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EXHIBIT 10.19
$250,000,000
CREDIT AGREEMENT
dated as of February 23, 2001,
among
STILLWATER MINING COMPANY,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO,
as the Lenders,
N M ROTHSCHILD & SONS LIMITED,
as Technical Agent,
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
as Documentation Agent,
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent,
and
TD SECURITIES (USA) INC.,
as the Lead Arranger.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms.........................................................................1
SECTION 1.2. Use of Defined Terms.................................................................37
SECTION 1.3. Cross-References; Interpretation.....................................................37
SECTION 1.4. Accounting and Financial Determinations..............................................37
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments..........................................................................38
SECTION 2.2. Reduction of the Commitment Amounts..................................................39
SECTION 2.3. Borrowing Procedures.................................................................40
SECTION 2.4. Continuation and Conversion Elections................................................40
SECTION 2.5. Funding..............................................................................41
SECTION 2.6. Issuance Procedures..................................................................41
SECTION 2.7. Loan Accounts; Notes.................................................................43
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application..............................................44
SECTION 3.2. Interest Provisions..................................................................48
SECTION 3.3. Fees.................................................................................49
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful...........................................................50
SECTION 4.2. Deposits Unavailable.................................................................50
SECTION 4.3. Increased LIBO Rate Loan Costs, etc..................................................50
SECTION 4.4. Funding Losses.......................................................................51
SECTION 4.5. Increased Capital Costs..............................................................51
SECTION 4.6. Taxes................................................................................52
SECTION 4.7. Payments, Computations, etc..........................................................54
SECTION 4.8. Sharing of Payments..................................................................55
SECTION 4.9. Setoff...............................................................................55
SECTION 4.10. Change of Lending Office.............................................................56
SECTION 4.11. Replacement of Lenders...............................................................56
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension.............................................................57
SECTION 5.2. All Credit Extensions................................................................63
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TABLE OF CONTENTS
(continued)
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.1. Organization, etc....................................................................64
SECTION 6.2. Due Authorization, Non-Contravention, etc............................................64
SECTION 6.3. Government Approval, Regulation, etc.................................................65
SECTION 6.4. Validity, etc........................................................................65
SECTION 6.5. Financial Information................................................................66
SECTION 6.6. No Material Adverse Change...........................................................66
SECTION 6.7. Litigation, Labor Controversies, etc.................................................66
SECTION 6.8. Subsidiaries.........................................................................66
SECTION 6.9. Ownership of Properties..............................................................67
SECTION 6.10. Taxes................................................................................68
SECTION 6.11. Pension and Welfare Plans............................................................68
SECTION 6.12. Environmental Warranties.............................................................68
SECTION 6.13. Accuracy of Information..............................................................70
SECTION 6.14. Regulations U and X..................................................................70
SECTION 6.15. Good Neighbor Agreement..............................................................70
SECTION 6.16. Status of Obligations as Senior Indebtedness, etc....................................71
SECTION 6.17. Mining Rights........................................................................71
SECTION 6.18. Technology...........................................................................71
SECTION 6.19. Supply Contracts.....................................................................72
SECTION 6.20. Labor Matters........................................................................72
SECTION 6.21. Utilities............................................................................72
SECTION 6.22. Solvency.............................................................................72
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants................................................................73
SECTION 7.2. Negative Covenants...................................................................86
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default.........................................................98
SECTION 8.2. Action if Bankruptcy................................................................103
SECTION 8.3. Action if Other Event of Default....................................................103
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions.............................................................................104
SECTION 9.2. Funding Reliance, etc...............................................................105
SECTION 9.3. Exculpation.........................................................................105
SECTION 9.4. Successor...........................................................................105
SECTION 9.5. Loans by the Agents.................................................................106
SECTION 9.6. Credit Decisions....................................................................106
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TABLE OF CONTENTS
(continued)
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SECTION 9.7. Copies, etc.........................................................................106
SECTION 9.8. Reliance by Agents..................................................................107
SECTION 9.9. Defaults............................................................................107
SECTION 9.10. Application of Proceeds.............................................................107
SECTION 9.11. Sub-Agents..........................................................................108
SECTION 9.12. Release of Collateral...............................................................109
SECTION 9.13. Documentation Agent.................................................................109
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc............................................................110
SECTION 10.2. Notices.............................................................................111
SECTION 10.3. Payment of Costs and Expenses.......................................................112
SECTION 10.4. Indemnification.....................................................................112
SECTION 10.5. Survival............................................................................114
SECTION 10.6. Severability........................................................................114
SECTION 10.7. Headings............................................................................114
SECTION 10.8. Execution in Counterparts, Effectiveness, etc.......................................114
SECTION 10.9. Governing Law; Entire Agreement.....................................................114
SECTION 10.10. Successors and Assigns..............................................................115
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes.............115
SECTION 10.12. Other Transactions..................................................................119
SECTION 10.13. Independence of Covenants...........................................................119
SECTION 10.14. Forum Selection and Consent to Jurisdiction.........................................119
SECTION 10.15. Waiver of Jury Trial................................................................120
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SCHEDULES AND EXHIBITS
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages; LIBO Office; Domestic Office
SCHEDULE III - Insurance Threshold Amounts
SCHEDULE IV - Excluded Real Property
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term A Note
EXHIBIT A-3 - Form of Term B Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of Counterparty Notice
EXHIBIT F-2 - Form of Supply Contract Counterparty Notice
EXHIBIT G - Form of Borrower Security Agreement
EXHIBIT H - Form of Subsidiary Security Agreement
EXHIBIT I - Form of Mortgage
EXHIBIT J - Form of Subsidiary Guaranty
EXHIBIT K - Form of Intercompany Subordination Agreement
EXHIBIT L - Form of Lender Assignment Agreement
EXHIBIT M - Form of Officer's Solvency Certificate
EXHIBIT N-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT N-2 - Form of Title Opinion
EXHIBIT N-3 - Form of Opinion of Montana Counsel
to the Obligors
EXHIBIT O - Form of Officer's Certificate
EXHIBIT P - Form of Mining Consultant's Certificate
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 23, 2001, is among
STILLWATER MINING COMPANY, a Delaware corporation (the "Borrower"), the various
financial institutions from time to time parties hereto (the "Lenders"), N M
ROTHSCHILD & SONS LIMITED ("Rothschild"), as technical agent (in such capacity,
the "Technical Agent"), WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
as documentation agent (in such capacity, the "Documentation Agent"), TORONTO
DOMINION (TEXAS), INC. ("TD"), as administrative agent (in such capacity, the
"Administrative Agent"), and TD SECURITIES (USA) INC. ("TDSI"), as lead
arranger.
WITNESSETH:
WHEREAS, the Borrower is engaged in the development, extraction,
processing and refining of palladium, platinum, and associated metals from the
X-X Reef (capitalized terms used in these recitals and not defined in these
recitals to have the meanings set forth in Section 1.1 below);
WHEREAS, the Borrower will continue the expansion of the underground
mining complex (the "Nye Mine") in Nye, Montana (the "Xxx Project") and continue
the construction of the underground mining complex (the "East Boulder Mine";
each of the Nye Mine and the East Boulder Mine, a "Mine" and, collectively, the
"Mines") within thirty-five miles of Big Timber, Montana (the "East Boulder
Project") and will continue the expansion of its processing facilities at
Columbus, Montana (the expansion of the processing facilities at Columbus,
Montana, together with the Nye Project and the East Boulder Project, the
"Project"), in each case, in accordance with the Mine Plans; and
WHEREAS, the Lenders and the Issuers are willing, on the terms and
subject to the conditions hereinafter set forth, to extend the Commitments and
make Loans to the Borrower and issue (or participate in) Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) 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):
"Acquisition" means the acquisition, by purchase or otherwise, of all
or substantially all of the assets (or any part of the assets constituting all
or substantially all of a business or line of business) of any Person, whether
such acquisition is direct or indirect, including through the acquisition of the
business of, or Capital Stock of, such Person.
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"Additional Claims" is defined in Section 6.9(b).
"Administrative Agent" is defined in the preamble and includes each
other Person appointed as the successor Administrative Agent pursuant to Section
9.4.
"Affected Lender" is defined in Section 4.11.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. "Control" of a Person means the power, directly or indirectly,
(a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors,
managing members or general partners (as applicable); or
(b) to direct or cause the direction of the management and
policies of such Person (whether by contract or otherwise).
"Agents" means, unless the context requires otherwise, the
Administrative Agent and the Technical Agent.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter amended, supplemented, amended
and restated or otherwise modified from time to time and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum (rounded upward, if
necessary, to the next highest 1/16 of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of
1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrower
and the Lenders of changes in the Alternate Base Rate; provided that the failure
to give such notice shall not affect the Alternate Base Rate in effect after
such change.
"Annual Palladium Production" means, with respect to any calendar year
ending on December 31 of such year, the Palladium Production for such year.
"Annual Platinum Production" means, with respect to any calendar year
ending on December 31 of such year, the Platinum Production for such year.
"Annualized Basis" means, with respect to the determination of any
amount for any period (for purposes of this definition, the "Subject Period"),
the product obtained by multiplying
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(a) the amount accrued during the period (i) commencing with
(and including) the Closing Date, in the case of determining Interest
Expense for purposes of clause (b)(i) of the definition of "Debt
Service Coverage Ratio", or the date the relevant Force Majeure Event
ceases to exist, in the case of determining palladium and platinum
production levels for purposes of Section 8.1.14, and (ii) ending (and
including) the last day of the Subject Period
times
(b) the quotient obtained by dividing (i) 365 by (ii) the
number of days (A) commencing with (and including) the Closing Date, in
the case of determining Interest Expense for purposes of clause (b)(i)
of the definition of "Debt Service Coverage Ratio", or the date the
relevant Force Majeure Event ceases to exist, in the case of
determining palladium and platinum production levels for purposes of
Section 8.1.14, and (B) ending (and including) the last day of the
Subject Period.
"Applicable Commitment Fee" means at all times, with respect to the
fee payable pursuant to Section 3.3.1, 50 basis points per annum.
"Applicable Margin" means at all times during the applicable periods
set forth below:
(a) with respect to Revolving Loans and Term A Loans, from the
Effective Date to (but excluding) the date upon which a Compliance
Certificate pursuant to clause (c) of Section 7.1.1 for the second full
Fiscal Quarter to have commenced and ended after the Effective Date is
delivered by the Borrower to the Administrative Agent, with respect to
the unpaid principal amount of each
(i) Revolving Loan and Term A Loan maintained as a
Base Rate Loan, 1.50% per annum; and
(ii) Revolving Loan and Term A Loan maintained as a
LIBO Rate Loan, 2.50% per annum;
(b) with respect to Revolving Loans and Term A Loans, at all
times from the date upon which the Compliance Certificate described in
the immediately preceding clause (a) is delivered, with respect to the
unpaid principal amount of each Revolving Loan and Term A Loan, the
rate determined by reference to the applicable Debt to EBITDA Ratio and
at the applicable percentage per annum set forth below under the column
entitled "Applicable Margin for Base Rate Loans", in the case of such
Loans made or maintained as Base Rate Loans, or by reference to the
applicable Debt to EBITDA Ratio and at the applicable percentage per
annum set forth below under the column entitled "Applicable Margin for
LIBO Rate Loans", in the case of such Loans made or maintained as LIBO
Rate Loans:
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Applicable Margin for
Debt to EBITDA LIBO Rate Applicable Margin for
Ratio Loans Base Rate Loans
--------------------------- ---------------------- ---------------------
< 1.50:1 200.0 bps 100.0 bps
> or = to 1.50:1 and < 2.0:1 212.5 bps 112.5 bps
> or = to 2.0:1 and < 2.50:1 225.0 bps 125.0 bps
> or = to 2.50:1 237.5 bps 137.5 bps
(c) with respect to Term B Loans, at all times, 225 basis
points, in the case of Term B Loans maintained as Base Rate Loans, and
325 basis points, in the case of Term B Loans maintained as LIBO Rate
Loans.
The Debt to EBITDA Ratio used to compute the Applicable Margin for Revolving
Loans and Term A Loans shall be the Debt to EBITDA Ratio set forth in the
Compliance Certificate most recently delivered by the Borrower to the
Administrative Agent; changes in the Applicable Margin resulting from a change
in the Debt to EBITDA Ratio shall become effective upon delivery by the Borrower
to the Administrative Agent of a new Compliance Certificate pursuant to clause
(c) of Section 7.1.1. If the Borrower shall fail to deliver a Compliance
Certificate within 45 days after the end of any Fiscal Quarter (or within 90
days, in the case of the last Fiscal Quarter of the Fiscal Year), the Applicable
Margin from and including the 46th (or 91st, as the case may be) day after the
end of such Fiscal Quarter to, but not including, the date that the Borrower
delivers to the Administrative Agent a Compliance Certificate shall conclusively
equal the highest Applicable Margin set forth above.
"Assignee Lender" is defined in Section 10.11.1.
"Assignment Threshold" means (a) with respect to a proposed assignment
and delegation of Term A Loans and Term A Loan Commitments and/or Revolving
Loans, Revolving Loan Commitments and related participations in Letters of
Credit and Letter of Credit Outstandings to an Assignee Lender, an amount equal
to $5,000,000; provided that the amount of any such assignment and delegation
may be less than $5,000,000 so long as (i) the Administrative Agent consents to
such lesser amount and (ii) after giving effect to such assignment and all other
assignments to be made substantially concurrently therewith to such Assignee
Lender or Related Funds of such Assignee Lender, such Assignee Lender or Related
Funds of such Assignee Lender shall hold Term A Loans, Term A Loan Commitments
and Revolving Loan Commitments in an aggregate amount of at least $5,000,000 (or
such lesser amount as may be agreed to by the Borrower and the Administrative
Agent), and (b) with respect to a proposed assignment and delegation of Term B
Loans and Term B Loan Commitments to an Assignee Lender, an amount equal to
$1,000,000 (or such lesser amount as may be agreed to by the Borrower and the
Administrative Agent); provided that the amount of any such assignment may be
less than $1,000,000 so long as after giving effect to such assignment and all
other assignments to be made substantially concurrently therewith to such
Assignee Lender, such Assignee Lender or Related Funds of such Assignee Lender
shall hold Term B Loans or Term B Loan Commitments in an aggregate amount of at
least $1,000,000 (or such lesser amount as may be agreed to by the Borrower and
the Administrative Agent).
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"Authorized Officer" means, relative to any Obligor, those of its
officers, general parties or managing members (as applicable) whose signatures
and incumbency shall have been certified to the Administrative Agent, the
Lenders and the Issuers pursuant to Section 5.1.1.
"Base Rate" means, at any time, the rate of interest then most
recently established by the Administrative Agent in New York as its base rate
for U.S. dollars loaned in the United States. The Base Rate is not necessarily
intended to be the lowest rate of interest determined by the Administrative
Agent in connection with extensions of credit.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
"Borrower Security Agreement" means the Security and Pledge Agreement
executed and delivered by the Borrower for the benefit of the Secured Parties
pursuant to the terms of this Agreement substantially in the form of Exhibit G
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by all Lenders required to make
such Loans on the same Business Day and pursuant to the same Borrowing Request
in accordance with Section 2.3.
"Borrowing Request" means a Loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
B-1 hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York, Denver, Colorado or Houston Texas; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day which is a Business Day described in
clause (a) above and which is also a day on which dealings in Dollars
are carried on in the interbank eurodollar market of the Administrative
Agent's LIBOR Office.
"Capital Expenditures" means, for any period, the aggregate amount of
all expenditures of the Borrower and its Subsidiaries for fixed or capital
assets (including, and together with, capitalized mine development) made during
such period which, in accordance with GAAP, would be classified as capital
expenditures.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital, whether now outstanding or
issued after the Effective Date.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which have been (or, in accordance
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with GAAP, should be) classified as capitalized leases, and for purposes of each
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 premium or a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or unconditionally guaranteed
by) the United States of America or a State thereof (or any agency or
political subdivision thereof, to the extent such obligations are
supported by the full faith and credit of the United States of America
or a State thereof) maturing not more than one year after such time;
(b) commercial paper maturing not more than 270 days from the
date of issue, which is issued by
(i) a corporation (other than an Affiliate of any
Obligor) organized under the laws of any State of the United
States or of the District of Columbia and rated A-1 or higher
by S&P or P-1 or higher by Xxxxx'x,
(ii) any Lender (or its holding company) and rated
A-1 or higher by S&P or P-1 or higher or Xxxxx'x, or
(iii) the Administrative Agent (or its holding
company);
(c) any certificate of deposit, time deposit or bankers
acceptance, maturing not more than one year after its date of issuance,
which is issued by
(i) any bank organized under the laws of the United
States (or any State thereof) and which has (x) a credit
rating of A2 or higher from Xxxxx'x or A or higher from S&P
and (y) a combined capital and surplus greater than
$500,000,000,
(ii) any Lender which has (x) a credit rating of A2
or higher from Xxxxx'x or A or higher from S&P and (y) a
combined capital and surplus greater than $500,000,000, or
(iii) the Administrative Agent; or
(d) any repurchase agreement having a term of 30 days or less
entered into with the Administrative Agent or any Lender or commercial
banking institution satisfying the criteria set forth in clause (c)
which
(i) is secured by a fully perfected security interest
in any obligation of the type described in clause (a), and
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(ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution
thereunder.
"Casualty Event" means the damage, destruction, condemnation, taking,
seizing or similar event, as the case may be, of any property of the Borrower or
any of its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as amended
(including as amended by the Superfund Amendments and Reauthorization Act of
1986, Pub. L. 99-499, 100 Stat. 1613).
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) the failure of the Borrower at any time to directly or
indirectly own beneficially and of record on a fully diluted basis a
sufficient number of the issued and outstanding Capital Stock of its
Subsidiaries to have and exercise voting power for the election of at
least a majority of the board of directors or other managing body of
its Subsidiaries, such Capital Stock to be held free and clear of all
Liens (other than Liens granted under the Loan Documents); or
(b) at any time any Person, or Persons acting in concert,
shall become the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of Voting Stock
representing more than 30% of the Voting Stock of the Borrower or any
Subsidiary; or
(c) during any period of 24 consecutive months, individuals
who at the beginning of such period constituted the Board of Directors
of the Borrower (together with any new directors whose election to such
Board or whose nomination for election by the stockholders of the
Borrower, as the case may be, was approved by a vote of 66 2/3% of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute 50% of
the Board of Directors of the Borrower then in office; or
(d) the occurrence of any "Change of Control" (or similar
term) under (and as defined in) any instrument, agreement or document
evidencing terms relating to any Indebtedness of the Borrower or any
Subsidiary.
"Closing Date" is defined in Section 5.1.
"Closing Date Certificate" means the closing date certificate executed
and delivered by the Borrower pursuant to the terms of this Agreement,
substantially in the form of Exhibit D hereto.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
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"Commitment" means, as the context may require, a Lender's Term A Loan
Commitment, Term B Loan Commitment, Revolving Loan Commitment or Letter of
Credit Commitment.
"Commitment Amount" means, as the context may require, the Term A Loan
Commitment Amount, the Term B Loan Commitment Amount, the Revolving Loan
Commitment Amount or the Letter of Credit Commitment Amount.
"Commitment Letter" means the confidential letter, dated December 1,
2000, from TDSI to the Borrower.
"Commitment Termination Date" means, as the context may require, the
Term A Loan Commitment Termination Date, Term B Loan Commitment Termination Date
or the Revolving Loan Commitment Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default with respect to the
Borrower described in clauses (a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of all or any portion of the
Loans to be due and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the
Borrower that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by the chief financial or accounting Authorized Officer of the
Borrower, substantially in the form of Exhibit E hereto, together with such
changes thereto as the Administrative Agent may from time to time request for
the purpose of monitoring the Borrower's compliance with the financial covenants
contained herein.
"Construction Contract" means any agreement entered into between the
Borrower or a Subsidiary and a Contractor relating to the design, engineering or
construction of the Project which is filed with, or would be required to be
filed with, the SEC as a "material contract" (as such term is described in
Regulation S-K of the Securities Act of 1933).
"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 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
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limitation set forth therein) be deemed to be the outstanding principal amount
of the debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Contractor" means each Person (other than the Borrower) party to a
Construction Contract.
"Controlled Group" means all members of a 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.
"Copyright Security Agreement" means any Copyright Security Agreement
executed and delivered by any Obligor for the benefit of the Secured Parties in
substantially the form of Exhibit D to any Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Counterparty Notice" means any duly completed notice from the Borrower
in the form of Exhibit F-1 attached hereto.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of
any Stated Expiry Date of any existing Letter of Credit, by an Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Assets" means the total assets which would properly be
classified as consolidated current assets of the Borrower and its Subsidiaries
in accordance with GAAP.
"Current Liabilities" means the total liabilities which would properly
be classified as consolidated current liabilities of the Borrower and its
Subsidiaries (other than the current portion of Indebtedness of the Borrower and
its Subsidiaries that matures more than one year from the date of its creation
(including the Loans) or matures within one year from such date and is renewable
or extendable, at the option of the Borrower or one of its Subsidiaries, to a
date more than one year from such date or arises under a revolving credit or
similar agreement (including this Agreement) that obligates the lender or
lenders thereunder to extend credit during a period of more than one year from
such date).
"Debt" means the outstanding principal amount of all Indebtedness of
the Borrower and its Subsidiaries of the nature referred to in clauses (a), (b),
(c), (g), (h) and (i) of the definition of Indebtedness; provided, however, that
Indebtedness in respect of reclamation bonds, surety
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15
bonds, performance bonds and appeal bonds and letters of credit issued in lieu
of such bonds (other than Letters of Credit issued under this Agreement which
shall constitute dollar for dollar "Debt" for all purposes hereunder) shall
constitute "Debt" only to the extent, and in the amount that, the aggregate face
amount of all such reclamation bonds, surety bonds, performance bonds, appeal
bonds and letters of credit issued on behalf of the Borrower and its
Subsidiaries and outstanding at the time of determination exceeds $20,000,000.
"Debt Service Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) EBITDA for the four consecutive Fiscal Quarters ending on
the last day of such Fiscal Quarter,
to
(b) the sum of
(i) all Interest Expense payments made during the
four consecutive Fiscal Quarters ending on the last day of
such Fiscal Quarter (provided that, in the event the
applicable four-Fiscal-Quarter period would include any period
of time prior to the Closing Date, Interest Expense for the
purposes of this clause (b)(i) shall be determined on an
Annualized Basis);
plus
(ii) scheduled repayments of the principal of
outstanding Debt (including Capitalized Lease Liabilities)
made during the four consecutive Fiscal Quarters ending on the
last day of such Fiscal Quarter.
"Debt to EBITDA Ratio" means, at any time, the ratio of
(a) Debt outstanding at such time
to
(b) EBITDA computed for the period consisting of the four
consecutive Fiscal Quarters ending on the last day of the most recent
Fiscal Quarter with respect to which the Administrative Agent has
received the financial statements required to be delivered to it
pursuant to Section 7.1.1.
"Debt to Equity Ratio" means, at any time, the ratio of
(a) Debt outstanding at such time
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16
to
(b) Shareholders' Equity as of the last day of the most recent
Fiscal Quarter with respect to which the Administrative Agent has
received the financial statements required to be delivered to it
pursuant to Section 7.1.1.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Deferred Capital Expenditures" is defined in Section 7.2.7.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the written consent of
the Required Lenders.
"Discount Rate" means, in connection with the calculation during any
Fiscal Year of the present value of the minimum future lease payments described
in Section 7.2.18, the sum of (i) the yield to maturity implied by the Treasury
Constant Maturity Series yields for the latest day of the Fiscal Year
immediately preceding such Fiscal Year, in Federal Reserve Statistical release
H.15 (519) (or any comparable successor publication) for actively traded U.S.
Treasury Securities having a constant maturity equal to five years as of the
last day of such Fiscal Year plus (ii) 280 basis points. Such yield shall be
determined, if necessary, by (a) converting U.S. Treasury xxxx quotations to
bond-equivalent yields in accordance with accepted financial practice and (b)
interpolating linearly between yields reported for various maturities.
"Disposition" (or correlative words such as "Dispose") means any sale,
transfer, lease, contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of the
Borrower's or its Subsidiaries' assets (including accounts receivables and
Capital Stock of Subsidiaries) to any other Person in a single transaction or
series of transactions.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such Lender's "Domestic Office" set forth opposite its name
on Schedule II hereto or in a Lender Assignment Agreement, or such other office
of a Lender (or any successor or assign of such Lender) within the United States
as may be designated from time to time by notice from such Lender, as the case
may be, to each other Person party hereto.
"Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
"East Boulder Mine" is defined in the recitals.
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17
"East Boulder Project" is defined in the recitals.
"EBITDA" means, for the Borrower and its Subsidiaries, for any
applicable period, the sum (without duplication) of
(a) Net Income,
plus
(b) the amount deducted by the Borrower and its Subsidiaries,
in determining Net Income, representing Interest Expense,
plus
(c) the amount deducted, in determining Net Income, of all
federal, state, local and foreign income taxes (whether paid in cash or
deferred) of the Borrower and its Subsidiaries,
plus
(d) the amount deducted, in determining Net Income,
representing non-cash charges, including depreciation, depletion and
amortization of assets of the Borrower and its Subsidiaries,
plus
(e) with respect to any such period which includes a Fiscal
Quarter of the 2000 Fiscal Year, the aggregate amount deducted with
respect to all Fiscal Quarters of the 2000 Fiscal Year included in such
period in determining Net Income, as a result of the change in
accounting principles arising from implementation of Staff Accounting
Bulletin (SAB) No. 101, Revenue Recognition in Financial Statements,
provided that the aggregate amount added to Net Income for all such
Fiscal Quarters pursuant to this clause (e) during the term of this
Agreement does not exceed $8,500,000,
minus
(f) the amount added, in determining Net Income, representing
non-cash gains.
"Economic Development Revenue Bond Resolution" means Resolution No.
191, dated as of March 3, 2000, as adopted by the Board of Investments of the
State of Montana.
"Economic Development Revenue Bond Tax Event" is defined in the
definition of "Permitted Revenue Bond Indebtedness".
"Economic Development Revenue Bonds" means the Economic Development
Revenue Bonds sold and issued by the State of Montana pursuant to and as
described in the Economic Development Revenue Bond Resolution.
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"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Eligible Assignee" means and includes each Lender (and any Affiliate
thereof), any commercial bank, any financial institution, any fund that is
regularly engaged in making, purchasing or investing in loans or any Person that
would satisfy the requirements of an "accredited investor" (as defined in SEC
Regulation D), but excluding a natural person.
"Environmental Laws" means all applicable laws relating to public
health and safety, pollution and protection of the environment, including laws
relating to reclamation of land and waterways and laws relating to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes (including any
petroleum product) into the environment (including ambient air, surface water,
ground water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or industrial,
toxic or hazardous substances or wastes (including any petroleum product).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto 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 thereto.
"Event of Default" is defined in Section 8.1.
"Evergreen" means Evergreen, Inc., a Montana corporation.
"Excess Cash Flow" means, for any Fiscal Quarter, the excess (if any)
of:
(a) the sum (for such Fiscal Quarter), without duplication, of
(i) Net Income,
plus
(ii) the amount deducted, in determining such Net
Income, representing non-cash charges, including depreciation,
depletion and amortization of assets of the Borrower and its
Subsidiaries,
plus
(iii) the amount deducted, in determining such Net
Income, of all deferred federal, state, local and foreign
income taxes of the Borrower and its Subsidiaries,
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plus
(iv) the amount deducted, in determining such Net
Income, representing a charge against income in respect of the
termination of a Hedging Agreement during a Fiscal Quarter
that preceded such Fiscal Quarter,
plus
(v) the amount received in cash by the Borrower or
any Subsidiary in respect of the termination of a Hedging
Agreement, to the extent such amount was not included in the
determination of such Net Income,
plus
(vi) the net decrease (if any) in Net Working
Capital,
minus
(vii) the amount paid in cash by the Borrower or any
Subsidiary in respect of the termination of a Hedging
Agreement, to the extent such amount was not included in the
determination of Net Income for such Fiscal Quarter,
minus
(viii) the amount added, in determining such Net
Income, representing deferred income in respect of the
termination of a Hedging Agreement during a Fiscal Quarter
that preceded such Fiscal Quarter,
plus or minus, as the case may be,
(ix) in the case such Fiscal Quarter is the last
Fiscal Quarter of a Fiscal Year, the net amount of all
adjustments to the amounts determined pursuant to the
preceding clauses (i) through (vi) or the succeeding clause
(b) for the preceding three Fiscal Quarters resulting from the
audit described in clause (b) of Section 7.1.1,
over
(b) the sum (for such Fiscal Quarter), without duplication, of
(i) $60,000,000
plus
(ii) the net increase (if any) in Net Working
Capital.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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20
"Excluded Real Property" means the real property known as the
"Cathedral Mountain Ranch" and the "Circle T Ranch", as more specifically
described on Schedule IV hereto.
"Exemption Certificate" is defined in clause (e) of Section 4.6.
"Existing Credit Facility" means the credit facilities provided for in
the Credit Agreement dated as of March 10, 1999, among the Borrower, various
financial institutions party thereto, and The Bank of Nova Scotia, as
administrative agent for such institutions, as amended or otherwise modified
through the date hereof.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by TD from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means the confidential letter, dated December 1, 2000,
from TDSI to the Borrower, as such letter may be amended or otherwise modified
from time to time in accordance with the terms thereof.
