AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED COLLATERAL AGREEMENT
Exhibit 10.3
This AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED COLLATERAL AGREEMENT (this
“Amendment”), dated as of July 16, 2010, is entered into by and among COEUR D’XXXXX XXXXX
CORPORATION, an Idaho corporation (the “Parent”) and MITSUBISHI INTERNATIONAL CORPORATION,
a New York corporation (the “Secured Party”).
WHEREAS, the parties hereto are parties to that certain Second Amended and Restated Collateral
Agreement, dated as of August 7, 2009 (the “Collateral Agreement”) by and among the Parent,
the Secured Party and CDE AUSTRALIA PTY LTD, an Australian proprietary limited corporation
(“Coeur Australia”);
WHEREAS, the parties hereto are parties to that certain Amendment No. 1 to Second Amended and
Restated Collateral Agreement, dated as of September 10, 2009 (“Amendment No. 1”), that
certain Amendment No. 2 to Second Amended and Restated Collateral Agreement, dated as of February
8, 2010 (“Amendment No. 2”) and that certain Amendment No. 3 to Second Amended and Restated
Collateral Agreement, dated as of March 2, 2010 (“Amendment No. 3”, and together with
Amendment No. 1 and Amendment No. 2, the “Prior Amendments”);
WHEREAS, the parties hereto desire to amend the Collateral Agreement as set forth in greater
detail below; and
WHEREAS, Section 6.02(a) of the Collateral Agreement provides that the Collateral Agreement
may be amended, modified, or supplemented by a writing signed by both the Parent and the Secured
Party;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and obligations
hereinafter set forth, the parties hereby agree as follows:
Section 1. Definitions.
Capitalized terms used herein, defined in the Collateral Agreement and not otherwise defined
herein shall have the meanings specified therefor in the Collateral Agreement when used herein.
Section 2. Amendment of Collateral Agreement.
(a) Exhibit E to the Collateral Agreement is hereby amended and replaced in its entirety by
Exhibit E to this Amendment.
(b) Article IV of the Collateral Agreement is hereby amended by adding a new Section 4.16,
which shall read as follows:
“Non-Applicability of Certain Provisions. Notwithstanding anything to the contrary
contained in this Agreement: (a) if the Australia Collateral Threshold is $0.00, (i) none of the
representations and warranties or affirmative or negative obligations of Coeur Australia under this
Agreement shall apply and (ii) none of the representations and warranties or affirmative or
negative obligations of the Parent and none of the rights of the Secured Party under this Agreement
with respect to the Australia Collateral, an Account Control Agreement, Cobar Operation Pty
Limited, the Cobar Payment Instructions, the Cobar Silver Sale Agreement, Coeur Australia, the
Limited Purpose, the Pledged Account or the Restricted Account Agreement shall apply and (b) if the
L/C Amount Threshold is $0.00, none of the representations and warranties or affirmative or
negative obligations of the Parent and none of the rights of the Secured Party under this Agreement
with respect to the Xxxxx Fargo L/C shall apply.”
Section 3. Additional Agreements.
(a) The Parent and the Secured Party will enter into a new Lease or new Leases, pursuant to
the Lease Agreement, of an aggregate of at least 10,000 ounces of Metal, separate from Metal which
is the subject of Leases currently in existence, within 30 days of the date hereof, the term of
which new Lease or new Leases shall end December 31, 2010.
