ 333,333 August __, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XX XXXXXX CORPORATION, a Colorado corporation (the
"Borrower"), hereby promises to pay to Bayerische Vereinsbank (the "Lender"),
for account of its respective Applicable Lending Offices provided for by the
Loan Agreement referred to below, at the principal office of Paribas, at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, the principal sum of 333,333 Dollars
(or such lesser amount as shall equal the aggregate unpaid Principal Amount of
the Tranche D Loans made by the Lender to the Borrower under the Loan
Agreement), in lawful money of the United States of America and in immediately
available funds, on the dates and in the Principal Amounts provided in the Loan
Agreement, and to pay interest on the unpaid Principal Amount of each such
Tranche D Loan, at such office and in like money and funds, for the period
commencing on the date of such Tranche D Loan until such Tranche D Loan shall be
paid in full, at the rates per annum and on the dates provided in the Loan
Agreement.
The date, amount, type, interest rate and duration of Interest Period
(if applicable) of each Tranche D Loan made by the Lender to the Borrower, and
each payment made on account of the Principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof; provided
that any failure by the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Loan Agreement
in respect of the Tranche D Loans made by the Lender to the Borrower.
This Note is one of the Notes referred to in the Loan Agreement (as
modified and supplemented and in effect from time to time, the "Loan Agreement")
dated as of December 6, 1995 and amended as of April 8, 1998 and August 19, 1998
among the Borrower, the lenders named therein (including the Lender) and the
Agent and evidences the Tranche D Loans made by the Lender thereunder.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Loan Agreement.
Amendment
20
-6-
The Loan Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events specified therein.
This Note is secured by the Collateral and is entitled to the benefits
of the Security Documents.
Except as permitted by Section 11.02(b) of the Loan Agreement, this
Note may not be assigned by the Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.
XX XXXXXX CORPORATION
By /s/ Xxxx X. Xxxxx
-------------------------------
Title: Vice President
Amendment
21
-7-
SCHEDULE OF TRANCHE D LOANS
This Note evidences Tranche D Loans made under the within-described
Loan Agreement to the Borrower, on the dates, in the Principal Amounts, of the
types, bearing interest at the rates and having Interest Periods (if applicable)
of the duration set forth below, subject to the payments of Principal set forth
below:
Principal
Amount of Duration of Unpaid
Tranche D Interest Principal Notation
Date Made Loan Type of Loan Interest Rate Period Amount Paid Amount Made By
--------- --------- ------------ ------------- ----------- ----------- --------- --------
Amendment
00
-0-
XXXXXXXX X-0
[Form of Note for Tranche D Loans]
PROMISSORY NOTE
(Tranche D Loans)
$ 333,333 August __, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XX XXXXXX CORPORATION, a Colorado corporation (the
"Borrower"), hereby promises to pay to Rothschild (the "Lender"), for account of
its respective Applicable Lending Offices provided for by the Loan Agreement
referred to below, at the principal office of Paribas, at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, the principal sum of 333,333 Dollars (or such lesser
amount as shall equal the aggregate unpaid Principal Amount of the Tranche D
Loans made by the Lender to the Borrower under the Loan Agreement), in lawful
money of the United States of America and in immediately available funds, on the
dates and in the Principal Amounts provided in the Loan Agreement, and to pay
interest on the unpaid Principal Amount of each such Tranche D Loan, at such
office and in like money and funds, for the period commencing on the date of
such Tranche D Loan until such Tranche D Loan shall be paid in full, at the
rates per annum and on the dates provided in the Loan Agreement.
The date, amount, type, interest rate and duration of Interest Period
(if applicable) of each Tranche D Loan made by the Lender to the Borrower, and
each payment made on account of the Principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Note, endorsed by the
Lender on the schedule attached hereto or any continuation thereof; provided
that any failure by the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Loan Agreement
in respect of the Tranche D Loans made by the Lender to the Borrower.
This Note is one of the Notes referred to in the Loan Agreement (as
modified and supplemented and in effect from time to time, the "Loan Agreement")
dated as of December 6, 1995 and amended as of April 8, 1998 and August 19, 1998
among the Borrower, the lenders named therein (including the Lender) and the
Agent and evidences the Tranche D Loans made by the Lender thereunder.
Capitalized terms used in this Note have the respective meanings assigned to
them in the Loan Agreement.
Amendment
23
-9-
The Loan Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events specified therein.
This Note is secured by the Collateral and is entitled to the benefits
of the Security Documents.
Except as permitted by Section 11.02(b) of the Loan Agreement, this
Note may not be assigned by the Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.
XX XXXXXX CORPORATION
By /s/ Xxxx X. Xxxxx
-------------------------------
Title: Vice President
Amendment
24
-10-
SCHEDULE OF TRANCHE D LOANS
This Note evidences Tranche D Loans made under the within-described
Loan Agreement to the Borrower, on the dates, in the Principal Amounts, of the
types, bearing interest at the rates and having Interest Periods (if applicable)
of the duration set forth below, subject to the payments of Principal set forth
below:
Principal
Amount of Duration of Unpaid
Tranche D Interest Principal Notation
Date Made Loan Type of Loan Interest Rate Period Amount Paid Amount Made By
--------- --------- ------------ ------------- ----------- ----------- --------- --------
Amendment