"Fiscal Quarter" means a quarter ending on the last day of March, June,
September or December.
"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 "2000 Fiscal Year") refer to the Fiscal Year
ending on December 31 of such calendar year.
"Force Majeure Event" is defined in Section 7.2.1.
"Ford" means Ford Motor Company, a Delaware corporation.
"Ford Supply Contract" means the Palladium Sales Agreement, made and
entered into on August 13, 1998, as amended by the First Amendment Agreement to
the Palladium Sales Agreement, dated as of October 27, 2000, by and between the
Borrower and Ford.
"Foreign Pledge Agreement" means, collectively, each Security Agreement
executed and delivered by the Borrower for the benefit of the Secured Parties
pursuant to the Borrower Security Agreement pledging (or confirming under
applicable law the pledge of) the Borrower's Capital Stock in a Foreign
Subsidiary to the Administrative Agent for the benefit of the Secured Parties,
in a form satisfactory to the Administrative Agent, in each case, as amended,
supplemented, amended and restated or otherwise modified from time to time.
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"Foreign Subsidiary" means any Subsidiary of the Borrower (a) which is
organized under the laws of any jurisdiction outside of the United States, (b)
which conducts the major portion of its business outside of the United States
and (c) all or substantially all of the property and assets of which are located
outside of the United States.
"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.
"GM" means General Motors Corporation, a Delaware corporation.
"GM Supply Contract" means the Palladium and Platinum Sales Agreement,
made and entered into on August 17, 1998, as amended by the First Amendment
Agreement to the Palladium and Platinum Sales Agreement, dated as of November
20, 2000, by and between the Borrower and GM.
"Good Neighbor Agreement" means the Good Neighbor Agreement dated as of
May 8, 2000, by and among the Borrower, Northern Plains Resource Council, a
Montana not-for-profit corporation, Cottonwood Resource Council, a Montana
not-for-profit corporation and Stillwater Protective Association, a Montana
not-for-profit corporation.
"Governmental Authority" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantor" means each Subsidiary that has executed and delivered to
the Administrative Agent, for the benefit of the Secured Parties, a Subsidiary
Guaranty.
"Hazardous Material" means any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance (including any petroleum
product) within the meaning of any Environmental Law relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, including each of the following:
(a) those substances included within the definitions of
"hazardous substances", "hazardous materials", "toxic substances" or
"solid waste" in CERCLA, the Resource Conservation and Recovery Act and
the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101, et
seq.;
(b) those substances listed in the United States Department of
Transportation Table (49 CFR 172.101) or by the Environmental
Protection Agency as hazardous substances (40 CFR Part 302); and
(c) any material, waste or substance which is designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act,
33 U.S.C. Section 1251, et seq. or listed pursuant to Section 307 of
the Clean Water Act, 33 U.S.C. Section 1317.
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22
"Hedging Agreements" means, collectively, currency exchange agreements,
commodity swaps, exchange or futures agreements, interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, commodity hedging
agreements, forward agreements and all other agreements or arrangements designed
to protect a Person against fluctuations in interest rates, currency exchange
rates or commodity prices.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under Hedging Agreements.
"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" and "include" mean including without limiting the
generality of any description preceding such term, and, for 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.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or
borrowed metals and all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(b) (i) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, performance bonds,
reclamation bonds, surety bonds, appeal bonds and similar obligations,
in each case whether or not drawn, and (ii) banker's acceptances issued
for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
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(d) for purposes of Section 8.1.5 only, 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 (it being understood and agreed that net liabilities (if
any) of the Borrower under the Supply Contracts shall not constitute
Indebtedness for purposes of this Agreement);
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services excluding trade accounts payable in the
ordinary course of business which are not overdue for a period of more
than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of such Person, and indebtedness secured by
(or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on property owned or
being acquired by such Person (including indebtedness 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;
(g) obligations arising under Synthetic Leases of such Person;
(h) Redeemable Capital Stock of such Person; and
(i) 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 Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Initial Supply Contacts" means the GM Supply Contract, the Ford Supply
Contract and the Mitsubishi Supply Contract, in each case as attached to the
Closing Date Certificate.
"Insured Peril" is defined in Section 7.1.4.
"Intercompany Subordination Agreement" means the Subordination
Agreement, substantially in the form of Exhibit K hereto, executed and delivered
by two or more Obligors pursuant to the terms of this Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense of the Borrower and its Subsidiaries for such
period, as determined in accordance with GAAP, including (i) commitment fees
paid or owed with respect to the then unutilized portion of
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any Commitment Amount, (ii) all other fees paid or owed with respect to the
issuance or maintenance of Contingent Liabilities (including letters of credit),
which, in accordance with GAAP, would be included as interest expense, (iii) the
portion of any payments made in respect of Capitalized Lease Liabilities of the
Borrower and its Subsidiaries allocable to interest expense and (iv) interest
costs which have been capitalized in accordance with GAAP.
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in its relevant notice pursuant to Section 2.3 or 2.4;
provided, however, that
(a) 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;
(b) if such Interest Period 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 next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan, advance or extension of credit made by such
Person to any other Person, including the purchase by such Person of
any bonds, notes, debentures or other debt securities of any other
Person (excluding commission, travel, xxxxx cash and similar advances
to officers and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any Capital Stock 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 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 at the time of such Investment.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of Exhibit B-2 hereto.
"Issuer" means TD in its capacity as Issuer of the Letters of Credit.
At the request of TD and with the Borrower's consent (not to be unreasonably
withheld), another Lender or an Affiliate of TD may issue one or more Letters of
Credit hereunder.
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"X-X Reef" means an extensive mineralized zone containing platinum
group metals located in Stillwater and Sweet Grass Counties, Montana.
"Key Unpatented Claims" is defined in Section 6.9(b).
"Lender Assignment Agreement" means an assignment agreement
substantially in the form of Exhibit L hereto.
"Lender Default" means (i) the refusal (which has not been retracted)
or other failure of a Lender to make available its portion of any Borrowing or
to fund its portion of any unreimbursed payment under Section 2.6.1 when each
other Lender under the relevant Tranche that is not an Affiliate of such Lender
has not so refused or failed to make available or fund its portion of such
Borrowing or payment or (ii) a Lender having notified the Borrower and/or the
Administrative Agent in writing that it does not intend to comply with its
obligations under Section 2.1 or 2.6.1 when no other Lender under the relevant
Tranche that is not an Affiliate of such Lender has issued any such notification
which is then in effect, including in the case of either clause (i) or (ii) as a
result of any takeover of such Lender by any regulatory authority or agency.
"Lender Hedging Agreement" means any Hedging Agreement entered into by
the Borrower or any of its Subsidiaries with respect to which the counterparty
to such agreement is (or, at the time such agreement was entered into, was) a
Lender or an Affiliate of a Lender, so long as a fully executed copy of such
Hedging Agreement has been provided to the Administrative Agent within five
Business Days of the effectiveness thereof.
"Lenders" is defined in the preamble and, in addition, shall include
any Person that becomes a Lender pursuant to Section 10.11.1.
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential damages),
disbursements or expenses of any kind or nature whatsoever (including reasonable
attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against the Technical Agent,
the Administrative Agent, any Lender or any Issuer or any of such Person's
Affiliates, shareholders, directors, officers, employees, and agents in
connection with or arising from:
(a) any Hazardous Material on, in, under or affecting all or
any portion of any property of the Borrower or any of its Subsidiaries,
the groundwater thereunder, or any surrounding areas thereof to the
extent caused by Releases from the Borrower's or any of its
Subsidiaries' or any of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any
warranty contained or referred to in Section 6.12;
(c) any violation or claim of violation by the Borrower or any
of its Subsidiaries of any Environmental Laws; or
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(d) the imposition of any lien for damages caused by, or the
recovery of any costs for, the cleanup, release or threatened release
of Hazardous Material by the Borrower or any of its Subsidiaries, or in
connection with any property owned or formerly owned by the Borrower or
any of its Subsidiaries.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means, with respect to an Issuer, such
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.2 and,
with respect to each Revolving Loan Lender, the obligations of each such Lender
to participate in such Letters of Credit pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $10,000,000, as such amount may be permanently reduced from time to
time pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"LIBO Rate" means, with respect to any Interest Period for LIBO Rate
Loans, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period in an amount approximately equal to the principal amount of
the LIBO Rate Loans requested by the Borrower with such Interest Period. In the
event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such LIBO Rate Loan for such Interest Period shall
be the average rate (rounded upwards, if necessary, to the next 1/16 of 1%) at
which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered to the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to LIBO Rate (Reserve Adjusted).
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"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
-----------------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect two Business Days before the first day of such Interest
Period.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "LIBOR Office" set forth opposite its name on
Schedule II hereto or in a Lender Assignment Agreement, or such other office of
a Lender as designated from time to time by notice from such Lender to the
Borrower and the Administrative Agent, whether or not outside the United States,
which shall be making or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of or including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"Loan Documents" means, collectively, this Agreement, each Note, the
Letters of Credit, each Lender Hedging Agreement, the Commitment Letter, the Fee
Letter, each agreement pursuant to which the Administrative Agent, for the
benefit of the Secured Parties, is granted a Lien to secure the Obligations
(including each Security Agreement and each Mortgage) and each other agreement,
certificate, document or instrument delivered in connection with this Agreement
or such other Loan Documents, whether or not specifically mentioned herein or
therein.
"Loans" means, as the context may require, a Revolving Loan, a Term A
Loan or a Term B Loan, of any type.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, condition (financial or otherwise), operations or prospects of
the Borrower or the Borrower and its Subsidiaries taken as a whole, (ii) the
rights and remedies of any Secured Party under any
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Loan Document or (iii) the ability of any Obligor to perform its Obligations
under any Loan Document.
"Material Supply Contract Counterparty" means each of GM, Ford and
Mitsubishi and each other Person which enters into a Material Supply Contract
with the Borrower or any Subsidiary.
"Material Supply Contracts" means, collectively, (i) each Initial
Supply Contract and (ii) each contract pursuant to which the Borrower agrees to
deliver 10% or more of the Borrower's Annual Palladium Production or Annual
Platinum Production, as the case may be.
"Mine" and "Mines" is defined in the recitals.
"Mine Plan" means, with respect to any Mine (including related
downstream facilities such as the processing facilities in Columbus, Montana), a
five-year plan prepared by the Borrower setting forth, inter alia, annual
operating and capital budgets; proposed construction, development, operation and
closing of such Mine and any rehabilitation or reclamation work related thereto;
exploitation, treatment, production, marketing and sale of all metals recovered
from such Mine; and all administrative, technical, financial and commercial
activities related thereto; provided that the initial year of each Mine Plan
shall be separated into quarterly periods. Each Mine Plan shall be updated
annually, in each case in accordance with clause (j) of Section 7.1.1; a Mine
Plan may not otherwise be updated for purposes of determinations made under this
Agreement and the other Loan Documents unless otherwise consented to by the
Required Lenders.
"Mining Consultant" means Xxxxx Xxxxxxx & Company, Inc., or such other
consultant as the Technical Agent and Administrative Agent may, with the
approval of the Required Lenders and the Borrower (which approval shall not be
unreasonably withheld), engage on behalf of the Lenders in connection with the
Project, including without limitation to assist the Technical Agent, the
Administrative Agent and the Lenders in conducting due diligence, to examine the
Mine Plans and specifications of the Project, all construction budgets and
schedules, any proposed changes in such Mine Plans and specifications or budgets
and schedules (including cost breakdowns and estimates), to make periodic
inspections of the work of construction of the Project on behalf of the Lenders,
to confirm compliance with Environmental Laws and to advise and render reports
to the Technical Agent, the Administrative Agent and the Lenders concerning the
same.
"Mining Rights" means all interests in the surface of any lands, the
minerals in (or that may be extracted from) any lands, all royalty agreements,
water rights, patented and unpatented mining and millsite claims, fee interests,
mineral leases, mining licenses, profits-a-prendre, joint ventures and other
leases, rights-of-way, inurements, licenses and other rights and interests used
by or necessary to the Borrower to construct, develop and operate the Mines,
including, all rights to and interest in claims covering substantially all of
the identified platinum-group-metals mineralized zone of the X-X Reef.
"Mitsubishi" means Mitsubishi Corporation, a Japanese corporation.
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"Mitsubishi Supply Contract" means the Palladium and Platinum Sales
Agreement, made and entered into on August 27, 1998, by and between the Borrower
and Mitsubishi.
"Monthly Payment Date" means the last day of each calendar month, or if
any such day is not a Business Day, the next succeeding Business Day.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means each mortgage, deed of trust or agreement executed and
delivered by any Obligor in favor of the Administrative Agent for the benefit of
the Secured Parties pursuant to the requirements of this Agreement in
substantially the form of Exhibit I hereto (with such changes as may be
necessary for filing or enforcement thereof in the state where the real property
and fixtures subject thereto are located), under which a Lien is granted on the
real property and fixtures described therein, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Net Casualty Proceeds" means, with respect to any Casualty Event
occurring after the date hereof, the amount of any insurance proceeds or
condemnation or similar awards received by the Borrower or any of its
Subsidiaries (or the Administrative Agent pursuant to any loss payee or similar
provision) in connection therewith, but excluding (i) any proceeds or awards
required to be paid to a creditor (other than any Secured Party) which holds a
first-priority Lien permitted by Section 7.2.3 on the property which is the
subject of such Casualty Event, (ii) any reasonable and customary costs, fees
and expenses actually incurred in connection with the obtaining of such proceeds
or awards which have been paid or are payable and (iii) any taxes actually paid
or estimated by such Person (in good faith) to be payable in cash in connection
with any adjustment or settlement in respect of such proceeds or awards;
provided, however, that if, after the payment of all taxes with respect to such
adjustment or settlement, the amount of estimated taxes, if any, pursuant to
clause (iii) above exceeded the tax amount actually paid in cash in respect of
such adjustment or settlement, the aggregate amount of such excess shall, at
such time, constitute Net Casualty Proceeds.
"Net Disposition Proceeds" means the excess of
(a) the gross cash proceeds received by the Borrower or any of
its Subsidiaries from any sale, transfer or conveyance of assets
permitted pursuant to clause (b) of Section 7.2.11 (collectively
referred to herein for purposes of this definition as a "permitted
disposition") and any cash payments received in respect of promissory
notes or other non-cash consideration delivered to the Borrower or such
Subsidiary in respect of any permitted disposition
over
(b) the sum of
(i) all reasonable and customary fees and expenses
with respect to legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and
disbursements actually incurred in connection with such
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permitted disposition which have not been paid (other than in
the case of reasonable out-of-pocket expenses) to Affiliates
of the Borrower;
plus
(ii) all taxes and other governmental costs and
expenses actually paid or estimated by the Borrower or such
Subsidiary (in good faith) to be payable in cash in connection
with such permitted disposition;
plus
(iii) payments made by the Borrower or such
Subsidiary to retire Indebtedness (other than the Loans) of
the Borrower or such Subsidiary where payment of such
Indebtedness is required in connection with such permitted
disposition;
provided, however, that if, after the payment of all taxes with respect to such
permitted disposition, the amount of estimated taxes, if any, pursuant to clause
(b)(ii) above exceeded the tax amount actually paid in respect of such permitted
disposition, the aggregate amount of such excess shall be deemed to be Net
Disposition Proceeds.
"Net Equity Proceeds" means, with respect to the sale or issuance by
the Borrower or any Subsidiary to any Person of any stock, warrants or options
or the exercise of any such warrants or options, the excess of:
(a) the gross cash proceeds received by the Borrower or the
Subsidiary from such sale, exercise or issuance,
over
(b) all reasonable and customary underwriting discounts and
commissions and legal, investment banking, brokerage and accounting and
other professional fees, sales commissions and disbursements actually
incurred in connection with such sale or issuance which have not been
paid to Affiliates of the Borrower in connection therewith;
provided, however, that Net Equity Proceeds shall not include (i) any cash
proceeds received by a Subsidiary of the Borrower from the Borrower or a Wholly
Owned Subsidiary of the Borrower or (ii) any cash proceeds received by the
Borrower from directors, officers or employees of the Borrower or any of its
Subsidiaries pursuant to any Borrower incentive, stock option or similar plan
which are concurrently contributed to the common equity of the Borrower.
"Net Income" means, for any period, the aggregate of all amounts
(including all amounts in respect of any extraordinary gains and losses, but
excluding any write-up of assets after December 31, 1997) which, in accordance
with GAAP, would be included as net income on the consolidated financial
statements of the Borrower and its Subsidiaries for such period.
"Net Issuance Proceeds" means, as to any issuance of indebtedness for
borrowed money by the Borrower or any of its Subsidiaries, the excess of:
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(a) the gross cash proceeds received by the Borrower or such
Subsidiary from such issuance,
over
(b) all reasonable and customary fees and expenses with
respect to underwriting commissions or fees, upfront, structuring or
arrangement fees and legal, investment banking, commercial banking,
brokerage and accounting and other professional fees, sales commissions
and disbursements actually incurred in connection with such issuance
which have not (other than in the case of reasonable out-of-pocket
expenses) been paid to Affiliates of the Borrower in connection
therewith.
"Net Working Capital" means, with respect to the Borrower, the excess
of (a) Current Assets (excluding cash and Cash Equivalent Investments) over (b)
Current Liabilities.
"Non-Excluded Taxes" means any Taxes other than net income and
franchise taxes imposed with respect to any Secured Party by a Governmental
Authority under the laws of which such Secured Party is organized or in which it
maintains its applicable lending office.
"Non-U.S. Lender" means any Lender that is not a "United States
person", as defined under Section 7701(a)(30) of the Code.
"Note" means, as the context may require, a Revolving Note, a Term A
Note, or a Term B Note.
"Xxx Mine" is defined in the recitals.
"Xxx Project" is defined in the recitals.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of the Borrower and each other
Obligor arising under or in connection with this Agreement and each other Loan
Document.
"Obligor" means, as the context may require, the Borrower, any
Subsidiary and each other Person (other than a Secured Party) obligated under
any Loan Document.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of such Obligor's partnership interests, limited liability company interests or
authorized shares of Capital Stock.
"Other Taxes" means any and all stamp, documentary or similar taxes, or
any other excise or property taxes or similar levies that arise on account of
any payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.
"ounce" means a xxxx ounce equivalent to 31.1035 grams.
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"Palladium Production" means, for any period, the number of ounces of
refined palladium in sponge form having a minimum purity of 99.95% produced by
the Borrower and available for sale and delivery by the Borrower during such
period.
"Participant" is defined in Section 10.11.2.
"Patent Security Agreement" means any Patent Security Agreement
executed and delivered by any Obligor for the benefit of the Secured Parties in
substantially the form of Exhibit A to any Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"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, as the context may require, any Lender's RL
Percentage, Term A Percentage or Term B Percentage.
"Permitted Acquisition" means an Acquisition (whether pursuant to a
merger or an acquisition of stock, assets or otherwise) by the Borrower or any
Subsidiary from any Person in which the following conditions are satisfied:
(a) immediately before and after giving effect to such
Acquisition no Default shall have occurred and be continuing or would
result therefrom (including under Section 7.2.1);
(b) consideration for such Acquisition shall be comprised of
Capital Stock of the Borrower (other than Redeemable Capital Stock and
Capital Stock that may require the payment of dividends (other than
dividends payable in additional shares of such Capital Stock) prior to
March 31, 2008), the assumption of Indebtedness permitted under clause
(i) of Section 7.2.2 and/or cash and the aggregate amount of the
consideration for such Acquisition (based on the fair market value of
the Capital Stock issued, the amount of Indebtedness assumed and the
cash expended in connection therewith), when added to the total
aggregate amount of consideration for all other Acquisitions since the
Effective Date, would not exceed $25,000,000, of which amount, no more
than $5,000,000 in any single Acquisition (or $10,000,000 in the
aggregate for all Acquisitions since the Effective Date) shall be or
have been comprised of Indebtedness assumed and cash expended; and
(c) the Borrower shall have delivered to the Administrative
Agent a Compliance Certificate for the period of four full Fiscal
Quarters immediately preceding such
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Acquisition (prepared in good faith and in a manner and using such
methodology which is consistent with the most recent financial
statements delivered pursuant to Section 7.1.1) giving pro forma effect
to the consummation of such Acquisition and evidencing compliance with
the covenants set forth in Section 7.2.4.
"Permitted Lease Disposition" means the sale or transfer by the
Borrower of equipment which has been acquired by the Borrower for the purpose of
selling or transferring such equipment to a Person (the "lessor") that will
lease such equipment back to the Borrower, so long as (i) such equipment is
sold, or transferred to the relevant lessor within 90 days of the Borrower's
acquisition thereof, (ii) such equipment is sold or transferred to the lessor
for consideration equal to or greater than the consideration paid by the
Borrower for such equipment and (iii) the lease resulting from such transaction
is permitted under Section 7.2.18.
"Permitted Liens" shall mean the Liens permitted pursuant to clauses
(a) through (k) of Section 7.2.3.
"Permitted Revenue Bond Documents" means, in connection with the
Permitted Revenue Bond Indebtedness, collectively, the loan agreement between
the Borrower and the State of Montana, the indenture between the State of
Montana and the trustee for the holders of the Economic Development Revenue
Bonds, and each other instrument and agreement relating to the Permitted Revenue
Bond Indebtedness or Economic Development Revenue Bonds, in each case, as
amended, supplemented or amended and restated in accordance with clause (c) of
Section 7.2.12.
"Permitted Revenue Bond Indebtedness" means Indebtedness in an
aggregate principal amount not exceeding $30,000,000 incurred by the Borrower
upon receipt of the proceeds of the Economic Development Revenue Bonds, to the
extent such Indebtedness complies with the following terms:
(a) such Indebtedness is not secured by the assets of, or
guaranteed by, any Obligor;
(b) no payments of principal (whether scheduled, mandatory or
otherwise) shall be required prior to December 30, 2008 (provided that
such terms may provide for such Indebtedness to be prepaid in the event
the Economic Development Revenue Bonds are required to be redeemed
prior to their final stated maturity as a result of a final
nonappealable determination by the Internal Revenue Service or a
Federal court determines that the interest paid or payable on any
Economic Development Revenue Bond is or was includable in the gross
income of any holder of such Economic Development Revenue Bond, other
than a holder who is a "substantial user" of the Project or a "related
person" within the meaning of Section 147(a) of the Code (such event,
an "Economic Development Revenue Bond Tax Event"));
(c) the documentation evidencing such Indebtedness does not
contain (i) any provisions permitting the occurrence of an event of
default as a result of the existence of a default or an event of
default under the terms of any other indebtedness (including the
Obligations), except in the case the maturity of such indebtedness is
accelerated and the
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aggregate principal amount thereof exceeds $30,000,000; and (ii) any
representations, warranties, covenants, events of default or other
terms that are more burdensome on any Obligor than the representations,
warranties, covenants, events of default or other terms contained in
the Loan Documents (as determined by the Administrative Agent in its
reasonable discretion); and
(d) the proceeds of such Indebtedness are used (or are
committed to be used) by the Borrower to pay a portion of the costs and
expenses incurred in connection with the Project consistent with the
terms and conditions of the Economic Development Revenue Bond
Resolution.
"Person" means any natural person, corporation, limited liability
company, partnership, joint venture, association, trust or unincorporated
organization, Governmental Authority or any other legal entity, whether acting
in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Platinum Production" means, for any period, the number of ounces of
refined platinum in sponge form having a minimum purity of 99.95% produced by
the Borrower and available for sale and delivery by the Borrower during such
period.
"Pledged Subsidiary" means, at any time, each Subsidiary in respect of
which the Administrative Agent, for the benefit of the Secured Parties, has been
granted, at such time, a security interest in and to, or a pledge of, (i) any of
the issued and outstanding shares of Capital Stock of such Subsidiary or (ii)
any intercompany notes of such Subsidiary owing to the Borrower or another
Subsidiary.
"Probable Reserves" means, at any date, reserves of ore palladium and
platinum at each Mine as determined and calculated in accordance with standards
established from time to time by the SEC.
"Pro Forma Balance Sheet" is defined in Section 5.1.6.
"Project" is defined in the recitals.
"Proven Reserves" means, at any date, reserves of ore palladium and
platinum at each Mine as determined and calculated in accordance with standards
established from time to time by the SEC.
"Quarterly Payment Date" means the last day of March, June, September
and December, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Redeemable Capital Stock" means Capital Stock of the Borrower or any
of its Subsidiaries that, either by its terms, by the terms of any security into
which it is convertible or exchangeable or otherwise, (i) is or upon the
happening of an event or passage of time would be required to be redeemed (for
consideration other than shares of common stock of the Borrower) on or prior to
the one-year anniversary of the Stated Maturity Date (as such date may be
amended from time to time), (ii) is redeemable at the option of the holder
thereof (for
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consideration other than shares of common stock of the Borrower) at any time
prior to such date or (iii) is convertible into or exchangeable for debt
securities of the Borrower or any of its Subsidiaries at any time prior to such
anniversary.
"Refinancing" means, as to any Indebtedness, the incurrence of other
Indebtedness to refinance such existing Indebtedness; provided that, in the case
of such other Indebtedness, the following conditions are satisfied:
(i) the weighted average life to maturity of such
refinancing Indebtedness shall be greater than or equal to the
weighted average life to maturity of the Indebtedness being
refinanced, and the first scheduled principal payment in
respect of such refinancing Indebtedness shall not be earlier
than the first scheduled principal payment in respect of the
Indebtedness being refinanced;
(ii) the principal amount of such refinancing
Indebtedness shall be less than or equal to the principal
amount then outstanding of the Indebtedness being refinanced;
(iii) the respective obligor or obligors shall be the
same on the refinancing Indebtedness as on the Indebtedness
being refinanced;
(iv) the security, if any, for the refinancing
Indebtedness shall be the same as that for the Indebtedness
being refinanced (except to the extent that less security is
granted to holders of refinancing Indebtedness);
(v) the refinancing Indebtedness is subordinated to
the Obligations to the same degree, if any, or to a greater
degree as the Indebtedness being refinanced; and
(vi) no material terms applicable to such refinancing
Indebtedness or, if applicable, the related guarantees of such
refinancing Indebtedness (including covenants, events of
default, remedies, acceleration rights) shall be more
favorable to the refinancing lenders than the terms that are
applicable under the instruments and documents governing the
Indebtedness being refinanced.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in clause (e) of Section 10.11.1.
"Required Lenders" means, at any time,
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(a) with respect to any provision of this Agreement or other
Loan Document other than (i) the declaration of the acceleration of the
maturity of all or any portion of the outstanding principal amount of
the Loans and other Obligations to be due and payable pursuant to
Section 8.3, (ii) any determination under Section 8.1.12 or (iii) the
taking of any other remedial action under this Agreement or any other
Loan Document, Lenders holding at least a majority of the sum of (A)
the Revolving Loan Commitment Amount (or, following the Revolving Loan
Commitment Termination Date, the aggregate principal amount of the
Revolving Loans then outstanding plus the Letter of Credit Outstandings
(after giving effect to the participation of the Lenders therein)) (B)
the Term A Loan Commitment Amount (or, if the Term Loans have been
made, the aggregate principal amount of the Term A Loans then
outstanding) and (C) the Term B Loan Commitment Amount (or, if the Term
Loans have been made, the aggregate principal amount of the Term B
Loans then outstanding); provided, however, that any termination of the
Revolving Loan Commitments pursuant to Section 8.3 shall only require
Lenders having at least a majority of the Revolving Loan Commitment
Amount, or
(b) with respect to (i) the declaration of the acceleration of
the maturity of all or any portion of the outstanding principal amount
of the Loans and other Obligations to be due and payable pursuant to
Section 8.3, (ii) any determination under Section 8.1.12 or (iii) the
taking of any other remedial action under this Agreement or any other
Loan Document, Lenders holding at least a majority of the sum of the
aggregate principal amount of outstanding Loans plus the Letter of
Credit Outstandings (after giving effect to the participation of the
Lenders therein).
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Restricted Payment" means the declaration or payment of any dividend
(other than dividends payable solely in common stock of the Borrower) on, or the
making of any payment or distribution on account of, or setting apart assets for
a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of any class of Capital Stock of the Borrower or
any Subsidiary or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or the making of any other distribution in
respect thereof, either directly or indirectly, whether in cash or property,
obligations of the Borrower or any Subsidiary or otherwise.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Commitment" means, relative to any Lender, such
Lender's obligation (if any) to make Revolving Loans pursuant to Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $50,000,000, as
such amount may be permanently reduced from time to time pursuant to Section
2.2.
"Revolving Loan Commitment Termination Date" means the earliest of
(a) December 30, 2005;
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(b) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding clauses (b) or (c),
the Revolving Loan Commitments shall terminate automatically and without any
further action.
"Revolving Loan Lender" is defined in clause (a) of Section 2.1.1.
"Revolving Note" means a promissory note of the Borrower payable to any
Revolving Loan Lender, in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Revolving Loan
Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"RL Percentage" means, relative to any Lender, the applicable
percentage relating to Revolving Loans set forth opposite its name on Schedule
II hereto under the Revolving Loan Commitment column or set forth in a Lender
Assignment Agreement under the Revolving Loan Commitment column, as such
percentage may be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.1. A Lender shall not have any Revolving Loan
Commitment if its percentage under the Revolving Loan Commitment column is zero
(0%).
"Rothschild" is defined in the preamble.
