Exhibit 10.2.5
AMENDMENT NO. 5 AND WAIVER
AMENDMENT NO. 5 AND WAIVER (this "Amendment") dated as of March 25,
2002, 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 BNP PARIBAS, as successor-in-interest to Banque Paribas, New York
Branch, 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,
August 19, 1998, July 8, 1999, and March 26, 2001 (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, August
19, 1998, July 8, 1999, and March 26, 2001 (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 further
amended and that certain matters be waived by the Lenders, subject and pursuant
to the terms and conditions of this Amendment and subject to the condition
precedent that Guarantor execute the Waiver attached hereto as Exhibit A;
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 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 Sections 3
and 4 of this Amendment shall be subject to the satisfactory completion, in the
Lenders' sole opinion, of the following conditions:
(a) The Company, the Guarantor and the Lenders shall have
entered into a Waiver relating to the Guarantee Agreement substantially
in the form of Exhibit A hereto; and
(b) The Lenders receive an Officer's Certificate that no Event
of Default, which is not otherwise being waived by the terms hereof,
under the Loan Agreement shall have occurred and be continuing.
1
Section 3. Amendments. The Loan Agreement is amended as follows:
(a) Schedule II to the Loan Agreement hereby is amended in its
entirety and replaced by the Schedule II set forth in Exhibit B to this
Amendment.
(b) The following new Section 8.29 is added to the Loan
Agreement:
"8.29 Limitations on Payments of Trade Accounts Payable. To
the extent that Borrower reduces total trade accounts payable
below the following amounts, the Lenders will receive
payments, which shall be applied to the Principal balance due,
equal to such reductions: U.S. $3.5 million prior to June 30,
2002; U.S. $3.0 million prior to December 31, 2002; and U.S.
$2.5 million prior to June 30, 2003."
(c) Section 2.10 of the Loan Agreement is amended to include a
new Section 2.10(j), which shall read in its entirety as follows:
"(j) The Borrower shall prepay the outstanding amount of the
Loans in an amount equal to fifty percent (50%) of the amount
in excess of U.S. $2,000,000 that Guarantor or any Subsidiary
(as defined in the Guarantee and Pledge Agreement) receives,
net of any required payments to Xxxxxx Dodge Corporation,
(which is entitled to receive one-third (1/3) of net proceeds
received as a result of a court judgment or settlement in the
takings lawsuits) or to any third parties that participate in
the funding of the lawsuit against the State of Montana that
have been filed by certain Subsidiaries of the Guarantor, to
wit: Seven Up Xxxx Venture, et al. v. Xxxx Xxxxx, Governor of
the State of Montana, et al., Cause Xx. 00-00-X-XXX, Xxxxxx
Xxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx of Montana; and Seven Up Xxxx
Venture, et al. v. State of Montana, et al., Cause No.
XXX-0000-000, Xxxxxxxx Xxxxx of Xxxxx and Xxxxx County,
Montana, including any appeals thereof."
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) the following Events of Default, and (ii)
the Company's compliance with the following requirements and obligations under
the Loan Agreement through June 30, 2003, or repayment in full of the Loans,
whichever first occurs:
(a) Any Event of Default under Section 2.08 with respect to
the January, 2002, and February, 2002 principal payments; and
(b) Compliance with Section 8.26 of the Loan Agreement;
(c) Compliance with Section 8.27 of the Loan Agreement;
(d) Any existing Event of Default under Section 8.16(d); and
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(e) Compliance with Sections 8.06 (other than the second
sentence of that Section), 8.12(b), 8.13, 8.16(d), 8.17(c) (but only if
the cumulative amount of lien claims at any one time do not exceed
$500,000), and 8.28 of the Loan Agreement.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver 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"
-----
BNP PARIBAS, as agent for the Lenders
By: /s/ Xxxx Xxxxxxxx. Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx, Xxxx Xxxxxxxx
-----------------------------------
Title: Assistant Vice President, Director
-----------------------------------
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"LENDERS"
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BNP PARIBAS
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
-------------------------------
Title: Director
-------------------------------
By: /s/ Xxxxx Xxx
-------------------------------
Name: Xxxxx Xxx
-------------------------------
Title: Vice President
-------------------------------
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
-------------------------------
Title: Director
-------------------------------
By: /s/ Xxxxxx De Xxxxx
-------------------------------
Name: Xxxxxx De Xxxxx
-------------------------------
Title: Associate Director
-------------------------------
NM ROTHSCHILD & SONS LIMITED
By: /s/ X. Xxxxxxx
-------------------------------
Name: X. Xxxxxxx
-------------------------------
Title: Director
-------------------------------
By: /s/ X. X. Xxxx
-------------------------------
Name: Xxxxxxxx X. Xxxx
-------------------------------
Title: Assistant Director
-------------------------------
4
EXHIBIT A
AMENDMENT NO. 3 TO GUARANTEE AGREEMENT AND WAIVER
THIS AMENDMENT NO. 3 TO GUARANTEE AGREEMENT AND WAIVER (this "Waiver")
dated as of March 25, 2002, 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 in the signature pages hereof, and BNP
PARIBAS, as successor-in-interest to Banque Paribas, New York Branch, 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,
August 19, 1998, July 8, 1999, and March 26, 2001 (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, August 19 1998, July 8, 1999, and March 26,
2001 (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. 5 and Waiver") among the Company, the Lenders and the
Agent dated as of March 25, 2002.