(b) If the average Outstanding Gold Obligation Amount from the date hereof through December
31, 2010 is less than 50% of the sum of the average Total Collateral Requirement and the average
Uncollateralized Portion (such sum, the “Total Availability”) during such period, then the
Parent shall pay to the Secured Party a fee of 0.125% of the difference between the Total
Availability and such average Outstanding Gold Obligation Amount (such fee, the “Initial
Facility Fee”), which fee shall be due on the tenth Business Day after December 31, 2010. If
the average Outstanding Gold Obligation Amount during the six calendar month period beginning on
January 1, 2011 or July 1, 2011 is less than 50% of the average Total Availability during such
period, then the Parent shall pay to the Secured Party a fee of 0.125% of the difference between
such average Total Availability and such average Outstanding Gold Obligation Amount, which fee
shall be due on the tenth Business Day after the last day of such six calendar month period (such
fee, the “Facility Fee”). The Initial Facility Fee or Facility Fee, as applicable, shall
cease to accrue upon termination of the Collateral Agreement in accordance with its terms. On
November 1, 2011, the parties shall commence negotiation of a mutually agreeable facility fee that
would be applicable for the following calendar year. For purposes of this paragraph, the average
Outstanding Gold Obligation Amount for any period shall be calculated by (i) multiplying each
Outstanding Gold Obligation Amount that was in effect during such period by the total number of
days during such period for which it was in effect, (ii) summing the amounts determined pursuant to
clause (i), and (iii) dividing such sum by the total number of days in such period; and the average
Total Collateral Requirement for any period shall be calculated by (x) multiplying each Total
Collateral Requirement that was in effect during such period by the total number of days during
such period for which it was in effect, (y) summing the amounts determined pursuant to clause (x),
and (z) dividing such sum by the total number of days in such period.
(c) Within three Business Days of the date hereof, the Secured Party shall send to the Parent
the original copy of the letter of credit, or the original copy of each letter of credit, as
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applicable, constituting the Xxxxx Fargo L/C, accompanied by (i) a cancellation of the Xxxxx Fargo
L/C in the form attached hereto as Exhibit F.
Section 4. Effectiveness.
This Amendment shall become effective as of the date first above written (such date, the
“Amendment Effective Date”).
Section 5 Reference to and Effect on the Collateral Agreement and Lease Agreement.
(a) On and after the Amendment Effective Date, each reference in the Collateral Agreement to
“this Agreement”, “hereunder”, “hereof” or words of like import referring to the Collateral
Agreement and each reference in the Lease Agreement to “the Collateral Agreement”, “thereunder”,
“thereof” or words of like import referring to the Collateral Agreement shall mean and be a
reference to the Collateral Agreement, as amended by this Amendment.
(b) On and after the Amendment Effective Date, the Prior Amendments shall be superseded in
whole by this Amendment.
(c) Except to the extent certain provisions of the Collateral Agreement and the Lease
Agreement are amended as specified herein, the Collateral Agreement and the Lease Agreement are and
shall continue to be in full force and effect and are hereby in all respects ratified and
confirmed.
Section 6. Execution in Counterparts.
This Amendment may be executed by one or more of the parties to this Amendment on any number
of separate counterparts, and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. Delivery of an executed signature page of this Amendment by facsimile
or electronic transmission shall be effective as delivery of a manually executed counterpart
hereof.
Section 7. Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first
written above.
| COEUR D’XXXXX XXXXX CORPORATION: |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | CFO | |||
| MITSUBISHI INTERNATIONAL CORPORATION: |
||||
| By: | /s/ X. Xxxxxx | |||
| Name: | X. Xxxxxx | |||
| Title: | Division SVP, Precious Metals Division | |||
Amendment No. 4 to Second Amended and Restated Collateral Agreement
EXHIBIT E
Values Table and Credit Support
The minimum amount of Collateral required to be provided hereunder shall be the sum of the
Australia Collateral Threshold, the Refinery Collateral Threshold and the L/C Amount Threshold
(such sum, the “Total Collateral Requirement”). The Collateral provided hereunder will be
comprised of the Xxxxx Fargo L/C plus quantities of Refinery Collateral and Australia Collateral,
each in at least the amounts specified in the table below.
Uncollateralized Portion |
$19.8 million | |
Minimum amount of Australia Collateral (“Australia Collateral Threshold”) |
$0.00 | |
Minimum amount of Refinery Collateral (“Refinery Collateral Threshold”) |
$29.7 million | |
Minimum amount of Xxxxx Fargo L/C (“L/C Amount Threshold”) |
$0.00 |