"S&P" means Standard & Poor's Rating Services.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Administrative Agent, the Technical Agent, each counterparty to a Lender Hedging
Agreement that is (or at the time such Lender Hedging Agreement was entered
into, was) a Lender or an Affiliate thereof and (in each case) each of their
respective successors, transferees and assigns.
"Security Agreement" means, as the context may require, the Borrower
Security Agreement and each Subsidiary Security Agreement and Foreign Pledge
Agreement, in each case as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Shareholders' Equity" means, with respect to the Borrower at any date,
on a consolidated basis for the Borrower and its Subsidiaries, the excess of
(a) the sum of common stock taken at par value, paid-in
capital and accumulated earnings (or accumulated deficit)
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over
(b) treasury stock of the Borrower and, to the extent included
in clause (a) above, minority interests in Subsidiaries of the
Borrower.
"Stated Amount" means, on any date and with respect to a particular
Letter of Credit, the total amount then available to be drawn under such Letter
of Credit.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) with respect to all Term A Loans, December 30, 2005;
(b) with respect to all Term B Loans, December 31, 2007; and
(c) with respect to all Revolving Loans, December 30, 2005.
"Subordinated Debt" means Indebtedness of the Borrower in respect of
any unsecured Indebtedness of the Borrower subordinated in right of payment to
the Obligations pursuant to documentation containing maturities, amortization
schedules, covenants, defaults, remedies, subordination provisions and other
material terms satisfactory to the Required Lenders.
"Subordinated Debt Documents" means, collectively, the loan agreements,
indentures, note purchase agreements, promissory notes, guarantees, and other
instruments and agreements evidencing the terms of Subordinated Debt, as
amended, supplemented, amended and restated in accordance with Section 7.2.12.
"Subordinated Notes" means, collectively, any promissory notes
evidencing Subordinated Debt, as such notes or instruments may be amended,
supplemented or otherwise modified from time to time in accordance with Section
7.2.12.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership or other entity of which more than 50% of
the outstanding securities (or other ownership interest) having ordinary voting
power to elect the board of directors, managers or other voting members of the
governing body of such corporation, limited liability company, partnership or
other entity (irrespective of whether at the time securities (or other ownership
interest) of any other class or classes of such corporation, limited liability
company, partnership or other entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled 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. Unless the
context otherwise specifically requires, the term "Subsidiary" shall be a
reference to a Subsidiary of the Borrower.
"Subsidiary Guaranty" means each Subsidiary Guaranty executed and
delivered by a Subsidiary pursuant to the terms of this Agreement, substantially
in the form of Exhibit J hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time.
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"Subsidiary Security Agreement" means, collectively, each Security
Agreement executed and delivered by a Subsidiary in favor of the Administrative
Agent for the benefit of the Secured Parties pursuant to the terms of this
Agreement, in substantially the form of Exhibit H, in each case, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Substitute Lender" is defined in Section 4.11.
"Substitution Notice" is defined is Section 4.11.
"Supply Contract Counterparty" means each Material Supply Contract
Counterparty and each other Person who enters into any Supply Contract with the
Borrower or any Subsidiary.
"Supply Contract Counterparty Notice" means a duly completed notice in
the form of Exhibit F-2 attached hereto, with such modification thereto as may
be agreed to by the Administrative Agent.
"Supply Contracts" means, collectively, (i) each Material Supply
Contract and (ii) each contract with a term of one year or more pursuant to
which the Borrower agrees to deliver palladium or platinum to a Supply Contract
Counterparty.
"Synthetic Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (i) that is not a capital lease in accordance
with GAAP and (ii) in respect of which the lessee retains or obtains ownership
of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.
"Taxes" means any and all income, stamp or other taxes, duties, levies,
imposts, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, and all
interest, penalties or similar liabilities with respect thereto.
"TD" is defined in the preamble.
"TDSI" is defined in the preamble.
"Technical Agent" is defined in the preamble and includes each other
Person succeeding in such capacity.
"Term A Loan" is defined in Section 2.1.3.
"Term A Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term A Loans pursuant to Section 2.1.3.
"Term A Loan Commitment Amount" means, on any date, $65,000,000, as
such amount may be permanently reduced from time to time pursuant to Section
2.2.
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"Term A Loan Commitment Termination Date" means the earliest of
(a) February 28, 2001;
(b) the date on which the Term A Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Term A Loan
Commitments shall terminate automatically and without any further action.
"Term A Note" means a promissory note of the Borrower payable to any
Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term A Loans, and also means all other promissory notes accepted from time to
time in substitution therefor or renewal thereof.
"Term A Percentage" means, relative to any Lender, the applicable
percentage relating to Term A Loans set forth opposite its name on Schedule II
hereto under the Term A Loan Commitment column or set forth in a Lender
Assignment Agreement under the Term A Loan Commitment column, as such percentage
may be adjusted from time to time pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered pursuant to
Section 10.11.1. A Lender shall not have any Term A Loan Commitment if its
percentage under the Term A Loan Commitment column is zero (0%).
"Term B Loan" is defined in Section 2.1.4.
"Term B Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term B Loans pursuant to Section 2.1.4.
"Term B Loan Commitment Amount" means, on any date, $135,000,000, as
such amount may be permanently reduced from time to time pursuant to Section
2.2.
"Term B Loan Commitment Termination Date" means the earliest of
(a) February 28, 2001;
(b) the date on which the Term B Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Term B Loan
Commitments shall terminate automatically and without any further action.
"Term B Note" means a promissory note of the Borrower payable to any
Lender, in the form of Exhibit A-3 hereto (as such promissory note may be
amended, endorsed or otherwise
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modified from time to time), evidencing the aggregate Indebtedness of the
Borrower to such Lender resulting from outstanding Term B Loans, and also means
all other promissory notes accepted from time to time in substitution therefor
or renewal thereof.
"Term B Percentage" means, relative to any Lender, the applicable
percentage relating to Term B Loans set forth opposite its name on Schedule II
hereto under the Term B Loan Commitment column or set forth in a Lender
Assignment Agreement under the Term B Loan Commitment column, as such percentage
may be adjusted from time to time pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered pursuant to
Section 10.11.1. A Lender shall not have any Term B Loan Commitment if its
percentage under the Term B Loan Commitment column is zero (0%).
"Term Loans" means, collectively, the Term A Loans and the Term B
Loans.
"Termination Date" means the date on which all Obligations have been
paid in full in cash, all Letters of Credit have been terminated or expired (or
the Administrative Agent shall have received immediately available funds in an
amount equal to all Letter of Credit Outstandings, deposited in a cash
collateral account with the Administrative Agent or its designee on terms
satisfactory to the Administrative Agent), all Lender Hedging Agreements have
been terminated and all Commitments shall have terminated.
"Title Opinions" is defined in Section 5.1.17.
"Total Exposure Amount" means, on any date of determination (and
without duplication), the outstanding principal amount of all Loans, the
aggregate amount of all Letter of Credit Outstandings and the unfunded amount of
the Commitments.
"Trademark Security Agreement" means any Trademark Security Agreement
executed and delivered by any Obligor for the benefit of the Secured Parties
substantially in the form of Exhibit B to any Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Tranche" means, as the context may require, the Term A Loans, the Term
B Loans or the Revolving Loan Commitments/Revolving Loans.
"Transaction" means the Project, the financing to be provided hereunder
and all transactions related thereto.
"Transaction Documents" means, collectively, the Loan Documents, the
Initial Supply Contracts and the Construction Contracts, in each case as
amended, supplemented, amended and restated or otherwise modified from time to
time in accordance with the terms hereof.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in
effect in the State of New York.
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"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Welfare Plan" means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
"Wholly Owned Subsidiary" means any Subsidiary all of the outstanding
common stock (or similar equity interest) of which (other than any director's
qualifying shares or investments by foreign nationals mandated by applicable
laws) is owned directly or indirectly by the Borrower.
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 each other Loan Document and the
Disclosure Schedule.
SECTION 1.3. Cross-References; Interpretation. 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. References in
this Agreement and in each other Loan Document to the term "law" shall be deemed
to include any statute, law, code, rule, treaty, convention, regulation, order,
decree, consent decree, injunction, directive, determination or other
requirement (whether or not having the force of law, but, if not having the
force of law, the compliance with which law would be prudent for the Person
subject to such law) and, where applicable, any interpretation thereof by any
Governmental Authority having jurisdiction with respect thereto or charged with
the administration or interpretation thereof, whether national, federal,
supranational, tribal, regional, state or local.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, and all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, in accordance with,
those generally accepted accounting principles ("GAAP") applied in the
preparation of the financial statements referred to in clause (a) of Section
5.1.6. Unless otherwise expressly provided, all financial covenants and defined
financial terms shall be computed on a consolidated basis for the Borrower and
its Subsidiaries, in each case without duplication.
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ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCe
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement, the Lenders and the Issuers severally agree to make Credit
Extensions as set forth below.
SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Revolving Loan Commitment Termination Date, each Lender that has a Revolving
Loan Commitment (referred to as a "Revolving Loan Lender"), will make loans
(relative to such Lender, its "Revolving Loans") to the Borrower equal to such
Lender's RL Percentage of the aggregate amount of each Borrowing of the
Revolving Loans requested by the Borrower to be made on such day. On the terms
and subject to the conditions hereof, the Borrower may from time to time borrow,
prepay and reborrow Revolving Loans.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Revolving Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby letters of credit (relative to
such Issuer, its "Letter of Credit") for the account of the Borrower or
any Guarantor in the Stated Amount requested by the Borrower on such
day; or
(b) extend the Stated Expiry Date of an existing standby
Letter of Credit previously issued hereunder to a date not later than
the earlier of (x) the Revolving Loan Commitment Termination Date and
(y) unless otherwise agreed to by the Issuer in its sole discretion,
one year from the date of such extension.
SECTION 2.1.3. Term A Loan Commitment. In a single Borrowing on any
Business Day occurring from and after the Effective Date but prior to the Term A
Loan Commitment Termination Date, each Lender that has a Term A Loan Commitment
will make loans (relative to such Lender, its "Term A Loans") to the Borrower
equal to such Lender's Term A Percentage of the aggregate amount of the
Borrowing of Term A Loans requested by the Borrower to be made on such day (with
the commitment of each such Lender described in this clause herein referred to
as its "Term A Loan Commitment"). No amounts paid or prepaid with respect to
Term A Loans may be reborrowed.
SECTION 2.1.4. Term B Loan Commitment. In a single Borrowing on any
Business Day occurring from and after the Effective Date but prior to the Term B
Loan Commitment Termination Date, each Lender that has a Term B Loan Commitment
will make loans (relative to such Lender, its "Term B Loans") to the Borrower
equal to such Lender's Term B Percentage of the aggregate amount of the
Borrowing of Term B Loans requested by the Borrower to be made on such day (with
the commitment of each such Lender described in this clause herein referred to
as its "Term B Loan Commitment"). No amounts paid or prepaid with respect to
Term B Loans may be reborrowed.
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SECTION 2.1.5. Lenders Not Permitted or Required to Make Loans. No
Lender shall be permitted or required to make any Loan if, after giving effect
thereto, the aggregate outstanding principal amount of
(a) all Revolving Loans
(i) of all Revolving Loan Lenders, together with the
aggregate amount of all Letter of Credit Outstandings, would
exceed the then existing Revolving Loan Commitment Amount; or
(ii) of such Revolving Loan Lender, together with
such Lender's RL Percentage of the aggregate amount of all
Letter of Credit Outstandings, would exceed such Lender's
Percentage of the then existing Revolving Loan Commitment
Amount;
(b) all Term A Loans of all Lenders holding Term A Loan
Commitments would exceed the Term A Loan Commitment Amount; or
(c) all Term B Loans of all Lenders holding Term B Loan
Commitments would exceed the Term B Loan Commitment Amount.
SECTION 2.1.6. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans then outstanding would exceed
the Revolving Loan Commitment Amount.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the Effective Date, voluntarily reduce the amount
of the Revolving Loan Commitment Amount, the Letter of Credit Commitment Amount,
the Term A Loan Commitment Amount, or the Term B Loan Commitment Amount on the
Business Day so specified by the Borrower; provided, however, that all such
reductions shall require at least one Business Day's prior notice to the
Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $1,000,000 and in an integral
multiple of $500,000. Any optional or mandatory reduction of the Revolving Loan
Commitment Amount pursuant to the terms of this Agreement which reduces the
Revolving Loan Commitment Amount below the Letter of Credit Commitment Amount
shall result in an automatic and corresponding reduction of the Letter of Credit
Commitment Amount (as directed by the Borrower in a notice to the Administrative
Agent delivered together with the notice of such voluntary reduction in the
Revolving Loan Commitment Amount) to an aggregate amount not in excess of the
Revolving Loan Commitment Amount, as so reduced, without any further action on
the part of any Issuer.
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SECTION 2.2.2. Mandatory. The Revolving Loan Commitment Amount shall be
automatically and permanently reduced in accordance with Section 3.1.2 without
any further action.
SECTION 2.3. Borrowing Procedures. Loans shall be made by the Lenders
in accordance with Section 2.3.1.
SECTION 2.3.1. Borrowing Procedure. By delivering a Borrowing Request
to the Administrative Agent on or before 10:00 a.m., New York time, on a
Business Day, the Borrower may from time to time irrevocably request, on not
less than one Business Day's notice in the case of Base Rate Loans, or three
Business Days' notice in the case of LIBO Rate Loans, and in either case not
more than five Business Days' notice, that a Borrowing be made, in the case of
LIBO Rate Loans, in a minimum amount of $2,000,000 and in integral multiple of
$500,000, in the case of Base Rate Loans, in a minimum amount of $1,000,000 and
an integral multiple of $100,000 or, in either case, in the unused amount of the
applicable Commitment. On the terms and subject to the conditions of this
Agreement, each Borrowing shall be comprised of the type of Loans, and shall be
made on the Business Day, specified in such Borrowing Request. On or before
11:00 a.m. (New York time) on such Business Day each Lender that has a
Commitment to make the Loans being requested shall deposit with the
Administrative Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the Administrative
Agent shall make such funds available to the Borrower by wire transfer to the
accounts the Borrower shall have specified in its Borrowing Request. No Lender's
obligation to make any Loan shall be affected by any other Lender's failure to
make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 10:00
a.m., New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice in the case of
Base Rate Loans, or three Business Days' notice in the case of LIBO Rate Loans,
and in either case not more than five Business Days' notice, that all, or any
portion in an aggregate minimum amount of $2,000,000 and an integral multiple of
$500,000 be, in the case of Base Rate Loans, converted into LIBO Rate Loans or
be, in the case of LIBO Rate Loans, converted into Base Rate Loans or continued
as LIBO Rate Loans (in the absence of delivery of a Continuation/Conversion
Notice with respect to any LIBO Rate Loan at least three Business Days (but not
more than five Business Days) before the last day of the then current Interest
Period with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that (x) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders that have made such Loans, and (y) no portion
of the outstanding principal amount of any Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and is continuing.
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SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender 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 Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 10:00 a.m., New York time, on a Business
Day, the Borrower may from time to time irrevocably request on not less than
three nor more than ten Business Days' notice, in the case of an initial
issuance of a Letter of Credit and not less than three Business Days' prior
notice, in the case of a request for the extension of the Stated Expiry Date of
a standby Letter of Credit, that an Issuer issue, or extend the Stated Expiry
Date of, as the case may be, an irrevocable Letter of Credit in such form as may
be requested by the Borrower and approved by such Issuer, solely for the
purposes described in Section 7.1.7. Each Letter of Credit shall by its terms be
stated to expire on a date (its "Stated Expiry Date") no later than the earlier
to occur of (i) the thirtieth day preceding the Revolving Loan Commitment
Termination Date or (ii) (unless otherwise agreed to by an Issuer, in its sole
discretion) one year from the date of its issuance. Each Issuer will make
available to the beneficiary thereof the original of the Letter of Credit which
it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by an Issuer pursuant hereto, and without further
action, each Revolving Loan Lender (other than such Issuer) shall be deemed to
have irrevocably purchased, to the extent of its Percentage to make Revolving
Loans, a participation interest in such Letter of Credit (including the
Contingent Liability and any Reimbursement Obligation with respect thereto), and
such Revolving Loan Lender shall, to the extent of its Percentage to make
Revolving Loans, be responsible for reimbursing promptly (and in any event
within one Business Day), whether or not any Default shall have occurred and be
continuing, the Issuer for Reimbursement Obligations which have not been
reimbursed by the Borrower in accordance with Section 2.6.3. In addition, such
Revolving Loan Lender shall, to the extent of its Percentage to make Revolving
Loans, be entitled to receive a ratable portion of the Letter of Credit fees
payable pursuant to Section 3.3.3 with respect to each Letter of Credit (other
than the issuance fees payable to an Issuer of such Letter of Credit pursuant to
the last sentence of Section 3.3.3) and of interest payable pursuant to Section
3.2 with respect to any Reimbursement Obligation. To the extent that any
Revolving Loan Lender has reimbursed any Issuer for a Disbursement, such Lender
shall be entitled to receive its ratable portion of any amounts subsequently
received (from the Borrower or otherwise) in respect of such Disbursement.
SECTION 2.6.2. Disbursements. An Issuer will notify the Borrower and
the Administrative Agent promptly of the presentment for payment of any Letter
of Credit issued by such Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be
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made (each such payment, a "Disbursement"). Subject to the terms and provisions
of such Letter of Credit and this Agreement, the applicable Issuer shall make
such payment to the beneficiary (or its designee) of such Letter of Credit.
Prior to 11:00 a.m., New York time, on the first Business Day following the
Disbursement Date, the Borrower will reimburse the Administrative Agent, for the
account of the applicable Issuer, for all amounts which such Issuer has
disbursed under such Letter of Credit, together with interest thereon at a rate
per annum equal to the rate per annum then in effect for Base Rate Loans (with
the then Applicable Margin for Revolving Loans accruing on such amount) pursuant
to Section 3.2 for the period from the Disbursement Date through the date of
such reimbursement. Without limiting in any way the foregoing and
notwithstanding anything to the contrary contained herein or in any separate
application for any Letter of Credit, the Borrower hereby acknowledges and
agrees that it shall be obligated to reimburse the applicable Issuer upon each
Disbursement of a Letter of Credit, and it shall be deemed to be the obligor for
purposes of each such Letter of Credit issued hereunder (whether the account
party on such Letter of Credit is the Borrower or a Subsidiary).
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse an Issuer with
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrower to reimburse an Issuer, each Revolving Loan Lender's obligation
under Section 2.6.1 to reimburse an Issuer, shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or such Revolving Loan Lender, as the case
may be, may have or have had against such Issuer or any Lender, including any
defense based upon the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in such Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of the Borrower or
such Lender, as the case may be, to commence any proceeding against an Issuer
for any wrongful Disbursement made by such Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or willful misconduct
on the part of such Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default under Section 8.1.9 or any Default under
clause (c) or (d) of Section 8.1.9 which, after the lapse of 60 days, would
constitute an Event of Default or upon notification by the Administrative Agent
(acting at the direction of the Required Lenders) to the Borrower of its
obligations under this Section, following the occurrence and during the
continuation of any other Event of Default,
(a) the aggregate Stated Amount of all Letters of Credit
shall, without demand upon or notice to the Borrower or any other
Person, be deemed to have been paid or disbursed by the Issuers of such
Letters of Credit (notwithstanding that such amount may not in fact
have been paid or disbursed); and
(b) the Borrower shall be immediately obligated to reimburse
the Issuers for the amount deemed to have been so paid or disbursed by
such Issuers.
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Amounts payable by the Borrower pursuant to this Section shall be deposited in
immediately available funds with the Administrative Agent and held as collateral
security for the Reimbursement Obligations. When all Defaults giving rise to the
deemed disbursements under this Section have been cured or waived the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section which have not been
applied to the satisfaction of the Reimbursement Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower, each
other Obligor and, to the extent set forth in Section 2.6.1, each Revolving Loan
Lender shall assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. No Issuer (except to the extent of its own
gross negligence or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Revolving Loan Lender hereunder.
In furtherance and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by an Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon each
Obligor and each such Secured Party, and shall not put such Issuer under any
resulting liability to any Obligor or any Secured Party, as the case may be.
SECTION 2.7. Loan Accounts; Notes. (a) Each Lender may maintain in
accordance with its usual practice an account or accounts evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder. In the case of a Lender that does not
request, pursuant to clause (b) below, execution and delivery of a Note
evidencing the Loans made by such Lender to the Borrower, such account or
accounts shall, to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the Borrower
absent manifest error; provided, however, that the
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failure of any Lender to maintain such account or accounts shall not limit or
otherwise affect any Obligations of the Borrower or any other Obligor.
(a) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will promptly execute
and deliver to such Lender, as applicable, a Note evidencing the Loans
made by such Lender. The Borrower hereby irrevocably authorizes each
Lender to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall,
to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the
Borrower absent manifest error; provided, however, that the failure of
any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Borrower or any other Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application. The Borrower
agrees that the Loans shall be repaid and prepaid pursuant to the following
terms.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan on its Stated Maturity Date. Prior
thereto, payments and prepayments of Loans shall or may be made as set forth
below.
(a) From time to time on any Business Day, the Borrower may
make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans; provided, however, that
(i) any such voluntary prepayment of Loans of the
same type or Loans with the same Interest Period shall be made
pro rata among the Lenders that made such Loans (and, in the
case of Term A Loans and Term B Loans, applied pro rata
against the remaining amortization payments for the Term
Loans);
(ii) all such voluntary prepayments shall require at
least three (or, in the case of Base Rate Loans, one) but no
more than five Business Days' prior written notice to the
Administrative Agent; and
(iii) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans, in an aggregate minimum
amount of $2,000,000 and an integral multiple of $500,000 and,
in the case of Base Rate Loans, in an aggregate minimum amount
of $1,000,000 and an integral multiple of $100,000; and
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(iv) any voluntary prepayment of Term B Loans made on
or prior to the third anniversary of the Closing Date shall be
subject to the payment of a premium, as set forth below:
(a) 3.0% of the principal amount of Term B
Loans prepaid pursuant to this clause (a) of Section
3.1.1 on or prior to the first anniversary of the
Closing Date;
(b) 2.0% of the principal amount of Term B
Loans prepaid pursuant to this clause (a) of Section
3.1.1 subsequent to the first anniversary and prior
to or on the second anniversary of the Closing Date;
and
(c) 1.0% of the principal amount of Term B
Loans prepaid pursuant to this clause (a) of Section
3.1.1 subsequent to the second anniversary and prior
to or on the third anniversary of the Closing Date.
(b) On each date when the sum of (i) the aggregate outstanding
principal amount of all Revolving Loans and (ii) the aggregate amount
of all Letter of Credit Outstandings exceeds the Revolving Loan
Commitment Amount (as it may be reduced from time to time pursuant to
this Agreement), the Borrower shall make a mandatory prepayment of
Revolving Loans and, if necessary, deposit cash collateral with the
Administrative Agent or its designee pursuant to an agreement
satisfactory to the Administrative Agent to collateralize Letter of
Credit Outstandings, in an aggregate amount equal to such excess.
(c) Within three Business Days of the receipt by the Borrower
or any Subsidiary of any Net Equity Proceeds, the Borrower shall
deliver to the Administrative Agent a calculation of such Net Equity
Proceeds and make a mandatory prepayment of the Term Loans in an amount
equal to 50% of such Net Equity Proceeds, to be applied as set forth in
Section 3.1.2.
(d) (i) The Borrower shall, concurrently with the receipt by
the Borrower or any Subsidiary of Net Disposition Proceeds, make a
mandatory prepayment of the Term Loans equal to 100% of such Net
Disposition Proceeds, to be applied as set forth in Section 3.1.2;
provided, however, that any such prepayment shall not be required if
the total amount of such Net Disposition Proceeds, when added to all
other Net Disposition Proceeds received by the Borrower or any
Subsidiary in the same calendar year as such Net Disposition Proceeds
and not yet applied in accordance with this Section 3.1, is less than
$1,500,000 and no Default shall have occurred and be continuing.
(ii) The Borrower shall, following the receipt by the
Borrower or any Subsidiary (or the Administrative Agent
pursuant to any loss payee or similar provision) of any Net
Casualty Proceeds deliver to the Administrative Agent a
calculation of the amount of such Net Casualty Proceeds and
make a mandatory prepayment of the Term Loans equal to 100% of
such Net Casualty Proceeds within 30 days of the receipt
thereof to be applied as set forth in Section 3.1.2; provided,
however, that no mandatory prepayment on account of Net
Casualty
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Proceeds shall be required under this clause if (A) the
aggregate amount of Net Casualty Proceeds with respect to a
Casualty Event will not exceed $250,000 and no Default has
occurred and is continuing or (B) the Borrower informs the
Administrative Agent in writing no later than 30 days
following the occurrence of the Casualty Event resulting in
such Net Casualty Proceeds of its or such Subsidiary's good
faith intention to apply such Net Casualty Proceeds to the
rebuilding or replacement of the damaged, destroyed or
condemned assets or property and the Borrower or such
Subsidiary in fact uses such Net Casualty Proceeds to rebuild
or replace such assets or property within 360 days following
the receipt of such Net Casualty Proceeds, with the amount of
such Net Casualty Proceeds unused after such 360-day period
being applied to the Term Loans pursuant to Section 3.1.2;
provided further, however, that, in the event in the case of
the preceding clause (B) the aggregate amount of Net Casualty
Proceeds with respect to a Casualty Event exceeds $1,000,000,
such Net Casualty Proceeds shall be deposited in an account
maintained with the Administrative Agent (or an agent on its
behalf) to pay for such rebuilding or replacement and shall be
disbursed at the request of the Borrower so long as a Default
has not occurred and is then continuing at the time of such
disbursement.
(e) The Borrower shall, concurrently with the receipt by the
Borrower or any Subsidiary of any Net Issuance Proceeds arising from
the incurrence of Indebtedness not otherwise permitted under Section
7.2.2, make a mandatory prepayment of the Term Loans equal to 100% of
such Net Issuance Proceeds, to be applied as set forth in Section
3.1.2; provided, however, that compliance with this clause (e) shall
not be construed as preventing the occurrence of an Event of Default
under Section 8.1.3.
(f) Within 45 days after the end of each of the first three
Fiscal Quarters of each Fiscal Year commencing with the 2003 Fiscal
Year, and within 90 days after the end of each fourth Fiscal Quarter of
each such Fiscal Year, the Borrower shall make a mandatory prepayment
of the Term Loans in an amount equal to 50% of the Excess Cash Flow for
such Fiscal Quarter; provided, however, that (i) any such prepayment
shall not be required if the amount of such Excess Cash Flow, when
added to the Excess Cash Flow of each prior Fiscal Quarter (but not any
Fiscal Quarter prior to the first Fiscal Quarter of the 2003 Fiscal
Year) with respect to which a prepayment under this clause (f) was not
made, does not exceed $2,000,000 and no Default shall have occurred and
be continuing and (ii) any such prepayment shall not be required to the
extent the aggregate principal amount of Term Loans prepaid pursuant to
this clause (f) would exceed $100,000,000.
(g) On the Stated Maturity Date and on each Quarterly Payment
Date (commencing with June 30, 2001) occurring during each calendar
year set forth below, the Borrower shall make a scheduled repayment of
the aggregate outstanding principal amount of the Term B Loans made on
the Closing Date in an amount equal to the product of (i) the aggregate
principal amount of such Term B Loans made on the Closing Date and (ii)
the percentage set forth below opposite the relevant calendar year and
(iii) in the case of 2001, 33%, and in the case of each subsequent
calendar year, 25%:
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Year Percentage
---- ----------
2001 0.75%
2002 1.00%
2003 1.00%
2004 1.00%
2005 1.00%
2006 45.00%
2007 50.25%
(h) Immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, the Borrower
shall repay all the Loans, unless, pursuant to Section 8.3, only a
portion of all the Loans is so accelerated (in which case the portion
so accelerated shall be so repaid).
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by subclause (iv) of
clause (a) of Section 3.1.1 or Section 4.4. No prepayment of principal of any
Revolving Loans pursuant to clause (a) or (b) of this Section 3.1.1 shall cause
a reduction in the Revolving Loan Commitment Amount.
SECTION 3.1.2. Application. Amounts to be prepaid pursuant to Section
3.1.1 shall be applied as set forth in this Section.
(a) Subject to clause (b) below, each prepayment or repayment
of the principal of the Loans shall be applied, to the extent of such
prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans, and second, subject to the terms of
Section 4.4, to the principal amount thereof being maintained as LIBO
Rate Loans.