WHEREAS, it is a condition precedent to the amendments contained in the
Amendment No. 5 and Waiver that this Waiver be executed.
NOW, THEREFORE, the Company, the Guarantor, the Lenders and the Agent
hereby agree as follows:
Section 1. Definitions. Terms used by not defined herein shall have the
respective meanings ascribed to such terms in the Loan Agreement.
Section 2. Representations and Warranties. The Guarantor represents and
warrants to the Agent and the Lenders that each of the representations and
warranties set forth in Sections 3.01, 3.03, 3.04, 3.05, 3.06, 3.07 and 3.08 of
the Guarantee Agreement are true and complete on the date hereof as if made on
and as of the date hereof. Guarantor further represents and warrants that no
other Events of Default have occurred, other than those that have been waived in
writing pursuant to the Loan Agreement or Guarantee Agreement.
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Section 3. Effectiveness. This Waiver shall become effective as of
March 25, 2002: (a) upon the execution and delivery of this Waiver by the
Company, the Guarantor, the Agent and each Lender, and (b) upon the execution
and delivery of the Amendment No. 5 and Waiver and the satisfaction of all
conditions specified therein.
Section 4. Amendments to Guarantee Agreement. Subject to the
satisfaction of the conditions precedent specified in Section 3 above, but
effective on and as of the date above, the Guarantee Agreement shall be amended
as follows:
(a) Section 2.02 of the Guarantee Agreement is amended by
adding the following Section 2.02(g):
"(g) Montana Litigation Proceeds. Within thirty (30) days of
receipt by Guarantor or any of its Subsidiaries, of net
proceeds in excess of U.S. $2,000,000 from the litigation, as
described in Section 2.10(j) of the Loan Agreement, the
Guarantor shall use, or cause the Subsidiary to use, fifty
percent (50%) of such excess to prepay the Loans in accordance
with Section 2.10(j) of the Loan Agreement in Dollars in
immediately available funds."
(b) Section 5.06 of the Guarantee Agreement is amended to
change the $30,000,000 figure to $25,000,000.
Section 5. Waiver. Subject to the satisfaction of the conditions
precedent specified in Section 3 above, but effective on and as of the date
hereof, the Lenders hereby waive compliance with the following provisions of the
Guarantee Agreement, through June 30, 2003, or whenever the Loans have been
repaid in full, whichever first occurs:
(a) Section 5.03; provided, however, that this Waiver of
Section 5.03 is limited to the property interests located in Montana
that are to be offered through auction by certain of Guarantor's
Subsidiaries and further provided and on the condition that fifty
percent (50%) of any net proceeds received through the sale of these
property interests shall be paid to the Lenders within thirty (30) days
after receipt of same by Guarantor or Guarantor's Subsidiary, up to an
amount equal to 100% of the then current outstanding loan balance.
(b) Section 5.07; and
(c) Section 5.08.
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 the same may be further amended, supplemented and otherwise
modified and in effect from time to time.
Section 7. Affirmation of Guarantee. The Guarantor affirms (i) that all
references in the Guarantee Agreement to the Loan Agreement (including amounts
from time to time owing
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to the Lenders or the Agent by the Borrower under the Loan Agreement) are to be
construed as references to the Loan Agreement as amended as of the date hereof,
including Amendment No. 5 and Waiver and (ii) that the Guarantor's guarantee
obligations under the Guarantee Agreement remain in full force and effect.
Section 8. Counterparts. This Waiver 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 Waiver by signing any such counterpart.
Section 9. Binding Effect. This Waiver shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
Section 10. Governing Law. This Waiver 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 Waiver to be
duly executed as of the day and year first above written.
"BORROWER"
XX XXXXXX CORPORATION
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
"AGENT"
BNP PARIBAS, as agent for the Lenders
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
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"LENDERS"
BNP PARIBAS
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
NM ROTHSCHILD & SONS LIMITED
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
"GUARANTOR"
CANYON RESOURCES CORPORATION
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
4
EXHIBIT B
Schedule II
Principal Payment Date Principal Payment
---------------------- -----------------
(Last Business Day of the Month)
March 2002 $100,000
April 2002 $100,000
May 2002 $100,000
June 2002 $100,000
July 2002 $275,000
August 2002 $100,000
September 2002 $100,000
October 2002 $100,000
November 2002 $100,000
December 2002 $400,000
January 2003 $441,162
February 2003 $409,340
March 2003 $548,968
April 2003 $307,786
May 2003 $164,410
June 2003 $202,565
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