(b) In the case of any event described in clauses (c), (d),
(e) or (f) of Section 3.1.1 that would require the mandatory prepayment
of Loans, the amount of the proceeds arising from each such event shall
be applied (i) first, to a mandatory prepayment of the outstanding
principal amount of all Term A Loans and Term B Loans pro rata between
the Term A Loans and Term B Loans (with the amount of such prepayment
of the Term A Loans and the Term B Loans being applied to the remaining
scheduled amortization payments of the Term A Loans and/or Term B
Loans, in inverse order), pro rata among the holders of Term A Loans,
in the case of prepayments of Term A Loans, and pro rata among the
holders of Term B Loans, in the case of prepayments of Term B Loans,
and (ii) second, once all Term Loans have been repaid in full, (A) to a
permanent reduction of the Revolving Facility Commitment Amount in an
amount equal to the portion of such proceeds arising from any of the
events described in clauses (c), (d) or (e) of Section 3.1.1 that were
not applied to the repayment of Term Loans pro rata among the Lenders
holding Revolving Loan Commitments, and (B) to a mandatory prepayment
of the outstanding principal amount of all Revolving Loans (and, in the
event all Revolving Loans have been repaid, to the payment and/or cash
collateralization of all Letter of Credit Outstandings) in an amount
equal to the portion of such proceeds arising from an event described
in clause (f) of Section 3.1.1 that were not applied to the repayment
of Term Loans pro rata among the holders of Revolving Loans; provided,
however, that in
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the case of any prepayment of Term B Loans made pursuant to clause (c),
(d), (e) or (f) of Section 3.1.1, any Lender that has Term B Loans may
elect not to have such Loans prepaid by delivering a notice to the
Administrative Agent at least one Business Day prior to the date that
such prepayment is to be made, in which notice such Lender shall
decline to have such Loans prepaid with the amounts described above, in
which case the amounts that would have otherwise been applied to a
prepayment of such Lender's Term B Loans shall instead be applied in
the manner set forth above to a prepayment of the principal amount (if
any) of all outstanding Term A Loans until all outstanding Term A Loans
have been prepaid in full, then, once all Term A Loans have been repaid
in full, (x) to a permanent reduction in the Revolving Loan Commitment
Amount in an amount equal to the portion of such proceeds arising from
any of the events described in clauses (c), (d) or (e) of Section 3.1.1
that were not applied to the repayment of Term Loans pro rata among the
Lenders holding Revolving Loan Commitments, and (y) to a mandatory
prepayment of the outstanding principal amount of all Revolving Loans
(and, in the event all Revolving Loans have been repaid, to the payment
and/or cash collateralization of all Letter of Credit Outstandings) in
an amount equal to the portion of such proceeds arising from an event
described in clause (f) of Section 3.1.1 that were not applied to the
repayment of Term Loans pro rata among the holders of Revolving Loans.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin.
All LIBO Rate Loans 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 LIBO
Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan or Reimbursement Obligation is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and payable, the
Borrower shall pay, but only to the extent permitted by law, interest (after as
well as before judgment) on such amounts and, for so long as such amounts remain
unpaid and the Required Lenders (as defined in clause (b) of the definition
thereof) do not otherwise provide, all other amounts outstanding hereunder at a
rate per annum equal to the
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Alternate Base Rate from time to time in effect plus the Applicable Margin for
Base Rate Loans, plus an additional margin of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan on the principal amount so
paid or prepaid;
(c) with respect to Base Rate Loans, on each Monthly Payment
Date occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the date occurring on each three-month interval
occurring after the first day of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when any of its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Effective Date and continuing through the applicable Commitment Termination
Date, a commitment fee in an amount equal to the Applicable Commitment Fee, in
each case on such Lender's Percentage of the sum of the average daily unused
portion of the applicable Commitment Amount (net of Letter of Credit
Outstandings, in the case of the Revolving Loan Commitment Amount). All
commitment fees payable pursuant to this Section shall be calculated on a year
comprised of 360 days and payable by the Borrower in arrears on the Effective
Date and thereafter on each Quarterly Payment Date, commencing with the first
Quarterly Payment Date following the Effective Date, and on each applicable
Commitment Termination Date.
SECTION 3.3.2. Agent's Fee. The Borrower agrees to pay to the
Administrative Agent, for its own account, the fees in the amounts and on the
dates set forth in the Fee Letter.
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SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the applicable Issuer and each
Revolving Loan Lender, a Letter of Credit fee in an amount equal to the then
effective Applicable Margin for Revolving Loans maintained as LIBO Rate Loans,
multiplied by the Stated Amount of each such Letter of Credit, such fees being
payable quarterly in arrears on each Quarterly Payment Date following the date
of issuance of each Letter of Credit and on the Revolving Loan Commitment
Termination Date. The Borrower further agrees to pay to the applicable Issuer
quarterly in arrears on each Quarterly Payment Date following the date of
issuance of each Letter of Credit and on the Revolving Loan Commitment
Termination Date an issuance fee as agreed to by the Borrower and such Issuer.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the
Administrative Agent, be conclusive and binding on the Borrower) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO
Rate Loan shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans payable to such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to it in its relevant
market; or
(b) by reason of circumstances affecting it's relevant market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans;
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender and Issuer for any increase in the cost to such Lender
or Issuer of, or any reduction in the amount of any sum receivable by such
Secured Party in respect of, such Secured Party's
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Commitments and the making of Credit Extensions hereunder (including the making,
continuing or maintaining (or of its obligation to make, continue or maintain)
any Loans as, or of converting (or of its obligation to convert) any Loans into,
LIBO Rate Loans) that arise in connection with any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in after the date hereof of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any Governmental
Authority, except for such changes with respect to increased capital costs and
Taxes which are governed by Sections 4.5 and 4.6, respectively. Each affected
Secured Party shall promptly notify the Administrative Agent and the Borrower in
writing of the occurrence of any such event, such notice to state the reasons
therefor and the additional amount required fully to compensate such Secured
Party for such increased cost or reduced amount. Such additional amounts shall
be payable by the Borrower directly to such Secured Party within five days of
its receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make or continue any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loan on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Article III or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor;
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
With such notice, the Lender shall provide the Borrower with a certificate
outlining in reasonable detail the computations of any amounts claimed and the
assumptions underlying such computations. Such written notice shall, in the
absence of manifest error, be conclusive and binding on the Borrower. The
Borrower shall have no obligation to make a payment under this Section to a
Secured Party unless such Lender shall have notified the Borrower of its demand
therefor within 60 days of the date on which such Lender has obtained final
internal financial statements with respect to the Fiscal Quarter of such Lender
in which such loss or expense occurred.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by
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any Secured Party or any Person controlling such Secured Party, and such Secured
Party determines (in good faith but in its sole and absolute discretion) that
the rate of return on its or such controlling Person's capital as a consequence
of the Commitments or the Credit Extensions made, or the Letters of Credit
participated in, by such Secured Party is reduced to a level below that which
such Secured Party or such controlling Person could have achieved but for the
occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Secured Party to the Borrower, the Borrower shall within
five days following receipt of such notice pay directly to such Secured Party
additional amounts sufficient to compensate such Secured Party or such
controlling Person for such reduction in rate of return. With such notice, the
Secured Party shall provide the Borrower with a certificate outlining in
reasonable detail the computations of any amounts claimed and the assumptions
underlying such computations. A statement of such Secured Party as to any such
additional amount or amounts shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount, such Secured
Party may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable. The Borrower shall have no
obligation to make a payment under this Section to a Secured Party unless such
Secured Party shall have notified the Borrower of its demand therefor within 60
days of the date on which such Secured Party has obtained final internal
financial statements with respect to the Fiscal Quarter of such Secured Party as
to which such additional amount or amounts are being claimed.
SECTION 4.6. Taxes. The Borrower covenants and agrees as follows with
respect to Taxes.
(a) Any and all payments by the Borrower under this Agreement
and each other Loan Document shall be made without setoff, counterclaim
or other defense, and free and clear of, and without deduction or
withholding for or on account of, any Taxes. In the event that any
Taxes are required by law to be deducted or withheld from any payment
required to be made by the Borrower to or on behalf of any Secured
Party under any Loan Document, then:
(i) subject to clause (f), if such Taxes are
Non-Excluded Taxes, the amount of such payment shall be
increased as may be necessary such that such payment is made,
after withholding or deduction for or on account of such
Taxes, in an amount that is not less than the amount provided
for herein or in such other Loan Document; and
(ii) the Borrower shall withhold the full amount of
such Taxes from such payment (as increased pursuant to clause
(a)(i)) and shall pay such amount to the Governmental
Authority imposing such Taxes in accordance with applicable
law.
(b) In addition, the Borrower shall pay any and all Other
Taxes imposed to the relevant Governmental Authority imposing such
Other Taxes in accordance with applicable law.
(c) As promptly as practicable after the payment of any Taxes
or Other Taxes, and in any event within 45 days of any such payment
being due, the Borrower shall
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furnish to the Administrative Agent a copy of an official receipt (or a
certified copy thereof) evidencing the payment of such Taxes or Other
Taxes. The Administrative Agent shall make copies thereof available to
any Lender upon request therefor.
(d) Subject to clause (f), the Borrower shall indemnify each
Secured Party for any Non-Excluded Taxes and Other Taxes levied,
imposed or assessed on (and whether or not paid directly by) such
Secured Party (whether or not such Non-Excluded Taxes or Other Taxes
are correctly or legally asserted by the relevant Governmental
Authority). Promptly upon having knowledge that any such Non-Excluded
Taxes or Other Taxes have been levied, imposed or assessed, and
promptly upon notice thereof by any Secured Party, the Borrower shall
pay such Non-Excluded Taxes or Other Taxes directly to the relevant
Governmental Authority (provided, however, that no Secured Party shall
be under any obligation to provide any such notice to the Borrower). In
addition, the Borrower shall indemnify each Secured Party for any
incremental Taxes that may become payable by such Secured Party as a
result of any failure of the Borrower to pay any Taxes when due to the
appropriate Governmental Authority or to deliver to the Administrative
Agent, pursuant to clause (c), documentation evidencing the payment of
Taxes or Other Taxes. With respect to indemnification for Non-Excluded
Taxes and Other Taxes actually paid by any Secured Party or the
indemnification provided in the immediately preceding sentence, such
indemnification shall be made within 30 days after the date such
Secured Party makes written demand therefor. The Borrower acknowledges
that any payment made to any Secured Party or to any Governmental
Authority in respect of the indemnification obligations of the Borrower
provided in this clause shall constitute a payment in respect of which
the provisions of clause (a) and this clause shall apply.
(e) Each Non-U.S. Lender, on or prior to the date on which
such Non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of the Borrower or the Administrative
Agent, but only for so long as such Non-U.S. Lender is legally entitled
to do so), shall deliver to the Borrower and the Administrative Agent
either
(i) two duly completed copies of either (x) Internal
Revenue Service Form W-8BEN or (y) Internal Revenue Service
Form W-8ECI, or in any such case an applicable successor form;
or
(ii) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in clause
(e)(i), (x) a certificate of a duly authorized officer of such
Non-U.S. Lender to the effect that such Non-U.S. Lender is not
(A) a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (B) a "10 percent shareholder" of the Borrower within
the meaning of Section 881(c)(3)(B) of the Code, or (C) a
controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of
the Code (such certificate, an "Exemption Certificate") and
(y) two duly completed copies of Internal Revenue Service Form
W-8BEN or applicable successor form.
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(f) The Borrower shall not be obligated to gross up any
payments to any Lender pursuant to clause (a)(i), or to indemnify any
Lender pursuant to clause (d), in respect of United States federal
withholding taxes to the extent imposed as a result of (i) the failure
of such Lender to deliver to the Borrower the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to clause
(e), (ii) such form or forms and/or Exemption Certificate not
establishing a complete exemption from U.S. federal withholding tax or
the information or certifications made therein by the Lender being
untrue or inaccurate on the date delivered in any material respect, or
(iii) the Lender designating a successor lending office at which it
maintains its Loans which has the effect of causing such Lender to
become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that the
Borrower shall be obligated to gross up any payments to any such Lender
pursuant to clause (a)(i), and to indemnify any such Lender pursuant to
clause (d), in respect of United States federal withholding taxes if
(i) any such failure to deliver a form or forms or an Exemption
Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or certifications made in
such form or forms or Exemption Certificate untrue or inaccurate in a
material respect, (ii) the redesignation of the Lender's lending office
was made at the request of the Borrower or (iii) the obligation to
gross up payments to any such Lender pursuant to clause (a)(i) or to
indemnify any such Lender pursuant to clause (d) is with respect to an
Assignee Lender that becomes an Assignee Lender as a result of an
assignment made at the request of the Borrower.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided in a Loan Document, all payments by the Borrower pursuant to this
Agreement or any other Loan Document shall be made by the Borrower to the
Administrative Agent for the pro rata account of the Secured Parties entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 11:00 a.m., New York time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Secured Party its share, if any, of such payments
received by the Administrative Agent for the account of such Secured Party. All
interest (including interest on LIBO Rate Loans) 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 (or, in the case of interest on a Base
Rate Loan (calculated at other than the Federal Funds Rate), 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall otherwise be due
on a day which is not a Business Day, such payment shall (except as otherwise
required by clause (c) of the definition of
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the term "Interest Period") 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 4.8. Sharing of Payments. If any Secured Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in
excess of its pro rata share of payments obtained by all Secured Parties, such
Secured Party shall purchase from the other Secured Parties such participations
in Credit Extensions made by them as shall be necessary to cause such purchasing
Secured Party to share the excess payment or other recovery ratably (to the
extent such other Secured Parties were entitled to receive a portion of such
payment or recovery) 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 Secured Party, the purchase shall be rescinded and each Secured
Party which has sold a participation to the purchasing Secured Party shall repay
to the purchasing Secured Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Secured Party's ratable
share (according to the proportion of
(a) the amount of such selling Secured Party's required
repayment to the purchasing Secured Party
to
(b) total amount so recovered from the purchasing Secured
Party)
of any interest or other amount paid or payable by the purchasing Secured Party
in respect of the total amount so recovered. The Borrower agrees that any
Secured Party so purchasing a participation from another Secured Party pursuant
to this Section may, to the fullest extent permitted by law, exercise all its
rights of payment (including pursuant to Section 4.9) with respect to such
participation as fully as if such Secured Party were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Secured Party receives a
secured claim in lieu of a setoff to which this Section applies, such Secured
Party shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Secured Parties
entitled under this Section to share in the benefits of any recovery on such
secured claim.
SECTION 4.9. Setoff. Each Secured Party shall, upon the occurrence and
during the continuance of any Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence
and during the continuance of 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) the Borrower hereby grants
to each Secured Party a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Secured Party; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 4.8.
Each Secured Party agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Secured Party;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff
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and application. The rights of each Secured Party under this Section are in
addition to other rights and remedies (including other rights of setoff under
applicable law or otherwise) which such Secured Party may have.
SECTION 4.10. Change of Lending Office. Each Lender agrees that if it
makes any demand for payment under Sections 4.3, 4.5 or 4.6, or if any
introduction or change of the type described in Section 4.1 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in good faith in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under Section 4.3, 4.5 or 4.6, or would eliminate or reduce the effect of any
introduction or change described in Section 4.1.
SECTION 4.11. Replacement of Lenders. If any Lender (an "Affected
Lender") makes a demand upon the Borrower for (or if the Borrower is otherwise
required to pay) amounts pursuant to Section 4.3, 4.5 or 4.6 (and the payment of
such amounts are more onerous in the reasonable judgment of the Borrower than
with respect to the other Lenders), or gives notice pursuant to Section 4.1
requiring a conversion of such Affected Lender's LIBO Rate Loans to Base Rate
Loans or suspending such Lender's obligation to make Loans as, or to convert
Loans into, LIBO Rate Loans, the Borrower may, within 30 days of receipt by the
Borrower of such demand or notice, as the case may be, give notice (a
"Substitution Notice") in writing to such Affected Lender, the Administrative
Agent and, in the case such Affected Lender has a Revolving Loan Commitment, the
Issuer of its intention to replace such Affected Lender with an Eligible
Assignee (a "Substitute Lender") designated in such Substitution Notice;
provided, however, that no Substitution Notice may be given by the Borrower and
no such replacement may occur if (i) such replacement conflicts or would
conflict with any applicable law or regulation, (ii) unless the Administrative
Agent otherwise consents, any Event of Default shall have occurred and be
continuing at the time of the giving of such notice or the time of such
replacement or (iii) prior to the giving of such notice or the time of any such
replacement, such Lender shall have taken any necessary action under Section
4.3, 4.5 or 4.6 (if applicable) so as to eliminate the continued need for
payment of amounts owing pursuant to Section 4.3, 4.5 or 4.6. If the
Administrative Agent shall, in the exercise of its reasonable discretion and
within five Business Days of its receipt of such Substitution Notice, notify the
Borrower and such Affected Lender in writing that the Substitute Lender is
satisfactory to the Administrative Agent and, in the case such Affected Lender
has a Revolving Loan Commitment, the Issuer (each such consent not being
required where the Substitute Lender is already a Lender), then such Affected
Lender shall, subject to the payment of any amounts due to the Affected Lender
pursuant to Section 4.4, assign, in accordance with Section 10.11.1, all of its
Commitments, Loans, Notes (if any) and other rights and obligations under this
Agreement and all other Loan Documents (including Reimbursement Obligations, if
applicable) to such Substitute Lender; provided, however, that (i) such
assignment shall be without recourse, representation or warranty (other than
that such affected Lender owns the Commitments, Loans and Notes being assigned,
free and clear of any Liens) and shall be on terms and conditions substantially
similar to the terms set forth in the form of Lender Assignment Agreement
attached hereto, (ii) the purchase price paid by such Substitute Lender shall be
in the amount of such Affected Lender's Loans and its Percentage of outstanding
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Reimbursement Obligations, together with all accrued and unpaid interest and
fees in respect thereof, plus all other amounts (other than the amounts demanded
and unreimbursed under Sections 4.3, 4.5 and 4.6, which amounts shall be paid by
the Borrower as a condition to such assignment), owing to such Affected Lender
hereunder and (iii) the Borrower shall pay to the Affected Lender and the
Administrative Agent to the extent so requested all reasonable out-of-pocket
expenses incurred by the Affected Lender and the Administrative Agent in
connection with such assignment and assumption (including the processing fees
described in Section 10.11.1). Upon the effective date of an assignment
described above, the Substitute Lender shall become a "Lender" for all purposes
under this Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
and, if applicable, the Issuer to fund the initial Credit Extension shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1 (the date on which such conditions
precedent are satisfied or waived by the Lenders being herein referred to as the
"Closing Date").
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each Obligor, as applicable, (i) a copy of a good standing
certificate, as well as certificate(s) of qualification to do business in each
foreign jurisdiction in which such Obligor conducts material operations, dated a
date reasonably close to the Closing Date, for each such Person and (ii) a
certificate, dated the Closing Date and with counterparts for each Lender, duly
executed and delivered by such Person's Secretary or Assistant Secretary,
managing member or general partner, as applicable, as to
(a) resolutions of each such Person's Board of Directors (or
other managing body, in the case of any Person that is not a
corporation) then in full force and effect authorizing, to the extent
relevant, all aspects of the Transaction applicable to such Person and
the execution, delivery and performance of this Agreement, each other
Loan Document to be executed by such Person and the transactions
contemplated hereby and thereby;
(b) the incumbency and signatures of those of its officers,
managing member or general partner, as applicable, authorized to act
with respect to this Agreement and each other Loan Document to be
executed by such Person; and
(c) the full force and validity of each Organic Document of
such Person and copies thereof;
upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
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SECTION 5.1.2. Closing Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, the Closing Date Certificate,
dated as of the Closing Date and duly executed and delivered by an Authorized
Officer of the Borrower, in which certificate the Borrower shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of the Borrower as of such date, and, at
the time each such certificate is delivered, such statements shall in fact be
true and correct in each case, in all material respects. All documents and
agreements required to be appended to the Closing Date Certificate shall be in
form and substance reasonably satisfactory to the Administrative Agent.
SECTION 5.1.3. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that has requested a Note, such
Lender's Notes duly executed and delivered by an Authorized Officer of the
Borrower.
SECTION 5.1.4. Payment of Outstanding Indebtedness, etc. All
Indebtedness with respect to the Existing Credit Facility, together with all
interest, all prepayment premiums and other amounts due and payable with respect
thereto, shall have been paid in full and the commitments in respect of such
Indebtedness shall have been terminated, and all Liens securing payment of any
such Indebtedness shall have been released and the Administrative Agent shall
have received all Uniform Commercial Code Form UCC-3 termination statements or
other instruments as may be suitable or appropriate in connection therewith.
SECTION 5.1.5. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender, as
the case may be, all fees, costs and expenses due and payable pursuant to
Sections 3.3 and 10.3, if then invoiced by the Administrative Agent.
SECTION 5.1.6. Financial Information, etc. The Administrative Agent
shall have received, with copies for each Lender,
(a) (i) the audited consolidated balance sheet and related
audited consolidated statements of income and cash flow of the Borrower
and its Subsidiaries for the 1999 Fiscal Year and (ii) the unaudited
interim consolidated balance sheet and related unaudited consolidated
statements of income and cash flow for each of the first three Fiscal
Quarters of the 2000 Fiscal Year;
(b) a pro forma consolidated balance sheet of the Borrower and
its Subsidiaries, as of the Closing Date (the "Pro Forma Balance
Sheet"), certified by the chief financial or accounting Authorized
Officer of the Borrower, giving effect to all aspects of the
Transaction that have been consummated on or prior to such date, which
balance sheet shall be reasonably satisfactory to the Administrative
Agent and the Lenders; and
(c) projected seven-year financial information regarding the
Borrower and its Subsidiaries, in form and substance satisfactory to
the Administrative Agent.
SECTION 5.1.7. Compliance Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, an initial Compliance
Certificate on a pro forma basis (as if (i) Credit Extensions to be made on the
Closing Date had been made as of September 30, 2000
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and (ii) the aspects of the Transaction that have been consummated on or prior
to the Closing Date had been consummated as of September 30, 2000, and as to
such items therein as the Administrative Agent and the Lenders reasonably
request, dated as of the Closing Date, duly executed (and with all schedules
thereto duly completed) and delivered by the chief executive, financial or
accounting Authorized Officer of the Borrower.
SECTION 5.1.8. Due Diligence by Mining Consultant. The Administrative
Agent shall have received and be satisfied with the report of the Mining
Consultant with respect to the Project, including with respect to the Borrower's
actual and projected capital expenditures, operating costs, mine development
schedules, proven and projected reserves and production volume for both the Xxx
Mine and the East Boulder Mine, as well as a review of the reports prepared by
Bechtel Mining and Metals and MRDI.
SECTION 5.1.9. Mine Plans. The Administrative Agent, the Mining
Consultant and the Lenders shall be reasonably satisfied with the Borrower's
Mine Plans for the Xxx Mine and the East Boulder Mine.
SECTION 5.1.10. Solvency, etc. The Administrative Agent shall have
received, with counterparts for each Lender, a certificate duly executed and
delivered by the chief financial or accounting Authorized Officer of the
Borrower, dated as of the Closing Date, in the form of Exhibit M attached
hereto.
SECTION 5.1.11. Security Agreements. The Administrative Agent shall
have received, with counterparts for each Lender, executed counterparts of the
Borrower Security Agreement dated as of the date hereof, duly executed and
delivered by an Authorized Officer of the Borrower and, in the event the
Borrower has any Subsidiaries (other than Evergreen), executed counterparts of
each Subsidiary Security Agreement dated as of the date hereof, duly executed
and delivered by an Authorized Officer of each such Subsidiary, together with
(a) executed copies of Uniform Commercial Code financing
statements (Form UCC-1), naming the Borrower and each such Subsidiary
(if any) as a debtor and the Administrative Agent, on behalf of the
Secured Parties, as the secured party, or other similar instruments or
documents, to be filed under the Uniform Commercial Code of all
jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interests of
the Administrative Agent pursuant to such Security Agreement;
(b) the applicable Perfection Certificate (as defined in such
Security Agreement);
(c) executed copies of proper Uniform Commercial Code Form
UCC-3 termination statements, if any, necessary to release all Liens
(except for Permitted Liens) of any Person
(i) in any collateral described in any Security
Agreement previously granted to any Person, and
(ii) securing any of the Indebtedness in respect to
the Existing Credit Facility,
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together with such other Uniform Commercial Code Form UCC-3 termination
statements as the Administrative Agent may reasonably request from such
Obligors;
(d) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Administrative Agent, dated a
date reasonably near to the Closing Date, listing all effective
financing statements which name the Borrower and each Subsidiary (under
its present name and any previous names) as the debtor and which are
filed in the jurisdictions in which filings were made pursuant to
clause (a) above, together with copies of such financing statements
(none of which shall cover any collateral described in any Security
Agreement except for Permitted Liens);
(e) (i) all applicable Counterparty Notices required to be
delivered pursuant to Sections 3.6 and 4.10(i) of a Security Agreement
and Sections 2.10 and 3.3(c) of a Mortgage (to the extent such notices
may be obtained by the Borrower with the exercise of its commercially
reasonable efforts) and (ii) all landlord lien notices with respect to
each lessor of premises leased to the Borrower or any Subsidiary after
the date of this Agreement with respect to the assets of the Borrower
or any Subsidiary located on such premises;
(f) in the event the Borrower has any Subsidiaries,
certificates evidencing all of the issued and outstanding shares of
Capital Stock owned by the Borrower in each such Subsidiary or owned by
any other Subsidiary, which certificates shall be accompanied by
undated stock powers duly executed in blank; and
(g) all Pledged Notes (as defined in the Borrower Security
Agreement and the Subsidiary Security Agreement, as applicable), if
any, evidencing Indebtedness payable to the Borrower or to any
Subsidiary duly endorsed to the order of the Administrative Agent,
together with Uniform Commercial Code Financing Statements (or similar
instruments) in respect of such Pledged Notes executed by the Borrower
or a Guarantor to be filed in such jurisdictions as the Administrative
Agent may reasonably request.
The Administrative Agent and its counsel shall be satisfied that (i) the Lien
granted to the Administrative Agent, for the benefit of the Secured Parties in
the collateral described above is a first priority (or local equivalent thereof)
security interest; and (ii) no Lien exists on any of the collateral described
above other than Permitted Liens and the Lien created in favor of the
Administrative Agent, for the benefit of the Secured Parties, pursuant to a Loan
Document.
SECTION 5.1.12. Patent Security Agreement, Copyright Security Agreement
and Trademark Security Agreement. The Administrative Agent shall have received
the Patent Security Agreement, the Copyright Security Agreement and the
Trademark Security Agreement, as applicable, each dated as of the date of the
initial Credit Extension, duly executed and delivered by each Obligor that has
delivered a Security Agreement.
SECTION 5.1.13. Mortgage. The Administrative Agent shall have received
counterparts of each Mortgage, dated as of the date hereof, duly executed by the
Borrower, together with
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(a) evidence of the completion (or satisfactory arrangements
for the completion) of all recordings and filings of each Mortgage as
may be necessary or, in the reasonable opinion of the Administrative
Agent, desirable to create a valid, perfected first priority Lien
against the properties purported to be covered thereby;
(b) (i) mortgagee's title insurance policies with respect to
property purported to be covered by each Mortgage (except patented and
unpatented mining and millsite claims) in favor of the Administrative
Agent for the benefit of the Secured Parties in amounts and in form and
substance and issued by insurers reasonably satisfactory to the
Administrative Agent, addressed to the Administrative Agent and the
Lenders, insuring that title to such property is marketable and that
the interests created by each Mortgage constitute valid, perfected
first priority Liens thereon free and clear of all defects and
encumbrances other than as approved by the Administrative Agent, and
such policies shall also include a survey reading, and, if required by
the Administrative Agent and if available, revolving credit
endorsement, comprehensive endorsement, variable rate endorsement,
access and utilities endorsements, mechanic's lien endorsement and such
other endorsements as the Administrative Agent shall reasonably request
and shall be accompanied by evidence of the payment in full of all
premiums thereon, and (ii) the Title Opinions to be provided pursuant
to Section 5.1.17(b) with respect to patented mining claims and Key
Unpatented Claims purported to be covered by each Mortgage in favor of
the Administrative Agent for the benefit of the Secured Parties
addressed to the Administrative Agent and the Lenders and in form and
substance reasonably satisfactory to the Administrative Agent;
(c) U.C.C. financing statements related to the security
interests created by each Mortgage, together with evidence of the
completion (or satisfactory arrangements for the completion) of all
recordings and filings of such financing statements in the appropriate
offices and records as may be necessary or, in the reasonable opinion
of the Administrative Agent, desirable to create valid, perfected first
priority Liens against the improvements purported to be covered
thereby; and
(d) such other approvals, opinions or documents as the
Administrative Agent may reasonably request, including a current survey
(or, in the case of property in respect of a Mine, the most recently
completed mineral survey) of each property purported to be covered by a
Mortgage in form and substance satisfactory to the Administrative Agent
and the title insurer.
SECTION 5.1.14. Subsidiary Guaranty. In the event the Borrower has any
Subsidiaries (other than Evergreen), the Administrative Agent shall have
received, with counterparts for each Lender, a Subsidiary Guaranty for the
benefit of the Secured Parties, dated as of the date hereof, duly executed and
delivered by each such Subsidiary.
SECTION 5.1.15. Insurance. The Administrative Agent shall have
received, with copies for each Lender, (a) certified copies of the insurance
policies (or binders in respect thereof), from one or more insurance companies
satisfactory to the Administrative Agent, evidencing coverage required to be
maintained as of the Closing Date pursuant to Section 7.1.4 and each Loan
Document, (b) a certificate from the Borrower's insurance broker, Xxxxx Group,
LLC, certifying
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that all insurance required pursuant to this Agreement to be maintained by the
Borrower or the contracting parties described in clauses (b) and (c) of Section
7.1.4 is in full force and effect with no default by the Borrower, is (to the
knowledge of such broker) fully paid and is not subject to cancellation without
prior written notice to the Administrative Agent, and (c) a report from such
insurance broker that concludes that the Borrower maintains insurance with
financially sound and reputable insurance companies with respect to property and
risks of a character usually maintained by Persons of comparable size engaged in
the same or similar business and similarly situated and against loss, damage and
liability of the kinds and in the amounts customarily maintained by such
Persons.
SECTION 5.1.16. Consents. To the extent requested by the Administrative
Agent, the Administrative Agent shall have received copies of governmental and
third party authorizations, approvals, permits or consents described in Section
6.3.
SECTION 5.1.17. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the Closing Date and addressed to the
Administrative Agent and all Lenders, from
(a) Xxxxxxx, Phleger & Xxxxxxxx LLP, counsel to the Obligors,
substantially in the form of Exhibit N-1 hereto;
(b) Xxxxx, Xxxxxx & Xxxxxx LLP, special counsel to the
Borrower, as to the title of the Borrower to the patented mining claims
and Key Unpatented Claims described in Section 5.1.13(b)(ii),
substantially in the form of Exhibit N-2 hereto (the "Title Opinions");
and
(c) Holland & Xxxx, Montana counsel to the Obligors,
substantially in the form of Exhibit N-3 hereto.
SECTION 5.1.18. Consents and Acknowledgements. The Administrative Agent
has received from the Borrower (a) the letter from the Borrower to Franco-Nevada
Mining Corporation ("Franco-Nevada") executed by Franco-Nevada whereby
Franco-Nevada consents to, among other things, the execution and delivery of the
Mortgage and the assignment of the Claims (as defined in such letter) by the
Borrower to the Administrative Agent pursuant to the Mortgage as security for
the Obligations and (b) the letter from the Borrower to Xxxxxxx X. Xxxxx,
Xxxxxxx X. Xxxxx, Fort Xxxxxxxx Investments, Inc. and Xxxxx Nickel Mines, Inc.
(collectively, the "Mouats") executed by the Mouats pursuant to which the Mouats
consent to, among other things, the execution and delivery of the Mortgage and
the assignment the Claims (as defined in such letter) by the Borrower to the
Administrative Agent pursuant to the Mortgage as security for the Obligations.
The Borrower has made all commercially reasonable efforts to obtain Counterparty
Notices from all refiners, warehousemen and Specified Assigned Agreement
Counterparties (as such term is defined in the Mortgage).
SECTION 5.1.19. Supply Contract Counterparty Notices. The
Administrative Agent shall have received evidence satisfactory to it that the
Borrower has delivered to each Material Supply Contract Counterparty a Supply
Contract Counterparty Notice and that the Borrower has
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used its reasonable best efforts to receive an executed acknowledgement of such
Supply Contract Counterparty Notice from such Material Supply Contract
Counterparty.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
each Issuer to make any Credit Extension (including the initial Credit
Extension) shall be subject to the prior or concurrent satisfaction of each of
the conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension (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 thereof) the following statements shall be true and
correct:
(a) the representations and warranties set forth in Article VI
and in each other Loan Document shall, in each case, be true and
correct in all material respects 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 in all
material respects as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. Subject to Section 2.3.1,
the Administrative Agent shall have received a Borrowing Request if Loans are
being requested, or an Issuance Request if a Letter of Credit is being requested
or extended. Each of the delivery of a Borrowing Request or Issuance Request and
the acceptance by the Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such
Credit Extension and the application of the proceeds thereof) the statements
made in Section 5.2.1 are true and correct in all material respects.
SECTION 5.2.3. Officer's and Mining Consultant's Certificates. (a) In
the case of a Credit Extension that is the making of a Revolving Loan or the
issuance of (or the extension of the Stated Expiry Date of) a Letter of Credit
that is requested at any time prior to April 15, 2001, after giving effect to
such Credit Extension, the aggregate amount of Revolving Loans and Letter of
Credit Outstandings shall not be in excess of $25,000,000.
(b) In the case of a Credit Extension that is the making of a
Revolving Loan or the issuance of (or the extension of the Stated
Expiry Date of) a Letter of Credit that is requested at any time after
April 15, 2001, the Administrative Agent and the Technical Agent shall
have received with respect to the Fiscal Quarter most recently ended
prior to such requested Credit Extension:
(i) an officer's certificate in the form of Exhibit O
hereto certifying (with such supporting documentation as the
Administrative Agent or the Technical Agent may reasonably
require) that (i) the Capital Expenditures made or committed
to be made by the Borrower and its Subsidiaries on or prior to
the last day of such Fiscal Quarter are consistent in all
material respects with the Capital Expenditures reflected in
the
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Borrower's Mine Plans and (ii) construction and development
progress prior to the last day of such Fiscal Quarter with
respect to the Project will permit the Borrower to satisfy the
total ounces of Palladium Production and Platinum Production
set forth in the Mine Plans for the periods set forth in such
Mine Plans, and
(ii) a certificate from the Mining Consultant in the
form of Exhibit P hereto certifying that the Mining Consultant
is satisfied with the contents of the Borrower's officer's
certificate delivered pursuant to the immediately preceding
subclause (i),
provided that such certificates shall no longer be required following the
attainment by the Borrower of combined Annual Palladium Production and Annual
Platinum Production of at least 879,000 ounces.
SECTION 5.2.4. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel; the Administrative Agent
and its counsel shall have received all information, approvals, opinions,
documents or instruments as the Administrative Agent or its counsel may
reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Secured Parties to enter into this Agreement and
to make Credit Extensions hereunder, the Borrower represents and warrants to
each Secured Party as set forth in this Article.
SECTION 6.1. Organization, etc. The Borrower and each of its
Subsidiaries is validly organized and existing and in good standing under the
laws of the state or jurisdiction of its incorporation or organization, is duly
qualified to do business and is in good standing as a foreign entity in each
jurisdiction where the nature of its business requires such qualification, and
has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its Obligations under this
Agreement and each other Loan Document to which it is a party and to own and
hold under lease its property and to conduct its business substantially as
currently conducted by it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement and each other Loan
Document executed or to be executed by it, the execution, delivery and
performance by each other Obligor of each Loan Document executed or to be
executed by it, the Borrower's and each such other Obligor's participation in
the consummation of all aspects of the Transaction, and the execution, delivery
and performance by the Borrower or (if applicable) any Obligor of the agreements
executed and delivered in connection with the Transaction are in each case
within each such Person's powers, have been duly authorized by all necessary
action, and do not
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(a) contravene any such Person's Organic Documents;
(b) contravene any contractual restriction binding on or
affecting any such Person;
(c) contravene (i) any court decree or order binding on or
affecting any such Person or (ii) any law or governmental regulation
binding on or affecting any such Person; or
(d) result in, or require the creation or imposition of, any
Lien on any of such Person's properties (except as permitted by this
Agreement).
SECTION 6.3. Government Approval, Regulation, etc. (a) The Borrower has
received, has timely applied for renewals of, or has the benefit of all
governmental and third party authorizations, approvals, licenses, permits or
consents (including those related to environmental matters) which are necessary
or advisable: (i) for the execution, delivery and performance by the Borrower of
the Loan Documents; (ii) in order to timely complete the Project and to operate
the Xxx Mine and the East Boulder Mine at a production capacity of 3000 and 2000
tons of ore, respectively, per day (and to conduct such construction as may be
necessary to achieve such production levels); and (iii) in order to continue
operations of the Borrower and its Subsidiaries. All such authorizations,
approvals, licenses, permits and consents have been duly issued to and held by
the Borrower and are in valid and good standing and in full force and effect,
free of any material violation thereof, and all applicable waiting periods have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose adverse conditions on the
Transaction or the financing thereof.
(b) Other than the authorizations, approvals and consents described in
Section 6.3(a) above, no other 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 consummation of the Transaction or the due
execution, delivery or performance by the Borrower or any other Obligor of any
Loan Document to which it is a party, or for the due execution, delivery and/or
performance of Transaction Documents, in each case by the parties thereto or the
consummation of the Transaction. Neither the Borrower nor any of its
Subsidiaries 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 6.4. Validity, etc. This Agreement and each other Loan Document
executed by the Borrower will, on the due execution and delivery thereof,
constitute, the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms; and
each other Loan Document executed by each other Obligor will, on the due
execution and delivery thereof by such Obligor, constitute the legal, valid and
binding obligation of such Obligor enforceable against such Obligor in
accordance with its terms (except, in any
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case, as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and by principles of equity).
SECTION 6.5. Financial Information. The financial statements of the
Borrower and its Subsidiaries furnished to the Administrative Agent and each
Lender pursuant to Section 5.1.6 have been prepared in accordance with GAAP
consistently applied, and present fairly the consolidated financial condition of
the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. All balance sheets, all statements of
operations, shareholders' equity and cash flow and all other financial
information of each of the Borrower and its Subsidiaries furnished pursuant to
Section 7.1.1 have been and will for periods following the Effective Date be
prepared in accordance with GAAP consistently applied, and do or will present
fairly the consolidated financial condition of the Persons covered thereby as at
the dates thereof and the results of their operations for the periods then
ended.
SECTION 6.6. No Material Adverse Change. There has been no material
adverse change in the business, assets, financial condition, operations or
prospects of the Borrower or any of its Subsidiaries since September 30, 2000.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower or its Subsidiaries, threatened litigation,
action, proceeding or labor controversy
(a) except as disclosed in Item 6.7 of the Disclosure
Schedule, affecting the Borrower any of its Subsidiaries or any other
Obligor, or any of their respective properties, businesses, assets or
revenues, which could reasonably be expected to have a Material Adverse
Effect, and no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed in Item 6.7 which could reasonably be expected to have a
Material Adverse Effect; or
(b) which purports to affect the legality, validity or
enforceability of this Agreement, any other Loan Document, the
Transaction Documents or the Transaction.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries, except
(a) Evergreen, and
(b) those Subsidiaries which are permitted to have been
organized or acquired in accordance with Section 7.2.5 or 7.2.10.
As of the date hereof, Evergreen is a Wholly Owned Subsidiary that is not
engaged in the conduct of any business, holds no assets (other than paid-in
capital) and has no material liabilities (actual, unmatured or contingent).
Evergreen is in the process of being dissolved and, following receipt of
authorizations from Montana taxing authorities, will be dissolved.
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SECTION 6.9. Ownership of Properties. (a) The Borrower and each of its
Subsidiaries owns (i) in the case of owned real property (other than unpatented
mining and millsite claims), good and marketable fee title to, and (ii) in the
case of owned personal property, good and valid title to, or in the case of
leased real or personal property, valid and enforceable leasehold interests (as
the case may be) in, all of its properties and assets, real and personal,
tangible and intangible, of any nature whatsoever, free and clear in each case
of all Liens or claims, except for Permitted Liens.
(b) (i) Subject to the paramount title of the United States, the
matters described in Item 6.9(b) of the Disclosure Schedule, the existence of
overlaps between unpatented claims and the rights of the United States and third
parties to use the surface of unpatented mining and millsite claims under
applicable laws, so long as such overlaps and rights do not interfere with the
Borrower's use or development of such unpatented mining and millsite claims, (A)
all unpatented mining and millsite claims material to the development and
completion of any Mine or otherwise material to the Borrower (including the
unpatented mining and millsite claims described in the legal opinion referred to
in clause (b) of Section 5.1.17) (the "Key Unpatented Claims") have been
properly located and monumented; (B) location notices and certificates have been
properly posted and properly filed and recorded for each of the Key Unpatented
Claims, including in the official records of the county in which such Key
Unpatented Claim is situated and the authorized office of the Bureau of Land
Management in accordance with applicable law (and all fees and charges payable
in respect thereof have been properly and timely paid); (C) all filings and
recordings required to maintain the Key Unpatented Claims in good standing
through the date that this representation and warranty is being made, including
evidence of proper performance of annual assessment work or payment of required
claim maintenance fees, have been timely and properly made in all appropriate
governmental offices; (D) assessment work, performed reasonably and in good
faith in accordance with accepted industry practice, has been performed through
the assessment year ending on September 1, 1992; and (E) all required annual
claim maintenance fees and other payments necessary to maintain the Key
Unpatented Claims through the assessment year ending on the immediately
succeeding September 1 in accordance with applicable law have been timely and
properly made (and all affidavits and other filings required by applicable state
law for each such assessment year have been properly and timely made).
(ii) Subject to the paramount title of the United States, the
matters described in Item 6.9(b) of the Disclosure Schedule, the
existence of overlaps between unpatented claims and the rights of the
United States and third parties to use the surface of unpatented
mining and millsite claims under applicable laws, so long as such
overlaps and rights do not interfere with the Borrower's use or
development of such unpatented mining and millsite claims, to the
Borrower's knowledge (A) all unpatented mining and millsite claims
other than the Key Unpatented Claims (the "Additional Claims") have
been properly located and monumented; (B) location notices and
certificates have been properly posted and properly filed and recorded
for each of the Additional Claims, including in the official records
of the county in which such Additional Claim is situated and the
authorized office of the Bureau of Land Management in accordance with
applicable law (and all fees and charges payable in respect thereof
have been properly
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and timely paid); (C) all filings and recordings required to maintain
the Additional Claims in good standing through the date that this
representation and warranty is being made, including evidence of proper
performance of annual assessment work or payment of required claim
maintenance fees, have been timely and properly made in all appropriate
governmental offices; (D) assessment work, performed reasonably and in
good faith in accordance with accepted industry practice, has been
performed through the assessment year ending on September 1, 1992; and
(E) all required annual claim maintenance fees and other payments
necessary to maintain the Additional Claims through the assessment year
ending on the immediately succeeding September 1 in accordance with
applicable law have been timely and properly made (and all affidavits
and other filings required by applicable state law for each such
assessment year have been properly and timely made).
(iii) The foregoing representations in this subsection (b) do
not include any representations concerning the existence of a discovery
of valuable minerals within the boundaries of any individual Key Claim
or Additional Claim, provided that it is acknowledged and agreed by the
Borrower that this subsection (b)(iii) does not qualify or limit in any
way the representations and warranties set forth in Section 6.13.
(c) The Excluded Real Property does not include any Key Unpatented
Claims, any interest in either Mine or the X-X Reef or any other interest
material to, or necessary for, completion of the Project.
SECTION 6.10. Taxes. The Borrower and each of its Subsidiaries has
filed all tax returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be due and 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 any Credit Extension hereunder, no
steps have been taken to terminate any Pension Plan, 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 the Controlled Group of any material liability,
fine or penalty. Except as disclosed in Item 6.11 of the Disclosure Schedule,
neither the Borrower nor any member of the 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. Environmental Warranties. Except as set forth in Item
6.12 of the Disclosure Schedule (none of which items disclosed therein, singly
or in the aggregate, have, or may reasonably be expected to have, a Material
Adverse Effect):
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(a) all facilities and property owned or leased by the
Borrower or any of its Subsidiaries have been, and continue to be,
owned or leased by the Borrower and its Subsidiaries in material
compliance with all Environmental Laws;
(b) there are no pending or threatened claims, complaints,
notices, inquiries or requests for information received by the Borrower
or any of its Subsidiaries with respect to any alleged violation of, or
potential liability under, any Environmental Law which could reasonably
be expected to result in liability for the Borrower and its
Subsidiaries in an aggregate amount exceeding $2,500,000;
(c) there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the Borrower
or any of its Subsidiaries (including Releases of Hazardous Materials
into underlying groundwater) that have, or could reasonably be expected
to have, a Material Adverse Effect;
(d) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or, to the Borrower's
knowledge, proposed for listing (with respect to owned property only)
on the National Priorities List pursuant to CERCLA, on any similar
state lists of sites requiring investigation or clean-up of Hazardous
Materials (such as the Superfund Site Tracking System pursuant to the
Montana Comprehensive Environmental Cleanup and Responsibility Act) or
on any state or federal lists of sites with leaking underground storage
tanks ("LUSTs");
(e) 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 of its
Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;
(f) neither the Borrower nor any Subsidiary has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or, to the
Borrower's knowledge, proposed for listing on the National Priorities
List pursuant to CERCLA or on any similar state lists of sites
requiring investigation or clean-up of Hazardous Materials (such as the
Superfund Site Tracking System pursuant to the Montana Comprehensive
Environmental Cleanup and Responsibility Act) which could reasonably
result in a liability for the Borrower or any Subsidiary in an
aggregate amount exceeding $2,500,000;
(g) 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, singly or in the aggregate, have, or
could reasonably be expected to have, a Material Adverse Effect; and
(h) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower which, with the passage of
time, or the giving of notice or both, would give rise to liability
under any Environmental Law (excluding any liability covered by a
reclamation bond or letter of credit issued in lieu of a reclamation
bond) exceeding $5,000,000.
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SECTION 6.13. Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to any Secured Party by or
on behalf of the Borrower or any other Obligor for purposes of or in connection
with this Agreement or any transaction contemplated hereby (including the
Transaction), contains any untrue statement of a material fact, and no other
factual information hereafter furnished in writing in connection with this
Agreement or any other Loan Document by the Borrower or any other Obligor to any
Secured Party will contain any untrue statement of a material fact on the date
as of which such information is dated or certified or, if the information so
certified speaks as of another date, as of such date, and, as of the date of the
execution and delivery of this Agreement by the Secured Parties, the factual
information delivered prior to the date of execution and delivery of this
Agreement does not, and the factual information hereafter furnished shall not on
the date as of which such information is dated or certified or, if the
information so certified speaks as of another date, as of such date, omit to
state any material fact necessary to make any such information not misleading,
in each case, in light of the circumstances in which such information was
provided; provided that all of such information is to be viewed in conjunction
with the reports, statements, schedules and registration statements included in
filings made by the Borrower with the SEC prior to the delivery of such
information, including disclosures made pursuant to the Private Securities
Litigation Reform Act of 1995 to the extent provided to the Secured Parties. In
furtherance, and not in limitation, of the preceding sentence, (i) the due
diligence audit dated as of December 2000 prepared by the Mining Consultant in
connection with the Project and delivered to the Borrower and the Secured
Parties prior to the date hereof (the "Xxxxx Xxxxxxx Report") does not contain
any untrue statement of a material fact in light of the circumstances in which
such information was provided and (ii) all projections and estimates contained
in any Mine Plan have been prepared in good faith and based on reasonable
assumptions, and all projections and estimates hereafter furnished pursuant to
the terms of this Agreement shall be prepared in good faith and based, as of the
date so prepared, on reasonable assumptions; provided that all of such
information, projections and estimates are to be viewed in conjunction with the
reports, statements, schedules and registration statements included in filings
made by the Borrower with the SEC prior to the delivery of such information,
projections and estimates, including disclosures made pursuant to the Private
Securities Litigation Reform Act of 1995 to the extent provided to the Secured
Parties.
SECTION 6.14. Regulations U and X. No Obligor is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Credit Extensions will be used to purchase or
carry margin stock or otherwise for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or Regulation X. Terms for which
meanings are provided in F.R.S. Board Regulation U or Regulation X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.15. Good Neighbor Agreement. Operation of the Good Neighbor
Agreement will not have a Material Adverse Effect.
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SECTION 6.16. Status of Obligations as Senior Indebtedness, etc. The
subordination provisions of the Subordinated Debt, if any, contained in the
Subordinated Debt Documents are enforceable against the holders of the
Subordinated Debt by the holder of any "Senior Debt" or similar term referring
to the Obligations (as defined in the relevant Subordinated Debt Documents). All
Obligations, including those to pay principal of and interest (including
post-petition interest, whether or not allowed as a claim under bankruptcy or
similar laws) on the Loans and Reimbursement Obligations, and fees and expenses
in connection therewith, constitute "Senior Debt" and "Designated Senior Debt"
or similar terms relating to the Obligations (as defined in the relevant
Subordinated Debt Documents) and all such Obligations are entitled to the
benefits of the subordination created by the Subordinated Debt Documents. The
Borrower acknowledges that the Administrative Agent, each Lender and each Issuer
is entering into this Agreement and is extending its Commitments in reliance
upon the subordination provisions of the Subordinated Debt Documents.
SECTION 6.17. Mining Rights. The Borrower has acquired all Mining
Rights, and has obtained such other surface and other rights as are necessary
for access rights, water rights, plant sites, tailings disposal, waste dumps,
ore dumps, abandoned heaps or ancillary facilities which are required in
connection with the Project. All such Mining Rights and other rights are
sufficient in scope and substance for the development of the Project as
contemplated by the Mine Plans and no part of the purchase price payable in
connection with the acquisition of such Mining Rights and other rights (other
than royalty payments, if any, described in Item 6.17 of Disclosure Schedule)
remain unpaid. All fixtures, equipment, facilities and improvements necessary
for (i) the efficient and proper operation of the Xxx Mine (as contemplated in
the Mine Plan with respect to the Xxx Mine and the Approvals (as defined in the
Mortgage dated as of the date thereof) relating thereto), (ii) the efficient and
proper construction, testing and operation of the East Boulder Mine (as
contemplated in the Mine Plan with respect to the East Boulder Mine and the
Approvals (as defined in the Mortgage dated as of the date hereof) relating
thereto) and (iii) the efficient and proper construction, testing and operation
of the Borrower's smelter and refinery located in Columbus, Montana are either
located on lands encumbered by such Mortgage or will be located on lands
encumbered by such Mortgage. The Borrower has all the Mining Rights necessary to
mine the Proven Reserves and Probable Reserves reported in Section 6 of the
Xxxxx Xxxxxxx Report (as defined in Section 6.13) or in the most recent update
of the Borrower's Proven Reserves and Probable Reserves furnished in accordance
with clause (k) of Section 7.1.1; all such Proven Reserves and Probable Reserves
are located on or under lands to which such Mining Rights relate; a Mortgage
encumbers and grants a Lien to the Administrative Agent, for the benefit of the
Secured Parties, in all such Mining Rights; and all facilities and improvements
(whether now existing or hereafter created or acquired) described or otherwise
necessary for conducting the operations contemplated by the Mine Plans are or,
in the case hereafter created or acquired, will be located entirely on real
property as to which the representations and warranties set forth in Section 6.9
are true and correct and as to which the Administrative Agent, for the benefit
of the Secured Parties, has been granted a Lien pursuant to a Mortgage.
SECTION 6.18. Technology. The Borrower owns or has the right to use all
technology and processes required to consummate the Transaction and to build and
operate the Mines as
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contemplated by the Mine Plans. There are no material license agreements
granting the Borrower or any other Person rights in any patented process or the
right to use technical or secret know-how that are required for the consummation
of the Transaction or the operation of the Mines.
SECTION 6.19. Supply Contracts. The Borrower is in full compliance with
the terms and provisions of each Supply Contract, and has not breached a
provision of, or defaulted in any way under, any Supply Contract.
SECTION 6.20. Labor Matters. (a) Neither the Borrower nor any
Subsidiary is a party to any labor dispute and there are no strikes or walkouts
relating to any labor contracts to which the Borrower or any of its Subsidiaries
is a party or is otherwise subject; (b) there is no unfair labor practice
complaint pending against the Borrower or any Subsidiary or, to the knowledge of
the Borrower, threatened against any of them, before the National Labor
Relations Board that is reasonably likely to have a Material Adverse Effect; (c)
there is no grievance or significant arbitration proceeding arising out of or
under any collective bargaining agreement pending against the Borrower or any
Subsidiary or, to the knowledge of the Borrower, threatened against any of them
that is reasonably likely to have a Material Adverse Effect; (d) no slowdown or
stoppage is pending against the Borrower or any Subsidiary, or to the knowledge
of the Borrower, threatened against the Borrower or any Subsidiary, that is
reasonably likely to have a Material Adverse Effect; (e) neither the Borrower
nor any Subsidiary is engaged in any unfair labor practice that is likely to
have a Material Adverse Effect; and (f) except as set forth in Item 6.20 of the
Disclosure Schedule (none of which items disclosed therein, singly or in the
aggregate, have, or may reasonably be expected to have, a Material Adverse
Effect), there are no pending or threatened claims, complaints, notices,
inquiries or requests for information received by the Borrower or any of its
Subsidiaries with respect to any alleged violation of, or potential liability
under, any law relating to employee health and safety (including the
Occupational Safety and Health Act, 29 U.S.C.A. Section 651 et. seq.) which
could reasonably be expected to result in liability for the Borrower and its
Subsidiaries in an aggregate amount exceeding $5,000,000 (exclusive of amounts
fully covered by insurance (less any applicable deductible) and as to which the
insurer has acknowledged its responsibility to cover) or which could reasonably
be expected to result in a Material Adverse Effect.
SECTION 6.21. Utilities. All utility services necessary for the
construction and operation of the Project (including electrical and water
supply) are available to the Project and the Borrower has entered into
agreements on commercially reasonable terms for the providing of such services.
SECTION 6.22. Solvency. Each of the Borrower and each Guarantor has (a)
assets which have a present fair saleable value greater on a going-concern basis
than its liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities), (b) has sufficient cash flow to enable it to pay its
debts as they mature and (c) does not have unreasonably small capital.
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ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each
Lender, each Issuer and the Administrative Agent that until the Termination Date
has occurred, the Borrower will, and will cause its Subsidiaries to, perform or
cause to be performed the obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish or cause to be furnished to the Administrative Agent (with
sufficient copies for each Lender) copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year,
an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and consolidated
statements of income and cash flow of the Borrower and its Subsidiaries
for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter,
and including (in each case), in comparative form the figures for the
corresponding Fiscal Quarter in, and year to date portion of, the
immediately preceding Fiscal Year, certified as complete and correct by
the chief financial or accounting Authorized Officer of the Borrower;
(b) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a copy of the consolidated balance sheet
of the Borrower and its Subsidiaries, and the related consolidated
statements of income and cash flow of the Borrower and its Subsidiaries
for such Fiscal Year, setting forth in comparative form the figures for
the immediately preceding Fiscal Year, audited (without any
Impermissible Qualification) by KPMG LLP (or Xxxxxx Xxxxxxxx, Deloitte
& Touche, Ernst & Young, Price Waterhouse Coopers or any accounting
firm resulting from the merger or combination of any of the foregoing),
which shall include a calculation of Excess Cash Flow and of the
financial covenants set forth in Section 7.2.4 and stating that, in
performing the examination necessary to deliver the audited financial
statements of the Borrower, no knowledge was obtained of any Event of
Default;
(c) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), (i) a Compliance
Certificate, executed by the chief financial or accounting Authorized
Officer of the Borrower, showing compliance with the financial
covenants set forth in Section 7.2.4 (and, commencing with the first
Fiscal Quarter of the 2003 Fiscal Year, setting forth the calculation
of Excess Cash Flow for such Fiscal Quarter) and stating that no
Default has occurred and is continuing (or, if a Default has occurred,
specifying the details of such Default and the action that the Borrower
or such Obligor has taken or proposes to take with respect thereto) and
(ii) a summary with respect to the Fiscal Quarter as to which such
Compliance Certificate is being delivered of (A) the ounces of
palladium and platinum sold under each Material Supply Contract and all
Supply Contracts in the aggregate, (B) with respect to ounces sold
under Material Supply Contracts, the prices at which such ounces were
sold, and with respect to ounces sold
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under other Supply Contracts, the highest and lowest prices at which
such ounces were sold and (C) the Borrower's position under Hedging
Agreements to which it is a party;
(d) as soon as possible and in any event within three days
after the Borrower or any other Obligor obtains knowledge of the
occurrence of a Default, a statement of an Authorized Officer of the
Borrower setting forth details of such Default and the action which the
Borrower or such Obligor has taken and proposes to take with respect
thereto;
(e) as soon as possible and in any event within three days
after the Borrower or any other Obligor obtains knowledge of (i) the
occurrence of any material adverse development with respect to any
litigation, action, proceeding or labor controversy described in Item
6.7 of the Disclosure Schedule or (ii) the commencement of any
litigation, action, proceeding or labor controversy of the type and
materiality described in Section 6.7, notice thereof and, to the extent
the Administrative Agent requests, copies of all documentation relating
thereto;
(f) promptly after the sending or filing thereof, copies of
all reports, notices, prospectuses and registration statements which
any Obligor files with the SEC or any national securities exchange;
(g) promptly upon becoming aware of (i) the institution of any
steps by any Person to terminate any Pension Plan, (ii) 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, (iii)
the taking of any action with respect to a Pension Plan which could
result in the requirement that any Obligor furnish a bond or other
security to the PBGC or such Pension Plan, or (iv) the occurrence of
any event with respect to any Pension Plan which could reasonably be
expected to result in the incurrence by any Obligor of any material
liability, fine or penalty, notice thereof and copies of all
documentation relating thereto;
(h) promptly following the mailing or receipt of any notice or
report delivered under the terms of any Subordinated Debt, copies of
such notice or report;
(i) as soon as available, and in any event within 30 days
after the end of each calendar month, with a concurrent copy to the
Technical Agent, (i) a monthly mine manager's report, which report
shall include, among other information, a written discussion detailing
a comparison of all operating and cost parameters on an actual versus
budget basis (it being acknowledged and agreed by the Borrower that the
first such monthly report to be delivered in any calendar year
(commencing with the 2001 calendar year) shall contain a written
discussion detailing a comparison of the operations of the Borrower and
its Subsidiaries for the prior calendar year to the Mine Plans in
effect during such calendar year) and (ii) a monthly management
construction progress report, which report shall include, among other
information, a written discussion detailing a comparison of actual
construction progress with respect to each Mine to the planned
development schedule for such Mine;
(j) as soon as available and, in any event, within 30 days (in
the case of capital and operating budgets) and 90 days (in the case of
Mine Plans) after the end of each
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Fiscal Year, with a concurrent copy to the Technical Agent, updated
capital and operating budgets and Mine Plans. Each such Mine Plan that,
in the opinion of the Technical Agent or the Administrative Agent, has
a material variation from the previously prepared corresponding Mine
Plan or the corresponding Mine Plan in effect on the Closing Date shall
have been approved by the Administrative Agent and the Technical Agent,
as provided in this clause (j) (it being acknowledged and agreed by the
Borrower, the Lenders, the Technical Agent and the Administrative Agent
that (i) any variation from the previously prepared corresponding Mine
Plan or the corresponding Mine Plan in effect on the Closing Date that
would be reasonably likely to result in a Default described in Section
8.1.14 shall constitute a material variation for purposes of this
clause (j) and (ii) the Technical Agent and the Administrative Agent
may seek the advice of the Mining Consultant with respect to any or all
aspects of each Mine Plan delivered hereunder);
(k) within 15 days of receipt thereof by the Borrower (with a
concurrent copy to the Technical Agent), copies of each update to the
Borrower's Proven Reserves and Probable Reserves prepared by a third
party acceptable to the Administrative Agent, the Technical Agent and
the Required Lenders (it being acknowledged and agreed by the
Administrative Agent and the Lenders that Xxxxx Xxxxxxx & Company, Inc.
is an acceptable third party). The initial update pursuant to this
clause (k) shall be prepared no later than March 31, 2002 and,
following the preparation thereof, at least annually thereafter and
shall reflect year-over-year changes, including a reconciliation of
actual tons and grade mined compared to projections for the areas mined
and an explanation of any changes to the parameters related to the
geologic model with respect to such reserves. The Borrower shall
continue to report its Proven Reserves and Probable Reserves at each of
the Xxx Mine and the East Boulder Mine in each of its filings with the
SEC on Form 10-K (which reports the Borrower acknowledges shall
constitute, for the avoidance of doubt, information furnished to the
Lenders for purposes of Section 6.13);
(l) notice of any unscheduled shutdowns of the mining and
smelting operations of the Borrower and its Subsidiaries which might
have a Material Adverse Effect;
(m) as soon as possible, but in no event later than 10 days
after execution and delivery thereof, copies of each Supply Contract
not previously delivered to the Administrative Agent;
(n) annually, not later than one month prior to the expiry of
each insurance policy maintained by the Borrower and its Subsidiaries,
information confirming the renewal of such policy and a summary of the
insurance maintained thereunder, together with a certificate from a
representative of the Borrower, with respect to the accuracy and
completeness of such information and summary, and, if requested by the
Administrative Agent, certificates addressed to the Administrative
Agent from the companies issuing such insurance confirming the renewal
of and specifying such insurance coverage and the Borrower's compliance
with Section 7.1.4;
(o) promptly notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to, or as to compliance with, laws relating to
employee health and safety (including the Occupational Health and
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Safety Act, 29 U.S.C.A. Section 651 et. seq.), to the extent conditions
described in such claims, complaints, notices and inquiries could
reasonably be expected to result in a liability for the Borrower and
its Subsidiaries in an aggregate amount exceeding $2,500,000 and shall
promptly resolve any material non-compliance with such laws and keep
its property free of any Lien imposed by such laws; and
(p) such other financial and other information as any Lender
or Issuer through the Administrative Agent may from time to time
reasonably request (including hedging positions (if applicable),
environmental assessment/audit reports, and other information and
reports in such detail as the Administrative Agent or Technical Agent
may reasonably request).
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc. The
Borrower will, and will cause each of its Subsidiaries to,
(a) except as otherwise permitted by Section 7.2.10, preserve
and maintain its legal existence; and
(b) comply in all material respects with all applicable laws,
rules, regulations and orders, including the payment (before the same
become delinquent), of all taxes, assessments and governmental charges
imposed upon the Borrower or its Subsidiaries or upon their property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside on the books of the Borrower or its
Subsidiaries, as applicable.
SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep:
(a) all its and their ownership, lease, use, license and other
interests in the Project (including all unpatented and patented mining
claims) as are necessary or advisable for the Borrower to be able to
operate the Mines substantially in accordance with sound mining and
business practice, in compliance with the Mortgages and in a manner
such that the requirements of, and projections contained in, the Mine
Plans can be achieved; and
(b) its and their respective properties in good repair,
working order and condition (ordinary wear and tear excepted), and make
necessary repairs, renewals and replacements so that the business
carried on by the Borrower and its Subsidiaries may be properly
conducted at all times, unless the Borrower or such Subsidiary
determines in good faith that the continued maintenance of any such
property is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to property and risks of a character
usually maintained by Persons of comparable size engaged in the same or similar
business and similarly situated, against loss, damage and liability of the kinds
and in the amounts customarily maintained by such Persons and shall ensure that
each refiner, processor, warehouseman, transporter or other Person that at any
time has
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possession of any inventory or other assets of the Borrower or its Subsidiaries
maintains insurance with financially sound and reputable insurance companies
over such inventory or other assets with respect to property and risks of a
character usually maintained by Persons of comparable size engaged in the same
or similar business and similarly situated against loss, damage and liability of
the kinds and in the amounts customarily maintained by such Persons. In any
event, the following insurance will be maintained as indicated below.
(a) Borrower's Insurance. The Borrower will maintain at a
minimum (with respect to itself and each of its Subsidiaries):
(i) Property, Boiler & Machinery & Business
Interruption Insurance. Insurance (including loss of use of
operating facilities and business interruption insurance)
against loss (including loss of profits) and damage covering
all of the tangible real and personal property and
improvements of the Borrower and each of its Subsidiaries
(including tunnel boring machines) by reason of any Insured
Peril (as defined below) for an amount not less than
$350,000,000, and as shall be reasonable and customary and
sufficient to avoid the insured named therein from becoming a
co-insurer of any loss under such policy.
(ii) Comprehensive General Liability Insurance,
Workers' Compensation and/or Umbrella/Excess Insurance. A
general liability policy against claims for bodily injury,
death or property damage and products and completed operations
liability occurring on, in or about the properties owned or
operated by the Borrower and its Subsidiaries (and adjoining
streets, sidewalks and waterways) and workers' compensation
insurance and employers' liability insurance covering the
Borrower and its Subsidiaries, in amounts and coverages
comparable in all respects with insurance carried by
responsible owners and operators of businesses similar to
those of the Borrower and its Subsidiaries and for property
similar in use in the jurisdictions where such properties are
located, but in no event less than $20,000,000 inclusive per
occurrence and in the aggregate, and such insurance shall
contain all standard extensions customary for such policy.
(iii) Automobile Liability Insurance for Bodily
Injury and Property Damage. Insurance against liability for
bodily injury and property damage in respect of all vehicles
(whether owned, hired or rented by the Borrower or any of its
Subsidiaries) at any time located at, or used in connection
with, its properties or operations in such amounts as are then
customary for vehicles used in connection with similar
properties and businesses and to the extent required by law,
but in no event less than $1,000,000 combined single limit
liability.
(b) Third Party Construction Insurance. The Borrower will
ensure that each Person contracted by the Borrower or any of its
Subsidiaries to perform construction or related services with respect
to, or to provide equipment with respect to, the Project maintains at a
minimum the following insurance:
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(i) Equipment Insurance. Contractors equipment
insurance covering equipment and tools, owned, rented or
leased, for the full cost of replacement of such equipment on
an "all risks" basis.
(ii) Comprehensive General Liability Insurance. A
general liability policy with limits of not less than the
Applicable GL Threshold (as defined below) inclusive per
occurrence against claims for bodily injury, death or property
damage including loss of use thereof. Coverage shall
specifically include, but not be limited to, coverage for
damage to property adjacent to the property owned or operated
by the Borrower or its Subsidiaries. Such insurance shall
contain all standard extensions customary for such policy and
a waiver by the insurer of subrogation rights against the
Borrower. For purposes of this Section 7.1.4, "Applicable GL
Threshold" means (i) with respect to any Person described in
Part A of Schedule III attached hereto, the amount set forth
opposite such Person's name and (ii) with respect to any other
Person, $2,000,000.
(iii) Workers' Compensation and Employers' Liability
Insurance. Xxxxxxx'x compensation insurance as required under
applicable law covering all persons employed by the insured,
including, but not limited to, state workers' compensation,
and employers' liability insurance with a limit of not less
than the Applicable GL Threshold (as defined above).
(iv) Automobile Liability Insurance for Bodily Injury
and Property Damage. Insurance against liability for bodily
injury and property damage in respect of all vehicles (whether
owned, hired or rented by such Person) at any time located at,
or used in connection with, the property owned or operated by
the Borrower or its Subsidiaries in such amounts as are then
customary for vehicles used in connection with similar
properties and businesses and to the extent required by law,
but in no event less than the Applicable AL Threshold (as
defined below) per accident. Such insurance shall contain a
waiver by the insurer of subrogation rights against the
Borrower. For purposes of this paragraph, "Applicable AL
Threshold" means (i) with respect to any Person described in
Part B of Schedule III attached hereto, the amount set forth
opposite such Person's name and (ii) with respect to any other
Person, $2,000,000.
(c) Third Party Engineering/Design Insurance. The Borrower
will ensure that each Person contracted by the Borrower or any of its
Subsidiaries to perform engineering and/or design or related services
with respect to the Project maintains at a minimum professional
liability insurance relating to errors and omissions in an amount not
less than the Applicable Professional Threshold (as defined below) in
the aggregate per such Person covering a period until the fourth
anniversary of the Effective Date. For purposes of this paragraph,
"Applicable Professional Threshold" means (i) with respect to any
Person described in Part C of Schedule III attached hereto, the amount
set forth opposite such Person's name and (ii) with respect to any
other Person, $2,000,000.
All such insurance shall be written by financially responsible companies
selected by the Borrower and (except for automobile insurance) having an A.M.
Best rating of "A" or better (or,
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in the case of companies providing the insurance described in clauses (b) or (c)
above, "A-" or better) and being in a financial size category of VII or larger
(or an equivalent rating of any successor publication of a similar nature), or
by other companies acceptable to the Administrative Agent, and (other than
workers' compensation) shall name the Administrative Agent as loss payee (to the
extent covering risk of loss or damage to tangible property) and as an
additional insured as its interests may appear (to the extent covering any other
risk). Each policy referred to in this Section 7.1.4 shall provide that it will
not be canceled or reduced, or allowed to lapse without renewal, except after
not less than 30 days' notice to the Administrative Agent and shall also provide
that the interests of the Administrative Agent and the Lenders shall not be
invalidated by any act or negligence of the Borrower, any of its Subsidiaries or
any Person having an interest in any property covered by a Mortgage nor by
occupancy or use of any such property for purposes more hazardous than permitted
by such policy nor by any foreclosure or other proceedings relating to such
property. The Borrower will advise the Administrative Agent promptly of any
significant policy cancellation (other than any such cancellation in connection
with the replacement thereof), reduction or amendment.
On or before the Closing Date, the Borrower will deliver to the
Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required to be
maintained by the Borrower hereunder setting forth the respective coverages,
limits of liability, carrier, policy number and period of coverage. The Borrower
will not, and will not permit any of its Subsidiaries to, obtain or carry
separate insurance concurrent in form or contributing in the event of loss with
that required by this Section 7.1.4 unless the Administrative Agent is the named
insured thereunder, for the benefit of the Secured Parties, with loss payable as
provided herein. The Borrower will immediately notify the Administrative Agent
whenever any such separate insurance is obtained and shall deliver to the
Administrative Agent the certificates evidencing the same.
Without limiting the obligations of the Borrower under the foregoing
provisions of this Section 7.1.4, in the event the Borrower shall fail to
maintain in full force and effect insurance as required by the foregoing
provisions of this Section 7.1.4, then the Administrative Agent may (upon notice
to the Borrower), but shall have no obligation so to do, procure insurance
covering the interests of the Lenders and the Administrative Agent in such
amounts and against such risks as the Administrative Agent (or the Required
Lenders) shall deem appropriate, and the Borrower shall reimburse the
Administrative Agent in respect of any premiums paid by the Administrative Agent
in respect thereof.
For purposes hereof, the term "Insured Peril" shall mean, collectively,
all risks (as such term is customarily used in the market for insurance) of
physical loss including flood, earthquake and windstorm in the jurisdictions
where the properties owned or operated by the Borrower or any of its
Subsidiaries are located.
SECTION 7.1.5. Books and Records; Annual Assessment Meeting. (a) The
Borrower will, and will cause each of its Subsidiaries to, keep books and
records in accordance with GAAP which accurately reflect all of its business
affairs and transactions and permit the Administrative Agent or the Technical
Agent or any of their respective representatives (including the Mining
Consultant), at reasonable times and intervals upon reasonable notice to the
Borrower, to inspect any and all of the properties and operations of the
Borrower (including the Mines) and to visit
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each Obligor's offices (it being understood that, without limiting the
generality of this paragraph, the Mining Consultant shall be permitted to visit
and inspect each Mine not less than once every three (3) month period), to
discuss such Obligor's financial matters with its officers and employees and its
independent public accountants (and the Borrower hereby authorizes such
independent public accountant to discuss the Borrower's and each Obligor's
financial matters with the Administrative Agent or its representatives whether
or not any representative of the Borrower or such Obligor is present) and to
examine (and photocopy extracts from) any of its books and records. The Borrower
shall be afforded an opportunity to be present at, or party to, each such
inspection, visit and discussion, provided that the right of the Administrative
Agent and the Technical Agent and their respective representatives to conduct
any such inspection, visit or discussion shall not be adversely affected by the
Borrower's failure to be so present or to be a party thereto. Unless a Default
has occurred and is continuing, the Borrower shall only be required to pay the
costs and expenses incurred in connection with the Administrative Agent's
exercise of its rights pursuant to this Section with respect to two inspections
per calendar year and in connection with the Technical Agent's exercise of its
rights pursuant to this Section with respect to one inspection per calendar
year.
(b) The Borrower shall also arrange an annual meeting of the
Lenders, at a location to be determined by the Administrative Agent,
pursuant to which meeting the Lenders will be given an opportunity to
discuss the progress of the Project and the operations of the Borrower
and its Subsidiaries with the officers and employees of the Borrower,
including an opportunity to visit and inspect the Project site with
such officers and/or employees. The Borrower shall provide at least 30
days' prior written notice of such meeting and such meeting shall occur
on a Business Day. Unless a Default has occurred and is continuing, the
costs and expenses of a Lender attending such annual meeting shall be
the responsibility of such Lender.
SECTION 7.1.6. Environmental Law Covenant. The Borrower will, and will
cause each of its Subsidiaries to,
(a) use and operate all of its and their facilities and
properties in material compliance with all Environmental Laws, keep, or
timely apply for renewal of, all necessary permits, approvals,
certificates, licenses and other authorizations relating to
environmental matters and required for current operations (including
completion of the Project) in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance
with all applicable Environmental Laws; and
(b) promptly notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties in
respect of, or as to compliance with, Environmental Laws, to the extent
conditions described in such claims, complaints, notices and inquiries
could reasonably be expected to result in a liability for the Borrower
and its Subsidiaries in an aggregate amount exceeding $2,500,000 and
shall promptly resolve any material non-compliance with Environmental
Laws and keep its property free of any Lien imposed by any
Environmental Law.
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SECTION 7.1.7. Use of Proceeds. The Borrower will apply the proceeds of
the Credit Extensions as follows:
(a) the proceeds of the Term Loans shall be used (i) to
refinance amounts outstanding under the Existing Credit Facility, (ii)
to provide for capital expenditures related to continuing (A) the
expansion of the Xxx Mine, (B) the construction of the East Boulder
Mine and (C) the expansion of the Borrower's processing facilities
located in Columbus, Montana, and (iii) to provide for the working
capital needs of the Borrower; provided that, in the event that all of
such proceeds are not so utilized as of the Closing Date, the portion
of such proceeds not so utilized shall be deposited into an account
specified by the Administrative Agent where such proceeds shall be held
as collateral security for the Obligations until utilized by the
Borrower in accordance with the terms of this Agreement and the other
Loan Documents; and
(b) the proceeds of Revolving Loans shall be used to provide
for the general corporate and working capital needs of the Borrower and
to pay fees and expenses related to the Transaction, including for the
issuing of Letters of Credit for the account of the Borrower.
SECTION 7.1.8. Additional Real Property. The Borrower shall, and shall
cause each of its Subsidiaries to, cause the Administrative Agent and the
Lenders to have at all times a first priority perfected security interest
(subject only to Permitted Liens) in all of the real property acquired from time
to time by the Borrower and its Subsidiaries (other than any such real property
that, when added to the net book value of all other real property acquired by
the Borrower and its Subsidiaries in the calendar year in which such
determination is being made, has a net book value of less than $1,000,000);
provided, however, that, in the event such real property is owned by a Foreign
Subsidiary (other than a Foreign Subsidiary that (i) is treated as a partnership
under the Code or (ii) is not treated as an entity that is separate from (A) the
Borrower, (B) any Person that is treated as a partnership under the Code or (C)
any "United States person" (as defined in Section 7701(a)(30) of the Code)),
such Subsidiary shall not be required to grant such security interest (1) if the
Required Lenders have otherwise agreed or (2) to the extent such grant could
reasonably be expected to constitute at any time an investment of earnings in
United States property under Section 956 (or any successor provision thereto) of
the Code that would increase the amount of United States federal income tax that
would otherwise be payable by the Borrower and the other members of the
affiliated group of corporations filing a consolidated federal income tax return
with the Borrower in the absence of such grant, as determined by the Borrower
based on existing financial statements and on financial projections prepared in
good faith based upon assumptions which the Borrower believes to be reasonable
and as evidenced by a certificate of the chief financial Authorized Officer of
the Borrower that is accepted in writing by the Administrative Agent (such
acceptance not to be unreasonably withheld and which acceptance shall be deemed
to have occurred in the absence of a written notice from the Administrative
Agent that is given to the Borrower within five Business Days of the
Administrative Agent's receipt of such certificate, indicating the reasons for
not accepting such certificate); provided, further, however, that, in the event
of any change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive or guideline
of any Governmental Authority that could reasonably be expected to alter the
conclusion set forth in such certificate, the Administrative
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Agent or the Required Lenders may request the Borrower to deliver another such
certificate in light of such event and, in the absence of the delivery and
acceptance of such certificate as provided above, require the grant of such
security interest. Without limiting the generality of the foregoing, the
Borrower shall, and shall cause each such Subsidiary to, execute and deliver or
cause to be executed and delivered Mortgages, that may be necessary or, in the
opinion of the Administrative Agent, desirable to create a valid, perfected Lien
against such real property, together with
(a) evidence of the completion (or satisfactory arrangements
for the completion) of all recordings and filings of each such Mortgage
as may be necessary or, in the reasonable opinion of the Administrative
Agent, desirable to create a valid, perfected and (subject to Permitted
Liens) first priority Lien against the properties purported to be
covered thereby;
(b) (i) mortgagee's title insurance policies with respect to
property purported to be covered by such Mortgage (except patented and
unpatented mining and millsite claims) in favor of the Administrative
Agent for the benefit of the Secured Parties in amounts and in form and
substance and issued by insurers reasonably satisfactory to the
Administrative Agent addressed to the Administrative Agent and the
Lenders, insuring that title to such property is marketable and that
the interests created by such Mortgage constitute valid, perfected
first priority Liens thereon free and clear of all defects and
encumbrances other than as approved by the Administrative Agent, and
such policies shall also include a survey reading, and, if required by
the Administrative Agent and if available, revolving credit
endorsement, comprehensive endorsement, variable rate endorsement,
access and utilities endorsements, mechanic's lien endorsement and such
other endorsements as the Administrative Agent shall reasonably request
and shall be accompanied by evidence of the payment in full of all
premiums thereon, and (ii) mortgagee's title opinions with respect to
patented and unpatented mining and millsite claims purported to be
covered by such Mortgage in favor of the Administrative Agent for the
benefit of the Secured Parties addressed to the Administrative Agent
and the Lenders and in form and substance reasonably satisfactory to
the Administrative Agent;
(c) U.C.C. financing statements related to the security
interests created by each such Mortgage, together with evidence of the
completion (or satisfactory arrangements for the completion) of all
recordings and filings of such financing statements in the appropriate
offices and records as may be necessary or, in the reasonable opinion
of the Administrative Agent, desirable to create valid, perfected and
(subject to Permitted Liens) first priority Liens against the
improvements purported to be covered thereby; and
(d) such other approvals, opinions or documents as the
Administrative Agent may reasonably request, including a current survey
(or, in the case of property in respect of a Mine, the most recently
completed mineral survey) of each property purported to be covered by
each such Mortgage in form and substance satisfactory to the
Administrative Agent and the title insurer.
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SECTION 7.1.9. Future Subsidiaries. Without limiting the effect of any
provision contained herein (including Section 7.2.5), upon any Person becoming
either a direct or indirect Subsidiary of the Borrower,
(a) such Person, if not theretofore a party to a Subsidiary
Security Agreement and Subsidiary Guaranty, shall execute and deliver
to the Administrative Agent a Subsidiary Security Agreement and
Subsidiary Guaranty for the benefit of the Secured Parties; provided,
however, that, in the event such Subsidiary is a Foreign Subsidiary
(other than a Foreign Subsidiary that (i) is treated as a partnership
under the Code or (ii) is not treated as an entity that is separate
from (A) the Borrower, (B) any Person that is treated as a partnership
under the Code or (C) any "United States person" (as defined in Section
7701(a)(30) of the Code)), such Subsidiary shall not be required to
become a guarantor under Subsidiary Guaranty or execute and deliver a
Subsidiary Security Agreement (1) if the Required Lenders have
otherwise agreed or (2) to the extent such guaranty could reasonably be
expected to constitute at any time an investment of earnings in United
States property under Section 956 (or any successor provision thereto)
of the Code that would increase the amount of United States federal
income tax that would otherwise be payable by the Borrower and the
other members of the affiliated group of corporations filing a
consolidated federal income tax return with the Borrower in the absence
of such guaranty, as determined by the Borrower based on existing
financial statements and on financial projections prepared in good
faith based upon assumptions which the Borrower believes to be
reasonable and as evidenced by a certificate of the chief financial
Authorized Officer of the Borrower that is accepted in writing by the
Administrative Agent (such acceptance not to be unreasonably withheld
and which acceptance shall be deemed to have occurred in the absence of
a written notice from the Administrative Agent that is given to the
Borrower within five Business Days of the Administrative Agent's
receipt of such certificate, indicating the reasons for not accepting
such certificate); provided, further, however, that, in the event of
any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive or guideline of any Governmental Authority that could
reasonably be expected to alter the conclusion set forth in such
certificate, the Administrative Agent or the Required Lenders may
request the Borrower to deliver another such certificate in light of
such event and, in the absence of the delivery and acceptance of such
certificate as provided above, require the execution and delivery by
such Person of such Subsidiary Guaranty;
(b) the Borrower or, if not the Borrower, the Subsidiary of
the Borrower (provided such Subsidiary is not a Foreign Subsidiary
exempted from the requirement of becoming a Guarantor as a result of
the proviso to the preceding clause (a)) that will own shares of the
Capital Stock of such Person (which Subsidiary, if not theretofore a
party to a Subsidiary Security Agreement, shall execute and deliver to
the Administrative Agent a Subsidiary Security Agreement for the
purpose of becoming a pledgor thereunder), shall, pursuant to the
applicable Security Agreement, pledge to the Administrative Agent, for
the benefit of the Secured Parties, (i) all of the outstanding shares
of the Capital Stock of such Person owned by the Borrower or such
Subsidiary, together with (A) undated stock powers or equivalent
instruments of transfer satisfactory to the Administrative Agent for
such certificates or such other evidence of beneficial ownership,
executed in blank (or, if
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any such shares of Capital Stock are uncertificated, confirmation and
evidence satisfactory to the Administrative Agent that the security
interest in such uncertificated securities has been perfected by the
Administrative Agent in accordance with the U.C.C. or any similar or
local law which may be applicable) and (B) executed copies of U.C.C.
financing statements naming the Borrower or such Subsidiary as the
debtor and the Administrative Agent as the secured party, suitable for
filing under the U.C.C. of all jurisdictions as may be necessary or, in
the reasonable opinion of the Administrative Agent, desirable to
perfect the security interest of the Administrative Agent in the
interests of the Borrower or such Subsidiary in such Person pledged
pursuant to such Security Agreement; provided, however, that the
Borrower or such Subsidiary shall not be required to pledge the shares
of Capital Stock of a Foreign Subsidiary required to be pledged
hereunder (1) if the Required Lenders have otherwise agreed or (2) to
the extent such pledge could reasonably be expected to constitute at
any time an investment of earnings in United States property under
Section 956 (or any successor provision thereto) of the Code that would
increase by a material amount the amount of United States federal
income tax that would otherwise be payable by the Borrower and the
other members of the affiliated group of corporations filing a
consolidated federal income tax return with the Borrower in the absence
of such pledge, as determined by the Borrower based on existing
financial statements and on financial projections prepared in good
faith based upon assumptions which the Borrower believes to be
reasonable and as evidenced by a certificate of the chief financial
Authorized Officer of the Borrower that is accepted in writing by the
Administrative Agent (such acceptance not to be unreasonably withheld
and which acceptance shall be deemed to have occurred in the absence of
a written notice from the Administrative Agent that is given to the
Borrower within five Business Days of the Administrative Agent's
receipt of such certificate, indicating the reasons for not accepting
such certificate); provided further, however, that, in the event of any
change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive or guideline of any Governmental Authority that could
reasonably be expected to alter the conclusion set forth in such
certificate, the Administrative Agent or the Required Lenders may
request the Borrower to deliver another such certificate in light of
such event and, in the absence of the delivery and acceptance of such
certificate as provided above, require the pledge of such shares of
Capital Stock;
(c) the Administrative Agent shall have received from each
such Person certified copies of U.C.C. Requests for Information or
Copies (Form UCC-11), or a similar search report certified by a party
acceptable to the Administrative Agent, dated a date reasonably near
(but prior to) the date of any such Person becoming a direct or
indirect Subsidiary of the Person, listing all effective financing
statements, tax liens and judgment liens which name such Person as the
debtor and which are filed in the jurisdictions in which filings are to
be made pursuant to this Agreement and the other Loan Documents, and in
such other jurisdictions as the Administrative Agent may reasonably
request, together with copies of such financing statements (none of
which (other than financing statements (i) filed pursuant to the terms
hereof in favor of the Administrative Agent, if such Form UCC-11 or
search report, as the case may be, is current enough to list such
financing statements, (ii) being terminated pursuant to termination
statements that are to be delivered on or prior to the date such Person
becomes such Subsidiary or (iii) in respect
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of Liens permitted under Section 7.2.3) shall cover any of the
collateral described in the Security Agreements);
(d) the Administrative Agent shall have received from each
such Person (i) executed copies of U.C.C. financing statements naming
each such Person as the debtor and the Administrative Agent as the
secured party, for the benefit of the Secured Parties, suitable for
filing under the U.C.C. of all jurisdictions as may be necessary or, in
the reasonable opinion of the Administrative Agent, desirable to
perfect the security interest of the Administrative Agent pursuant to
the Security Agreement entered into by such Person, and (ii) an
executed Perfection Certificate (as defined in the applicable Security
Agreement); and
(e) the Administrative Agent shall have received from such
Person or the Borrower (i) all applicable Counterparty Notices required
to be delivered pursuant to Sections 3.6 and 4.10(h) of a Security
Agreement and/or Sections 2.10 and 3.3(c) of a Mortgage, and (ii)
landlord lien notices with respect to each lessor of premises leased to
such Subsidiary with respect to the assets of such Subsidiary located
on such premises,
together, in each case, with such opinions of legal counsel as the
Administrative Agent may reasonably request, which legal opinions shall be in
form and substance reasonably satisfactory to the Administrative Agent.
SECTION 7.1.10. Additional Collateral. Without limiting the provisions
of Sections 7.1.8 and 7.1.9, the Borrower shall, and shall cause each Subsidiary
(other than Evergreen or a Subsidiary exempted from the requirement of granting
a security interest as a result of the proviso to the first sentence of Section
7.1.8) to, cause the Lenders to have at all times a first priority perfected
security interest (subject only to Liens and encumbrances permitted under
Section 7.2.3 and the exclusions set forth in Sections 7.1.8 and 7.1.9) in all
of the property (real and personal) owned from time to time by the Borrower and
such Subsidiary (other than Excluded Real Property) to the extent the same
constitutes or would constitute collateral under a Security Agreement or
Mortgage.
SECTION 7.1.11. Provision of Staff. The Borrower shall ensure that
there are sufficient competent technical and management employees engaged in
connection with the Mines with a view to enabling the construction, development,
operation and maintenance of the Mines substantially in accordance with the Mine
Plans.
SECTION 7.1.12. Supply Contracts. The Borrower shall comply in all
material respects with all terms and provisions of the Material Supply Contracts
and shall promptly notify the Administrative Agent and provide copies upon
receipt of all notices or claims relating to any non-compliance or breach by
either the Borrower or any Material Supply Contract Counterparty under any
Material Supply Contract and information detailing the nature of such
non-compliance or breach and any proposed plans and time periods for remedying
such non-compliance or breach.
SECTION 7.1.13. Material Supply Contracts; Counterparty Notices. The
Borrower shall use its reasonable best efforts to provide the Administrative
Agent with Supply Contract
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Counterparty Notices duly executed by each Material Supply Contract Counterparty
as soon as practicable following the Closing Date to the extent such executed
Supply Contract Counterparty Notices were not delivered to the Administrative
Agent on or prior to the Closing Date.
SECTION 7.1.14. Economic Development Revenue Bond Tax Event. The
Borrower shall use its reasonable best efforts to contest, either directly or in
the name of the holder of any Economic Development Revenue Bond, to the fullest
extent permitted by the Permitted Revenue Bond Documents and applicable law, any
determination by the Internal Revenue Service or a Federal court that any
interest paid or payable on any Economic Development Revenue Bond is or was
includable in the gross income of any holder of such Economic Development
Revenue Bond, other than a holder who is a "substantial user" of the Project or
a "related person" within the meaning of Section 147(a) of the Code.
SECTION 7.2. Negative Covenants. The Borrower covenants and agrees with
each Lender, each Issuer and the Administrative Agent that until the Termination
Date has occurred, the Borrower will, and will cause its Subsidiaries to,
perform or cause to be performed the obligations set forth below.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Subsidiaries to:
(a) engage in any business activity except those business
activities engaged in on the date of this Agreement and activities
reasonably incidental thereto; and
(b) cease operations at the principal operating properties of
the Borrower and of its Subsidiaries, respectively, or cease work with
respect to any aspect of the Project that would reasonably be expected
to prevent completion of the Project in accordance with the Mine Plans,
other than for (i) scheduled maintenance and repair as provided for in
the Mine Plan, (ii) emergency repair in order to prevent potential
serious harm to human life or the occurrence of a Material Adverse
Effect, (iii) acts of God and other events beyond the reasonable
control of the Borrower, such as explosions, fires, floods, accidents,
war or warlike hostilities, riots, earthquakes, power shortages, labor
disputes (to the extent the period of time any such labor dispute
(inclusive of all related labor disputes) is in effect does not exceed
45 days) and acts of military or police authority (each of the
foregoing events described in this subclause (iii) being a "Force
Majeure Event"); provided that, in each such case of cessation, such
operations or work are resumed as soon as reasonably practicable (it
being understood and agreed that the occurrence of any such cessation
shall not be deemed to excuse or prevent the occurrence of any other
Default or Event of Default hereunder).
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, other than:
(a) Indebtedness in respect of the Obligations;
(b) until the date of the initial Credit Extension,
Indebtedness related to the Existing Credit Facility;
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(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) of the Disclosure Schedule, and Refinancing
or renewal of such Indebtedness;
(d) unsecured Indebtedness (i) incurred in the ordinary course
of business of the Borrower and its Subsidiaries (including open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services which are not overdue for a period of
more than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of the Borrower or such Subsidiary) and (ii)
in respect of performance, reclamation, surety or appeal bonds provided
in the ordinary course of business or letters of credit issued in lieu
of such bonds, but excluding (in each case), Indebtedness incurred
through the borrowing of money or Contingent Liabilities in respect
thereof;
(e) Indebtedness (i) in respect of industrial revenue bonds or
other similar governmental or municipal bonds, (ii) evidencing the
deferred purchase price of newly acquired property or incurred to
finance the acquisition of equipment of the Borrower and its
Subsidiaries (pursuant to purchase money mortgages or otherwise,
whether owed to the seller or a third party) used in the ordinary
course of business of the Borrower and its Subsidiaries (provided that
such Indebtedness is incurred within 60 days of the acquisition of such
property) and (iii) in respect of Capitalized Lease Liabilities;
provided that the aggregate amount of all Indebtedness outstanding
pursuant to this clause, together with the aggregate amount of the
Capitalized Lease Liabilities permitted pursuant to clause (c) of this
Section 7.2.2 outstanding, shall not at any time exceed $15,000,000;
(f) Indebtedness of any Guarantor that is a Wholly Owned
Subsidiary owing to the Borrower or any other Guarantor that is a
Wholly Owned Subsidiary, which Indebtedness
(i) shall be evidenced by one or more promissory
notes in form and substance satisfactory to the Administrative
Agent, duly executed and delivered in pledge to the
Administrative Agent pursuant to a Loan Document, and shall
not be forgiven or otherwise discharged for any consideration
other than payment in full or in part in cash (provided that
only the amount repaid in part shall be discharged); and
(ii) if incurred by a Foreign Subsidiary, shall not
(when aggregated with the amount of Investments made by the
Borrower and the Guarantors in Foreign Subsidiaries under
clause (e)(i) of Section 7.2.5), exceed $1,000,000;
(g) unsecured Indebtedness of the Borrower owing to a
Subsidiary that has previously executed and delivered to the
Administrative Agent for the benefit of the Secured Parties the
Intercompany Subordination Agreement;
(h) Permitted Revenue Bond Indebtedness;
(i) Indebtedness of a Person that becomes a Subsidiary of the
Borrower pursuant to a Permitted Acquisition and Indebtedness otherwise
assumed by the Borrower or any
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of its Subsidiaries in connection with a Permitted Acquisition;
provided that (A) such Indebtedness existed prior to the applicable
Permitted Acquisition and was not incurred or created in anticipation
thereof and (B) all such Indebtedness so assumed, together with the
aggregate amount of cash expended in all Acquisitions consummated since
the date hereof, does not exceed $10,000,000;
(j) Hedging Obligations (i) arising under an interest rate
swap agreement, interest rate cap agreement, interest rate collar
agreement or other arrangement designed to protect the Borrower against
fluctuations in interest rates on the Term Loans, provided that the
notional amount under any such arrangement does not exceed the
aggregate principal amount of the Term Loans then outstanding, (ii)
arising under a currency exchange agreement or other arrangement
designed to protect the Borrower against fluctuations in currency
exchange rates, provided that such agreement or arrangement was not
entered into for speculative purposes and would be permitted under
Section 7.2.16 or (iii) arising under commodity swaps, commodity
hedging agreements or other arrangements designed to protect the
Borrower against fluctuations in commodity prices, provided that such
swap, agreement or arrangement would be permitted under Section 7.2.16;
(k) obligations of the Borrower or any of its Subsidiaries to
repurchase from a Person palladium, platinum or rhodium that was sold
for cash by the Borrower or such Subsidiary to such Person from that
portion of the Borrower's or such Subsidiary's inventory of palladium,
platinum or rhodium that was not subject to delivery to ultimate
purchasers prior to the date such obligation to repurchase would
mature; provided that (i) such obligation to repurchase is incurred at
the time the relevant palladium, platinum or rhodium was sold to such
Person and matures within 180 days (or, in the case of rhodium, 360
days) of the date the relevant palladium, platinum or rhodium was sold
to such Person (the number of days between the date of such sale and
the maturity of such obligation, the "Relevant Term") and (ii) the
aggregate amount of such obligation to repurchase does not exceed the
sum of (A) the aggregate amount received by the Borrower or such
Subsidiary from the sale of such palladium, platinum or rhodium to such
Person and (B) the amount of interest on such aggregate amount that
would accrue during the Relevant Term assuming a rate of interest equal
to the Alternate Base Rate; and
(l) other Indebtedness of the Borrower and its Subsidiaries
(other than Indebtedness of Foreign Subsidiaries owing to the Borrower
or Domestic Subsidiaries) in an aggregate amount at any time
outstanding not to exceed $2,000,000.
provided, however, that no Indebtedness otherwise permitted by clause (e),
(f)(ii), (i) or (l) shall be assumed or otherwise incurred if a Default has
occurred and is then continuing or would result therefrom.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or permit to exist any Lien upon any
of its property (including Capital Stock of any Person), revenues or assets,
whether now owned or hereafter acquired, except:
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(a) Liens securing payment of the Obligations;
(b) until the date of the initial Credit Extension, Liens
securing payment of Indebtedness of the type described in clause (b) of
Section 7.2.2;
(c) Liens existing as of the Effective Date and disclosed in
Item 7.2.3(c) of the Disclosure Schedule securing Indebtedness
described in such Item 7.2.3(c), and Refinancings or renewals of such
Indebtedness; provided that no such Lien shall encumber any additional
property and the amount of Indebtedness secured by such Lien is not
increased from that existing on the Effective Date (as such
Indebtedness may have been permanently reduced subsequent to the
Effective Date);
(d) Liens securing Indebtedness of the type permitted under
clause (e) of Section 7.2.2; provided that (i) such Lien is granted
within 60 days after such Indebtedness is incurred, (ii) the
Indebtedness secured thereby does not exceed 80% (or, in the case of
Indebtedness of the type permitted by subclause (iii) of clause (e) of
Section 7.2.2, 100%) of the lesser of the cost or the fair market value
of the applicable property, improvements or equipment at the time of
such acquisition (or construction), (iii) in the event such Liens
secure Indebtedness of the type permitted under subclause (e)(i) of
Section 7.2.2, such Liens do not encumber any interest of the Borrower
or any Subsidiary in either Mine or the X-X Reef or any other asset of
the Borrower or any Subsidiary directly or indirectly involved in, or
otherwise related to, the construction or operation of the Mines or the
completion of the Project and (iv) such Lien secures only the assets
that are the subject of the Indebtedness referred to in such clause;
(e) Liens securing Indebtedness permitted by clause (i) of
Section 7.2.2; provided that such Liens existed prior to the
acquisition of such Person or Person's assets, were not created in
anticipation thereof and attach only to specific tangible assets of
such Person (and not assets of such Person generally);
(f) Liens in favor of carriers, warehousemen, mechanics,
materialmen and landlords granted in the ordinary course of business
for amounts not overdue or 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, and which at no time
exceed, in the aggregate, $5,000,000;
(g) Liens (other than Liens in favor of the PBGC) incurred or
deposits made 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, bids, leases or other similar
obligations (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety and
appeal bonds or performance bonds;
(h) judgment Liens in existence for less than 45 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 maintained with responsible
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insurance companies and which do not otherwise result in an Event of
Default under Section 8.1.6;
(i) easements, rights-of-way, zoning restrictions, minor
defects or irregularities in title and other similar encumbrances not
interfering in any material respect with the value or use of the
property to which such Lien is attached;
(j) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or 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; and
(k) other Liens (except Liens that encumber Mining Rights or
rights of the Borrower under Supply Contracts) securing Indebtedness in
an aggregate amount not to exceed $1,500,000 at any time outstanding.
SECTION 7.2.4. Financial Condition and Operations. The Borrower will
not permit to occur any of the events set forth below.
(a) The Borrower will not permit the Debt to EBITDA Ratio at
any time occurring during any period set forth below to be greater than
the ratio set forth opposite such period:
Debt to
Period EBITDA Ratio
------ ------------
Effective Date through (and including)
December 30, 2001 3.0:1.0
December 31, 2001 through (and
including) September 29, 2002 2.5:1.0
September 30, 2002 and thereafter 2.0:1.0
(b) The Borrower will not permit the Debt Service Coverage
Ratio as of the last day of any Fiscal Quarter occurring during any
period set forth below to be less than the ratio set forth opposite
such period:
Debt Service
Period Coverage Ratio
------ --------------
Effective Date through (and including)
December 30, 2002 2.0:1.0
January 1, 2003 and thereafter 3.0:1.0
(c) The Borrower will not permit the Debt to Equity Ratio at
any time to be greater than 1.0:1.0.
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SECTION 7.2.5. Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, purchase, make, incur, assume or permit to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified
in Item 7.2.5(a) of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication and subject to the proviso contained
in clause (e), Investments to the extent permitted as Indebtedness
pursuant to Section 7.2.2;
(d) Investments permitted as Capital Expenditures pursuant to
Section 7.2.7;
(e) Investments by way of contributions to capital or
purchases of equity (i) by the Borrower or any Guarantor that is a
Wholly Owned Subsidiary in other Guarantor that is a Wholly Owned
Subsidiary; provided that the aggregate amount of intercompany loans
made pursuant to clause (f)(ii) of Section 7.2.2 and Investments under
this clause made by the Borrower and Guarantors in Foreign Subsidiaries
shall not exceed $1,000,000 at any time, or (ii) by any Subsidiary in
the Borrower; provided, however, that no interests of the Borrower in
either Mine or the X-X Reef and no assets of the Borrower directly or
indirectly involved in, or otherwise related to, the construction or
operation of the Mines or the completion of the Project may be used to
make any such Investment;
(f) Investments constituting (i) accounts receivable arising,
(ii) trade debt granted or (iii) deposits made in connection with, the
sale or purchase price of goods or services, in each case in the
ordinary course of business;
(g) Investments in respect of Permitted Acquisitions;
(h) Investments consisting of any deferred portion of the
consideration received by the Borrower or any Subsidiary in connection
with any Disposition permitted under Section 7.2.11; and
(i) other Investments in an amount not to exceed $5,000,000
over the term of this Agreement;
provided, however, that
(i) any Investment which when made complies with the
requirements of clause (a), (b) or (c) of the definition of
the term "Cash Equivalent Investment" may continue to be held
notwithstanding that such Investment if made thereafter would
not comply with such requirements; and
(ii) no Investment otherwise permitted by clause (d),
(e), (g) or (i) shall be permitted to be made if any Default
has occurred and is continuing or would result therefrom.
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SECTION 7.2.6. Restricted Payments, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, declare or make a Restricted
Payment, or make any deposit for any Restricted Payment, other than:
(a) dividends or distributions payable in common stock of the
Borrower (it being understood and agreed that only issuances of shares
of the common stock of the Borrower (whether treasury shares or
otherwise) are permitted pursuant to this clause); and
(b) Restricted Payments made by Subsidiaries to the Borrower
or to Wholly Owned Subsidiaries.
SECTION 7.2.7. Capital Expenditures, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year, except (subject (in the case of Capitalized
Lease Liabilities) to clause (e) of Section 7.2.2) Capital Expenditures
(exclusive of interest capitalized in accordance with GAAP) which do not
aggregate in excess of the amount set forth below opposite such Fiscal Year:
Capital
Expenditure Amount
Fiscal Year (in millions)
----------- ------------------
2001 $252.0
2002 $212.5
2003 $143.0
2004 $109.0
2005 $112.5
2006 $112.5
2007 $112.5
provided, however, that
(i) in the event Capital Expenditures described in
any capital budget for any Fiscal Year furnished pursuant to
clause (j) of Section 7.1.1 are not made or committed to be
made by the Borrower during such Fiscal Year, but will be made
or committed to be made in the immediately succeeding Fiscal
Year (such Capital Expenditures, "Deferred Capital
Expenditures"), the Borrower may increase the maximum amount
of Capital Expenditures permitted in the immediately
succeeding Fiscal Year as specified opposite such Fiscal Year
in the table set forth above by an amount equal to such
Deferred Capital Expenditures, so long as (A) such Deferred
Capital Expenditures do not exceed $15,000,000 for such Fiscal
Year, (B) such Deferred Capital Expenditures, when added to
the Capital Expenditures actually made or committed to be made
in the Fiscal Year in which such Deferred Capital Expenditures
were initially expected to be made, would not exceed the
maximum amount of Capital Expenditures permitted in such
Fiscal Year as specified opposite such Fiscal Year in the
table set forth above, (C) the Borrower furnishes to the
Administrative Agent and the Technical Agent an
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officer's certificate describing such Deferred Capital
Expenditures and the reason for the deferral of such Capital
Expenditures and stating that the deferral of such Capital
Expenditures will not adversely affect in any material respect
the Borrower's ability to meet the Mine Plans then in effect
and (D) the Administrative Agent and the Technical Agent are
reasonably satisfied that the contents of such certificate are
true and correct; and
(ii) (A) to the extent Capital Expenditures are made
or committed to be made in any Fiscal Year set forth above in
an amount less than the maximum amount permitted for such
Fiscal Year as specified opposite such Fiscal Year in the
table set forth above (after decreasing such maximum amount by
the amount of Deferred Capital Expenditures (if any) that the
Borrower has indicated will be made or committed to be made in
the immediately succeeding Fiscal Year), the Capital
Expenditures which the Borrower or its Subsidiaries may make
or commit to make in the immediately succeeding Fiscal Year
shall be increased by 50% of the amount of the permitted
Capital Expenditures not so made or committed to be made in
the immediately preceding Fiscal Year (the "Carry-Forward
Amount");
(B) no further carry forward of such Carry-Forward
Amount to any other succeeding Fiscal Year shall be permitted;
and
(C) no portion of any Carry-Forward Amount shall be
used in the applicable Fiscal Year until the entire amount of
the Capital Expenditures permitted to be made or committed to
be made in such Fiscal Year as provided in this Section shall
have been used.
SECTION 7.2.8. No Prepayment of Subordinated Debt or Permitted Revenue
Bond Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to,
(a) make any payment or prepayment of principal of, or premium
or interest on, any Subordinated Debt or Permitted Revenue Bond
Indebtedness (i) other than the stated, scheduled date for such payment
of principal and interest set forth in the Subordinated Debt Documents
governing such Subordinated Debt or the Permitted Revenue Bond
Documents, or (ii) in the case of such Subordinated Debt, which would
violate the terms of this Agreement or the Subordinated Debt Documents
governing such Subordinated Debt;
(b) redeem, retire, purchase, defease, refinance or otherwise
acquire any Subordinated Debt or Permitted Revenue Bond Indebtedness;
or
(c) make any deposit (including the payment of amounts into a
sinking fund or other similar fund) for any of the foregoing purposes;
provided, however, that the Borrower may prepay or redeem Permitted Revenue Bond
Indebtedness (or make a deposit for either of the foregoing purposes) upon the
occurrence of an Economic Development Revenue Bond Tax Event in the event the
Borrower has complied with
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Section 7.1.14 (provided that the inclusion of this proviso herein shall not
prevent the occurrence of an Event of Default under Section 8.1.5).
SECTION 7.2.9. Stock of Subsidiaries. Except as permitted in clause (e)
of Section 7.2.5 above, the Borrower will not permit any of its Subsidiaries to
(i) issue any Capital Stock (whether for value or otherwise) to any Person other
than (in the case of Subsidiaries) to the Borrower or another Wholly Owned
Subsidiary or (ii) except to the extent permitted by Section 7.2.6, become
liable in respect of any obligation (contingent or otherwise) to purchase,
redeem, retire, acquire or make any other payment in respect of any shares of
Capital Stock of the Borrower or any Subsidiary or any option, warrant or other
right to acquire any such shares of Capital Stock.
SECTION 7.2.10. 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 Person, or otherwise enter into or
consummate any Acquisition, except
(a) any Subsidiary may liquidate or dissolve voluntarily into,
and may merge with and into, the Borrower or any other Wholly Owned
Subsidiary (provided, however, that a Guarantor may only liquidate or
dissolve into, or merge with and into, the Borrower or another
Guarantor that is a Wholly Owned Subsidiary), and the assets or stock
of any Subsidiary may be purchased or otherwise acquired by the
Borrower or any other Wholly Owned Subsidiary (provided, however, that
the assets or stock of any Guarantor may only be purchased or otherwise
acquired by the Borrower or another Guarantor); provided, further, that
in no event shall any Pledged Subsidiary consolidate with or merge with
and into any Subsidiary other than another Pledged Subsidiary that is a
Wholly Owned Subsidiary unless after giving effect thereto, the
Administrative Agent shall have a perfected pledge of, and security
interest in and to, at least the same percentage of the issued and
outstanding shares of Capital Stock of the surviving Person as the
Administrative Agent had immediately prior to such merger or
consolidation in form and substance satisfactory to the Administrative
Agent and its counsel, pursuant to such documentation and opinions as
shall be necessary in the opinion of the Administrative Agent to
create, perfect or maintain the collateral position of the
Administrative Agent and the Secured Parties therein as contemplated by
this Agreement; and
(b) the Borrower or any of its Subsidiaries may consummate a
Permitted Acquisition.
SECTION 7.2.11. Permitted Dispositions. The Borrower will not, and will
not permit any of its Subsidiaries to, Dispose of any of the Borrower's or such
Subsidiaries' assets (including accounts receivable and Capital Stock of
Subsidiaries) to any Person, including to a Subsidiary, in one transaction or
series of transactions unless (a) such Disposition is of inventory or obsolete
equipment sold in the ordinary course of business, (b) (i) such Disposition is
for not less than the fair market value of the assets to be Disposed, (ii) the
consideration received by the Borrower or applicable Subsidiary consists of at
least 80% cash and (iii) the net book value of such assets, together with the
net book value of all other assets Disposed of pursuant to this clause (b) in
the Fiscal Year during which such Disposition is to occur, does not exceed
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$1,500,000 (provided that, immediately upon any such Disposition the Debt to
EBITDA Ratio shall be recalculated excluding the cash earnings attributable to
the assets so Disposed (excluding any gain or any losses attributable to such
Disposition)), (c) such Disposition is permitted by Section 7.2.10, (d) such
Disposition is a Permitted Lease Disposition or (e) such Disposition is of
Excluded Real Property; provided, however, that the Disposition of any of the
Borrower's interests in either Mine or the X-X Reef would not constitute a
Disposition conducted in the Borrower's ordinary course of business for purposes
of this Section 7.2.11.
SECTION 7.2.12. Modification of Certain Agreements. The Borrower will
not, and will not permit any of its Subsidiaries to, consent to any amendment,
supplement, waiver or other modification of, or enter into any forbearance from
exercising any rights with respect to the terms or provisions contained in,
(a) the Subordinated Debt Documents, other than any amendment,
supplement, waiver or modification which (i) extends the date or
reduces the amount of any required repayment, prepayment or redemption
of the principal of the Subordinated Debt subject to such Subordinated
Debt Documents, (ii) reduces the rate or extends the date for payment
of the interest, premium (if any) or fees payable on the Subordinated
Debt subject to such Subordinated Debt Documents or (iii) makes the
covenants, events of default or remedies in such Subordinated Debt
Documents less restrictive on the Borrower;
(b) any of the Construction Contracts, other than any
amendment, supplement, waiver or modification which is not material and
not adverse to the Lenders or which is consented to by the Technical
Agent and the Administrative Agent (in consultation with the Lenders);
and
(c) the Permitted Revenue Bond Documents, other than any
amendment, supplement, waiver or modification which (i) extends the
date or reduces the amount of any required repayment, prepayment or
redemption of the principal of the Permitted Revenue Bond Indebtedness
or the Economic Development Revenue Bonds, (ii) reduces the rate or
extends the date for payment of the interest, premium (if any) or fees
payable on the Permitted Revenue Bond Indebtedness or the Economic
Development Revenue Bonds, or (iii) makes the covenants, events of
default, remedies or other terms in such Permitted Revenue Bond
Documents less restrictive on the Borrower and the State of Montana.
SECTION 7.2.13. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into or cause or permit to
exist any arrangement or contract (including for the purchase, lease or exchange
of property or the rendering of services) with any of its other Affiliates,
unless such arrangement or contract is on fair and reasonable terms no less
favorable to the Borrower or such Subsidiary than it could obtain in an
arm's-length transaction with a Person that is not an Affiliate.
SECTION 7.2.14. Restrictive Agreements, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any agreement prohibiting
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(a) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired;
(b) the ability of any Obligor to amend or otherwise modify
this Agreement or any other Loan Document; or
(c) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower, including by way of dividends,
advances, repayments of loans, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments.
The foregoing prohibitions shall not apply to restrictions contained (i) in this
Agreement and any other Loan Document, (ii) in the case of clause (a), any
agreement governing any Indebtedness permitted by clause (e) of Section 7.2.2 as
to the assets financed with the proceeds of such Indebtedness, or (iii) in the
case of clauses (a) and (c), any agreement of a Foreign Subsidiary governing the
Indebtedness permitted by clause (j)(ii) of Section 7.2.2.
SECTION 7.2.15. Sale and Leaseback. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly enter into any
agreement or arrangement providing for the sale or transfer by it of any
property (now owned or hereafter acquired) to a Person and the subsequent lease
or rental of such property or other similar property from such Person, except
for the sale and leaseback of certain equipment pursuant to the Purchase
Agreement and related Equipment Lease Agreement dated October 5, 1995 by and
between the Borrower and Senstar Capital Corporation and any renewals or
extensions thereof and equipment subject to a Permitted Lease Disposition.
SECTION 7.2.16. Commodity Hedging; Purchase of Platinum and Palladium.
The Borrower will not and will not permit any of its Subsidiaries to
enter into or be subject to
(a) any agreement or arrangement pursuant to which it and such
Subsidiaries are required to sell and physically deliver (i) palladium
in an aggregate amount equal to more than 100% of the Borrower's Annual
Palladium Production or (ii) platinum in an aggregate amount equal to
more than 100% of the Borrower's Annual Platinum Production, or
(b) (i) any Hedging Agreement (other than any agreement
permitted pursuant to the preceding clause (a)) relating to any
commodity that would require physical delivery of such commodity, (ii)
any Hedging Agreement (other than any agreement permitted pursuant to
the preceding clause (a)) relating to any commodity if, upon the
effective date of such Hedging Agreement, the aggregate quantity of
such commodity subject to Hedging Agreements (other than any agreement
permitted pursuant to the preceding clause (a)) of the Borrower and its
Subsidiaries would exceed 100% of the projected production of the
Borrower and its Subsidiaries of such commodity during the period
covered by such Hedging Agreements, (iii) any Hedging Agreement which,
when taken together with all other Hedging Agreements entered into by
the Borrower or such Subsidiary concurrently with such Hedging
Agreement, has a negative marked-to-market
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value at the time such agreement is effective and enforceable against
the parties thereto or (iv) any Hedging Agreement relating to any
commodity pursuant to which the obligations of the parties to such
Hedging Agreement are determined, subject to any "floor" or "cap" set
forth in such Hedging Agreement, on any basis other than a direct
linear function of the price of such commodity or an index customarily
applicable to such commodity.
SECTION 7.2.17. Take or Pay Contracts. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into or be a party to any
arrangement for the purchase of materials, supplies, or other property or
services if such arrangement by its express terms requires that payment be made
by the Borrower or such Subsidiary regardless of whether such materials,
supplies, or other property or services are delivered or furnished to it, other
than the Borrower's obligations to pay to The Montana Power Company (i) the
excess, if any, of $224,000 over the actual transportation revenues paid by the
Borrower, pursuant to Section 7.8 of the Natural Gas Intrastate Transportation
Service Agreement, dated as of November 1, 1999, and (ii) the incremental
capital costs incurred by The Montana Power Company in connection with the
provision of electrical power to the Borrower under the Agreement for Electric
Service between The Montana Power Company and the Borrower dated as of June 1,
1996, and not otherwise recovered thereunder through the receipt of ordinary
rate payments, in an amount not to exceed $1,000,000 over the term of this
Agreement.
SECTION 7.2.18. Certain Lease Arrangements. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into or be a party to any
lease or similar arrangement with respect to any property (whether real,
personal or mixed) that is not a capital lease in accordance with GAAP, unless
the present value of all of the net "minimum future lease payments" (as defined
below) required to be made pursuant to such lease or similar arrangement
(discounted at the Discount Rate), when added to the present value of all of the
net "minimum future lease payments" to be made pursuant to all other such
arrangements which shall then be in effect (discounted at the Discount Rate),
does not exceed $15,000,000. For purposes of this Section 7.2.18, "minimum
future lease payments" means, with respect to any such lease or similar
arrangement, the sum of: the minimum rent required to be paid during the term of
such lease or arrangement, any payment or guarantee that the lessee is required
to make relating to the property subject thereto at the end of the term of such
lease or arrangement, including any amount stated to purchase such property, any
amount stated to make up any specified deficiency and any amount payable for
failure to renew or extend such lease or arrangement at the expiration of such
lease or arrangement.
SECTION 7.2.19. Contracts. The Borrower will not, and will not permit
any of its Subsidiaries to, (i) enter into any Construction Contract after the
date of this Agreement without the prior written consents and approvals of such
Construction Contract from the Technical Agent and the Administrative Agent (in
consultation with the Lenders) or (ii) enter into any Supply Contract (other
than the Initial Supply Contracts) which authorizes the Supply Contract
Counterparty to set off any claim against the Borrower or any of its
Subsidiaries under any other agreement by withholding payment for any platinum,
palladium or other minerals actually delivered without the prior written
consents from the Technical Agent and the Administrative Agent (in consultation
with the Lenders).
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SECTION 7.2.20. Accounting Changes. The Borrower will not, and will not
permit any of its Subsidiaries to, change its Fiscal Year from twelve
consecutive calendar months ending on December 31.
SECTION 7.2.21. Evergreen. Notwithstanding anything to the contrary
herein, the Borrower will not permit Evergreen to conduct any business activity,
including the incurrence of any Indebtedness, the acquisition of any asset or
the entering into of any transaction or arrangement with the Borrower or any of
its Affiliates; provided, that the Borrower will use its best efforts to
conclude the dissolution of Evergreen as soon as practicable following the
Closing Date.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
or occurrences described in this Article shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default
in the payment or prepayment when due of
(a) any principal of or interest on any Loan, or any
Reimbursement Obligation or any deposit of cash for collateral purposes
pursuant to Section 2.6.4; or
(b) any fee described in Article III or any other monetary
Obligation, and such default shall continue unremedied for a period of
three days after such amount was due.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
any Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
(a) The Borrower shall default in the due performance or observance of any of
its obligations under clauses (d), (e), (g), (h), (l) and (m) of Section 7.1.1
or Section 7.2 (provided that any Default under Section 7.2.1 in respect of the
cessation of any of the principal operating properties of the Borrower and its
Subsidiaries or of work with respect to any aspect of the Project that arises
from an inability of the Borrower to obtain a required governmental
authorization, approval, license, permit or consent or a required modification
to an existing governmental authorization, approval, license, permit or consent,
notwithstanding the Borrower's best efforts to do so, shall not constitute an
Event of Default unless such Default remains unremedied for more than 15 days)
or any Obligor shall default in the due performance or observance of its
obligations under Sections 4.2, 4.3, 4.4, or 4.9 of a Security Agreement.
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(b) The Borrower shall default in the due performance or observance of
any of its obligations under clauses (a), (b), (c), (i), (f), (j), (k), (n) and
(o) of Section 7.1.1 or Section 7.1.8, 7.1.9, or 7.1.10 and such default shall
continue unremedied for a period of five days.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent or any
Lender.
SECTION 8.1.5. Default on Other Indebtedness. A 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 of its Subsidiaries or any
other Obligor having a principal amount, individually or in the aggregate, in
excess of $2,500,000 or a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness if the effect
of such default is to accelerate 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 or declare such Indebtedness to become due and
payable or to require such Indebtedness to be prepaid, redeemed, purchased or
defeased, or require an offer to purchase or defease such Indebtedness to be
made, prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $1,000,000 (exclusive of any amounts fully covered by
insurance (less any applicable deductible) and as to which the insurer has
acknowledged its responsibility to cover such judgment or order) shall be
rendered against the Borrower or any of its Subsidiaries or any other Obligor
and such judgment shall not have been vacated or discharged or stayed or bonded
pending appeal within 30 days after the entry thereof.
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 $1,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan 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, any of its
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness generally to pay, debts as they
become due;
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(b) apply for, consent to, or acquiesce in the appointment of
a trustee, receiver, sequestrator or other custodian for any
substantial part of the property of any thereof, or make a general
assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence in or permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for a substantial
part of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within 60 days;
provided that the Borrower, each Subsidiary and each other Obligor
hereby expressly authorizes each Secured Party to appear in any court
conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(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 respect thereof, and, if any
such case or proceeding is not commenced by the Borrower, any
Subsidiary or any Obligor, such case or proceeding shall be consented
to or acquiesced in by the Borrower, such Subsidiary or such Obligor,
as the case may be, or shall result in the entry of an order for relief
or shall remain for 60 days undismissed; provided that the Borrower,
each Subsidiary and each Obligor hereby expressly authorizes each
Secured Party to appear in any court conducting any such case or
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document or any
Lien granted thereunder shall (except in accordance with its terms), in whole or
in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; any Obligor or
any other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien.
SECTION 8.1.11. Failure of Subordination. Unless otherwise waived or
consented to by the Administrative Agent, the Lenders and the Issuers in
writing, the subordination provisions relating to any Subordinated Debt (the
"Subordination Provisions") shall fail to be enforceable by the Administrative
Agent, the Lenders and the Issuers in accordance with the terms thereof, or the
monetary Obligations shall fail to constitute "Senior Debt" and "Designated
Senior Debt" (or similar terms) under the applicable Subordination Provisions;
or the Borrower or any of its Subsidiaries shall, directly or indirectly,
disavow or contest in any manner (i) the effectiveness, validity or
enforceability of any of the Subordination Provisions, (ii) that the
Subordination Provisions exist for the benefit of the Administrative Agent, the
Lenders and the Issuers or (iii) that all payments of principal of or premium
and interest on the Subordinated Debt, or realized from the liquidation of any
property of any Obligor, shall be subject to the applicable Subordination
Provisions.
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SECTION 8.1.12. Non-Performance or Impairment of Material Supply
Contracts. (a) The occurrence of any amendment, waiver or other modification to
the terms relating to any Material Supply Contract (other than any amendment,
waiver or modification that does not increase the obligations of, decrease the
benefits inuring to, or otherwise adversely affect, the Borrower), or any
failure by a Material Supply Contract Counterparty to perform under any Material
Supply Contract which continues unremedied for more than 15 days beyond any
applicable grace period set forth therein (other than any failure to pay amounts
thereunder which in the aggregate for all Material Supply Contracts and all
Material Supply Contract Counterparties does not exceed $1,000,000); provided,
however, that no such amendment, waiver, modification or failure to perform
shall constitute an Event of Default if the Required Lenders conclude that such
amendment, waiver, modification or failure, as the case may be, will not be
reasonably likely to have a material adverse effect on the ability of the
Borrower or any other Obligor to pay when due any of its monetary Obligations.
(b) Any Material Supply Contract shall, in whole or in material part,
terminate, cease to be effective or cease to be the legally valid, binding and
enforceable obligation of any Person party thereto or any Material Supply
Contract Counterparty party thereto shall, directly or indirectly, contest such
effectiveness, validity, binding nature or enforceability by the filing of a
claim, complaint or notice with an arbitrator or any court or other Governmental
Authority.
SECTION 8.1.13. Mine Plans; Proven and Probable Reserves. (a) The
operations of the Borrower and its Subsidiaries during or for any calendar year
shall suffer a material variation (as material variation is used in clause (j)
of Section 7.1.1) from the calendar year totals set forth in the Mine Plans for
the Xxx Mine and the East Boulder Mine in effect during such calendar year
without the prior written consent of the Administrative Agent, the Technical
Agent and the Required Lenders.
(b) The Borrower shall fail to own or control at any time (i)
12,500,000 tons of Proven Reserves and Probable Reserves at the Mines and (ii)
as compared to projected "Ore Tons" in the then current Mine Plans, (A) at any
time, 18 months of Proven Reserves (measured in tons) at the Xxx Mine, (B)
commencing December 31, 2002, 12 months of Proven Reserves (measured in tons) at
the East Boulder Mine, and (C), commencing December 31, 2003 18 months of Proven
Reserves (measured in tons) at the East Boulder Mine, in each case, as reported
in the Borrower's then most current filing with the SEC or, if more current, the
then most current update furnished pursuant to clause (k) of Section 7.1.1.
SECTION 8.1.14. Failure to Maintain Palladium and Platinum Production.
The Borrower shall fail to maintain combined Palladium Production and Platinum
Production, measured in returnable ounces, of (i) at least 392,000, 419,000,
453,000 and 485,000 ounces for each of the four-consecutive-Fiscal-Quarter
periods ending on the last day of the first, second, third and fourth Fiscal
Quarters of the 2001 Fiscal Year, respectively, (ii) at least 543,500, 610,500,
701,000 and 798,000 ounces for each of the four-consecutive-Fiscal-Quarter
periods ending on the last day of the first, second, third and fourth Fiscal
Quarters of the 2002 Fiscal Year, respectively, and (iii) at least 879,000
ounces in the 2003 Fiscal Year and in each Fiscal Year thereafter; provided that
the failure of the Borrower to maintain such level of production shall not
constitute an Event of Default hereunder if:
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(v) such failure results from the occurrence of a Force
Majeure Event of which the Borrower has notified the Technical Agent
and the Administrative Agent within 30 days of the commencement thereof
that it intends to utilize the benefit of this proviso with respect to
such Force Majeure Event,
(w) the period during which such Force Majeure Event is in
effect does not exceed 180 days,
(x) during such period the Borrower maintains a ratio of Debt
to EBITDA of less than 2.0:1.0 and a Debt Service Coverage Ratio of
greater than 3.0:1.0,
(y) (1) if the period during which such Force Majeure Event is
in effect terminates prior to December 31, 2002, the annualized
production for the four-consecutive-Fiscal-Quarter period ending on the
last day of the Fiscal Quarter during which such Force Majeure Event
terminates (based on taking actual production for the days in such
period during which such Force Majeure Event (or, if applicable, a
prior Force Majeure Event permitted to be used for the purposes of this
proviso) was not in effect and multiplying such production by a
fraction, the numerator of which would be 365 and the denominator of
which would be the number of such days in which such Force Majeure
Event (or, if applicable, a prior Force Majeure Event permitted to be
used for the purposes of this proviso) was not in effect) would equal
or exceed the applicable production level set forth above in this
Section 8.1.14 for the four-consecutive-Fiscal-Quarter period ending on
the last day of the Fiscal Quarter during which such Force Majeure
Event terminates, and
(2) if the period during which such Force Majeure Event is in
effect terminates after December 31, 2002, (A) such production for the
immediately succeeding 90 days (or, if the number of days until the end
of the Fiscal Year then in effect is less than 90 days, such lesser
number of days) would, on an Annualized Basis, equal or exceed the
production level of 879,000 ounces set forth above in this Section
8.1.14 and (B) in the event the 90-day period described in the
immediately preceding subclause (A) ends on a date prior to the last
day of a Fiscal Year, the annualized production for such Fiscal Year
(based on taking actual production for the days in such Fiscal Year
during which such Force Majeure Event (or, if applicable, a prior Force
Majeure Event permitted to be used for the purposes of this proviso)
was not in effect and multiplying such production by a fraction, the
numerator of which would be 365 and the denominator of which would be
the number of such days in which such Force Majeure Event (or, if
applicable, a prior Force Majeure Event permitted to be used for the
purposes of this proviso) was not in effect) would equal or exceed the
production level of 879,000 ounces, and
(z) the Borrower has not utilized the benefit of this proviso
more than twice.
SECTION 8.1.15. Regulatory Action; Expropriation. (a) Any Governmental
Authority shall take any action with respect to the Borrower, the Mines, the
operation thereof or the sale of the production therefrom (including any action
that would cause any license, permit, consent or other Mining Right to cease to
be in full force and effect or to be held to be illegal or invalid and including
any action (including the commencement of an action or proceeding) that results
or
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may result in the revocation, termination or substantial and adverse
modification of any such license, permit, consent or other Mining Right) which
would have a Material Adverse Effect, unless such action is set aside, dismissed
or withdrawn within 30 days of its institution or such action is being contested
in good faith and its effect is stayed during such contest.
(b) Any Governmental Authority or other Person purporting to be, or
acting as, any Governmental Authority condemns, nationalizes, seizes or
otherwise expropriates all or any substantial portion of the property or other
assets (including, unpatented mining and millsite claims) of the Borrower or of
its share capital or other ownership interests, or assumes custody or control of
such property or other assets or of the business or operations of the Borrower
to the extent such action (together with any prior or similar action) would
prevent the Borrower from carrying on its obligations under the Transaction
Documents, and such condemnation, nationalization, seizure, expropriation,
assumption or action is not withdrawn, rescinded, reversed, or in the case of
any such action with respect to property or assets, the same are not replaced
with equivalent property or assets within 30 days.
SECTION 8.1.16. Abandonment; Mining Rights. (a) The Borrower shall
abandon all or any significant portion of its interest in the Mines or
surrender, cancel or release, or suffer any termination or cancellation of any
of its rights or interests in the Mines, other than as specifically permitted by
the Loan Documents or other than as the Borrower and the Mining Consultant shall
have certified to the Administrative Agent, the Technical Agent and the Lenders
is not required in connection with the Project.
(b) Any Person other than the Borrower shall acquire or assert a claim
to Mining Rights in respect of all or any portion of properties owned or claimed
under unpatented mining and millsite claims by the Borrower in connection with
the Project, other than (i) Mining Rights affecting any portion of properties
that are not material to the development and completion of any Mine as
contemplated in the Mine Plans and (ii) such rights or claims as the Technical
Agent, the Administrative Agent (in consultation with the Lenders) and the
Mining Consultant determine could not reasonably be expected to have a Material
Adverse Effect.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations (including
Reimbursement Obligations) shall automatically be and become immediately due and
payable, without notice or demand to any Person and the Borrower and each other
Obligor shall automatically and immediately be obligated to deposit with the
Administrative Agent cash collateral in an amount equal to all Letter of Credit
Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable and/or the Commitments (if not
theretofore terminated) to be
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terminated, whereupon the full unpaid amount of such Loans and 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 and the Borrower shall automatically and
immediately be obligated to deposit with the Administrative Agent cash
collateral in an amount equal to all Letter of Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints TD as its
Administrative Agent and Rothschild as its Technical Agent under and for
purposes of this Agreement and each other Loan Document. Each Lender authorizes
the Administrative Agent and the Technical Agent to act on behalf of such Lender
under this Agreement, the Notes and each other Loan Document and, in the absence
of other written instructions from the Required Lenders received from time to
time by the Administrative Agent (with respect to which the Administrative Agent
agrees that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel in order to avoid contravention of applicable law),
to exercise such powers hereunder and thereunder as are specifically delegated
to or required of the Administrative Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto (including the
power to release any Lien granted to or held by the Administrative Agent for the
benefit of the Lenders with respect to any collateral constituting collateral
Disposed of in compliance with this Agreement and the other Loan Documents).
Each Lender hereby indemnifies (which indemnity shall survive any termination of
this Agreement) each Agent, pro rata according to such Lender's proportionate
Total Exposure Amount, from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature whatsoever
which may at any time be imposed on, incurred by, or asserted against, such
Agent in any way relating to or arising out of this Agreement and any other Loan
Document, including reasonable attorneys' fees, to the extent such Agent has not
been reimbursed by the Borrower; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from such Agent's gross
negligence or wilful misconduct. Neither the Administrative Agent nor the
Technical Agent shall 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 hereunder to its
satisfaction. If any indemnity in favor of either the Administrative Agent or
the Technical Agent shall be or become, in such Agent's determination,
inadequate, such Agent may call for additional indemnification from the Lenders
and cease to do the acts indemnified against hereunder until such additional
indemnity is given. Notwithstanding any provision to the contrary contained
elsewhere in any Loan Document, neither the Administrative Agent nor the
Technical Agent shall have any duties or responsibilities except those expressly
set forth herein, nor shall either such Agent have or deemed to have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into any Loan
Document or otherwise exist against either such Agent.
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SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
3:00 p.m., New York time, on the Business Day prior to a Borrowing that such
Lender will not make available the amount which would constitute its Percentage
of such Borrowing on the date specified therefor, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender and the Borrower
severally agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the Borrower to the date
such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing (in the case of the
Borrower) and (in the case of a Lender), at the Federal Funds Rate for the first
two Business Days after which such amount has not been repaid and, thereafter,
at the interest rate applicable to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative Agent, nor the
Technical Agent nor any of their successors or assigns, nor any of their
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by them under this Agreement or any other
Loan Document, or in connection herewith or therewith, except for their 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 for
the creation, perfection or priority of any Liens purported to be created by any
of the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by the Borrower or any other Obligor of its
obligations hereunder or under any other Loan Document. Any such inquiry which
may be made by either the Administrative Agent or the Technical Agent shall not
obligate it to make any further inquiry or to take any action. Each such Agent
shall be entitled to rely upon advice of counsel concerning legal matters and
upon any notice, consent, certificate, statement or writing which each such
Agent believes to be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Technical Agent may resign as such upon 15
Business Day's notice to the Borrower and the Administrative Agent, during which
time the Administrative Agent shall use its reasonable efforts to appoint a
Lender as a successor Technical Agent. If, after such 15 Business Days, the
Administrative Agent has been unable to select a Lender that is willing to
accept such appointment, the Administrative Agent shall become, without any
further action, the Technical Agent. The Administrative Agent may resign as such
at any time upon at least 30 days' prior notice to the Borrower and all Lenders.
If the Administrative Agent at any time shall resign, the Required Lenders may
appoint another Lender as a successor Administrative Agent which shall thereupon
become the Administrative Agent hereunder. If no successor Administrative Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be
one of the
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Lenders or a commercial banking institution organized under the laws of the U.S.
(or any State thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least $500,000,000;
provided, however, that if, such retiring Administrative Agent is unable to find
a commercial banking institution which is willing to accept such appointment and
which meets the qualifications set forth in above, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
as provided for above. Upon the acceptance of any appointment as an 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. After any retiring Agent's resignation
hereunder as an Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the such Agent
under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to
its benefit.
SECTION 9.5. Loans by the Agents. Each of TD and Rothschild shall have
the same rights and powers with respect to (x) the Credit Extensions made by it
or any of its Affiliates, and (y) the Notes held by it or any of its Affiliates
as any other Lender and may exercise the same as if it were not an Agent
hereunder. TD, Rothschild and their respective Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Borrower or any Subsidiary or Affiliate of the Borrower as if TD and Rothschild
were not Agents hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, 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. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
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Administrative Agent in accordance with the terms of this Agreement or any other
Loan Document.
SECTION 9.8. Reliance by Agents. Each of the Administrative Agent and
the Technical Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telecopy, telegram,
electronic mail or cable) believed by it to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by such Agent. As to any matters not expressly provided for by this Agreement or
any other Loan Document, each of the Administrative Agent and the Technical
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or thereunder in accordance with instructions given by the
Required Lenders or all of the Lenders as is required in such circumstance, and
such instructions of such Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. For purposes of
applying amounts in accordance with this Article, the Administrative Agent shall
be entitled to rely upon any Secured Party that has entered into a Lender
Hedging Agreement with any Obligor for a determination (which such Secured Party
agrees to provide or cause to be provided upon request of the Administrative
Agent) of the outstanding Secured Obligations owed to such Secured Party under
any Lender Hedging Agreement. Unless it has actual knowledge evidenced by way of
written notice from any such Secured Party and the Borrower to the contrary, the
Administrative Agent, in acting hereunder and each other Loan Document, shall be
entitled to assume that no Lender Hedging Agreements or Obligations in respect
thereof are in existence or outstanding between any Secured Party and any
Obligor.
SECTION 9.9. Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 10.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Required Lenders or all Lenders.
SECTION 9.10. Application of Proceeds. After payment of all amounts
then due and payable to the Administrative Agent pursuant to (i) Sections 10.3
and 10.4, (ii) Section 6.3 of the Borrower Security Agreement and the Subsidiary
Security Agreements, (iii) Sections 5.10 and 5.13 of each Mortgage and (iv) each
similar provision under any other Loan Document, all cash proceeds received by
the Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral, as defined in the Borrower
Security Agreement,
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or of the Encumbered Property, as defined in the Mortgage, shall be applied by
the Administrative Agent against, all or any part of the Obligations as follows:
(a) first, to the payment and satisfaction of all costs and
expenses incurred in connection with the collection of such proceeds;
(b) second, to the equal and ratable payment of Obligations,
in accordance with each Secured Party's Obligations owing to it under
or pursuant to the Credit Agreement or any other Loan Document
(including Obligations under or pursuant to any Lender Hedging
Agreements of which the Administrative Agent has actual knowledge
evidenced by written notice satisfactory to the Administrative Agent
from any such Secured Party or the Borrower), applied
(i) first to fees and expense reimbursements then due
to such Secured Party,
(ii) then to interest due to such Secured Party,
(iii) then to pay or prepay principal of the Loans
(and Reimbursement Obligations) owing to, or to reduce the
"credit exposure" of, such Secured Party under such Lender
Hedging Agreements, as the case may be, and
(iv) then to pay the remaining outstanding
Obligations and cash collateralize all Letter of Credit
Outstandings,
(c) third, without duplication of any amounts paid pursuant to
clause (b) above, to the Indemnified Parties to the extent of any
amounts owing pursuant to Section 10.4 of the Credit Agreement; and
(d) fourth, to be held as additional collateral security until
the payment in full in cash of all of the Obligations, the termination
or expiration of all Letters of Credit, the termination of all Lender
Hedging Agreements and the termination of all Commitments, after which
such remaining cash proceeds shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive such surplus.
For purposes of this Section, the "credit exposure" at any time of any
Secured Party with respect to a Lender Hedging Agreement to which such Secured
Party is a party shall be determined at such time in accordance with the
customary methods of calculating credit exposure under similar arrangements by
the counterparty to such arrangements, taking into account potential interest
rate movements and the respective termination provisions and notional principal
amount and term of such Lender Hedging Agreement.
SECTION 9.11. Sub-Agents. Without limiting any other rights that the
Administrative Agent may have, the Administrative Agent may appoint, upon notice
in writing to the Borrower, any Person to act as a sub-agent with such rights
(including the right to remuneration and indemnity), duties and obligations of
the Administrative Agent as may be conferred or imposed by the Administrative
Agent to or on such sub-agent in the applicable instrument of appointment;
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provided that in performing such duties or obligations such sub-agent shall not
be held to any lesser standard of care than that which the Administrative Agent
would have otherwise been held. The Administrative Agent shall not be
responsible for the acts or omissions of any such sub-agent that it selects with
reasonable care. The possession of any collateral by any such sub-agent shall be
deemed to be possession by the Administrative Agent. The Administrative Agent
may agree to pay such sub-agents reasonable fees, together with any reasonable
costs, charges, liabilities and expenses incurred by such sub-agents in
performing their functions as such sub-agents, and such fees, costs, charges,
liabilities and expenses shall for purposes of this Agreement and the other Loan
Documents be treated as costs, charges, liabilities and expenses incurred by the
Administrative Agent. The Borrower hereby agrees to promptly execute and deliver
all documents related to the appointment of a sub-agent that may be necessary,
or that the Administrative Agent may reasonably request, in order to effectuate
such appointment and allow any such sub-agent to perform its functions as a
sub-agent.
SECTION 9.12. Release of Collateral. Each Secured Party irrevocably
authorizes the Administrative Agent at its option and in its discretion, to
release any Guarantor from its obligations under the Subsidiary Guaranty and any
Lien granted to or held by or in favor of the Administrative Agent for the
benefit of the Secured Parties upon the occurrence of the Termination Date or in
connection with (i) collateral under the Loan Documents being Disposed of or
(ii) the release of any Guarantor so long as, in either the case of clause (i)
or (ii), such Disposition or release is otherwise permitted under the terms of a
Loan Document; provided, however, that the Administrative Agent may, prior to
any such release, request that the Borrower certify in a written notice
delivered to the Administrative Agent (with such detail as the Administrative
Agent may reasonably request) that the Disposition or release is made in
compliance with the terms of the Loan Documents. In addition, each Secured Party
irrevocably authorizes the Administrative Agent to subordinate any Lien granted
to or held by or in favor of the Administrative Agent for the benefit of the
Secured Parties to conservation easements granted by the Borrower and its
Subsidiaries pursuant to the requirements of the Good Neighbor Agreement, and to
execute and deliver all instruments and documents necessary to effect the same,
so long as (x) the Borrower has furnished to the Administrative Agent an
officer's certificate certifying (with such supporting documentation as the
Administrative Agent may reasonably require) that the granting of each such
conservation easement will not (1) adversely affect in any material respect the
Borrower's ability to meet any aspect of the Mine Plans then in effect or the
Borrower's present or future operations, (2) adversely affect in any material
respect the rights and remedies for any Secured Party under any Loan Document
and (3) adversely affect in any material respect the market value of the real
property interests that would be burdened by such easement and (y) the
Administrative Agent is reasonably satisfied that the contents of such officer's
certificate are true and correct. Upon request by the Administrative Agent at
any time, each Secured Party will confirm in writing the Administrative Agent's
authority to release any Guarantor or release or subordinate particular types or
items of collateral under the Loan Documents pursuant to this Section 9.12.
SECTION 9.13. Documentation Agent. The Lender identified in this
Agreement as the "Documentation Agent" shall not have any right, power,
obligation, liability, responsibility or duty under this Agreement (or any other
Loan Document) other than those applicable to all
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Lenders as Lenders. Without limiting the effect of any provision set forth in
this Article IX, the Lender so identified as the "Documentation Agent" shall not
have or be deemed to have any fiduciary relationship with any other Lender. Each
Lender acknowledges that it has not relied, and will not rely, on the Lender so
identified as the "Documentation Agent" in deciding to enter into this Agreement
and or any Loan Document to which it is a party or in taking or not taking
action hereunder or thereunder.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement (including the Schedules hereto (other than Schedule II hereto, which
may be modified in accordance with Section 10.2 or Section 10.11.1)) and of each
other Loan Document (other than Lender Hedging Agreements, Letters of Credit,
the Commitment Letter and the Fee Letter (which documents may be amended or
otherwise modified in accordance with the terms thereof)) may from time to time
be amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to in writing by the Borrower and the Required Lenders;
provided, however, that no such amendment, modification or waiver shall:
(a) modify this Section 10.1 without the consent of all
Lenders;
(b) increase the aggregate amount of any Lender's Percentage
of any Commitment Amount, increase the aggregate amount of any Loans
required to be made by a Lender pursuant to its Commitments, extend the
final Commitment Termination Date of Credit Extensions made (or
participated in) by a Lender or reduce any fees described in Article
III payable to any Lender without the consent of such Lender;
(c) extend the due date for any scheduled repayment of
principal of any Lender's Loan, or reduce the principal amount of,
prepayment premium with respect to or rate of interest on any Lender's
Loan or extend the date on which interest, premium or fees are payable
in respect of such Lender's Loans, in each case, without the consent of
such Lender (it being understood and agreed, however, that any vote to
rescind any acceleration made pursuant to Section 8.2 and Section 8.3
of amounts owing with respect to the Loans and other Obligations shall
only require the vote of the Required Lenders (as defined in clause (b)
of the definition thereof));
(d) amend, modify or waive provisions of clause (a)(i), (c),
(d), (e), (f), (g) or (h) of Section 3.1.1 or clause (b) of Section
3.1.2, in any case in such a manner as to adversely affect the rights
of the Lenders participating in any particular Tranche differently from
the rights of Lenders participating in any other Tranche without the
consent of the Lenders holding more than 50% of the aggregate amount of
Loans (or, in the case no Loans are then outstanding with respect to a
Tranche, the Commitments) outstanding under the Tranche or Tranches
adversely affected by such amendment, modification or waiver (provided
that, in addition to (an not in limitation of) the requirements of this
clause (d), any amendment, modification or waiver of the provisions
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of clause (c), (d), (e) or (f) of Section 3.1.1 or clause (b) of
Section 3.1.2 that would adversely affect the rights of Lenders holding
Term A Loans or Revolving Loan Commitments from receiving a mandatory
prepayment of Term A Loans or a permanent reduction of the Revolving
Loan Commitment Amount pursuant to such provisions shall require the
consent of Lenders holding more than 50% of the sum of the Revolving
Loan Commitment Amount and the aggregate principal amount of Term A
Loans then outstanding);
(e) reduce the percentage set forth in the definition of
"Required Lenders" or any requirement hereunder that any particular
action be taken by all Lenders without the consent of all Lenders;
(f) increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit;
(g) except as otherwise expressly provided in this Agreement
or another Loan Document, release (i) any Guarantor from its
obligations under a Guaranty (it being understood that the
Administrative Agent may release the Guaranty of a Subsidiary Guarantor
in connection with a Disposition of all, or substantially all, of the
Capital Stock of such Subsidiary Guarantor in a transaction permitted
by Section 7.2.11) or (ii) all or any substantial part of the
collateral under the Loan Documents, in either case without the consent
of all Lenders; or
(h) affect adversely the interests, rights or obligations of
the Administrative Agent (in its capacity as the Administrative Agent),
the Technical Agent (in its capacity as the Technical Agent) or any
Issuer (in its capacity as Issuer), unless consented to by the
Administrative Agent, Technical Agent or such Issuer, as the case may
be.
No failure or delay on the part of the Administrative Agent, the Technical
Agent, any Issuer or any Lender 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 or any other Obligor in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver
or approval by the Administrative Agent, the Technical Agent, any Issuer or any
Lender 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 facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto or on
Schedule II hereto or, in the case of a Lender that becomes a party hereto after
the date hereof, as set forth in the Lender Assignment Agreement pursuant to
which such Lender becomes a Lender hereunder or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and
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properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when the confirmation of
transmission thereof is received by the transmitter.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
on demand all reasonable expenses of each Agent (including the fees and
out-of-pocket expenses of counsel to the Administrative Agent and of local
counsel, if any, who may be retained by counsel to the Administrative Agent) in
connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of 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, whether or not the transactions
contemplated hereby are consummated; and
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements, amendments and
restatements and other modifications to any thereof and any and all
other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or the
terms of any Loan Document;
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document;
(d) any inspection, visit, review, examination, testing or
evaluation performed by the Mining Consultant for purposes of preparing
any reports, certificates or other information with respect to the
Project; and
(e) the syndication of the Commitments and Loans.
The Borrower further agrees to pay, and to save each Secured Party harmless from
all liability for, any stamp or other taxes which may be payable in connection
with the execution or delivery of this Agreement, the Credit Extensions
hereunder, or the issuance of the Notes, Letters of Credit or any other Loan
Documents. The Borrower also agrees to reimburse each Secured Party upon demand
for all reasonable out-of-pocket expenses (including reasonable attorneys' fees
and legal expenses of counsel to each Secured Party) incurred by such Secured
Party in connection with (x) the negotiation of any restructuring or "work-out"
with the Borrower, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, the Borrower hereby
indemnifies, exonerates and holds each Agent, TDSI, each Secured Party, and each
of their respective successors and assigns, and each of their respective
officers, directors, employees and agents, and each other Person controlling any
of the foregoing within the meaning of either Section 15 of the Securities Act
of 1933, as amended, or Section 20 of the Exchange Act (collectively, the
"Indemnified Parties") free and
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harmless from and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements and agrees to pay all such costs, whether incurred in
connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the "Indemnified Liabilities"), incurred
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 Credit
Extension, including all Indemnified Liabilities arising in connection
with the Transaction;
(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 Lenders pursuant to Article V not to fund
any Credit Extension, provided that any such action is resolved in
favor of such Indemnified Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not an Indemnified Party is party thereto;
(d) 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
of its Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof 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; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Notes and any transfer of the
property of the Borrower or any of its Subsidiaries by foreclosure or
by a deed in lieu of foreclosure for any Lender's Environmental
Liability, 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 gross
negligence or wilful misconduct (as determined by a court of competent
jurisdiction in a final proceeding). In furtherance of (and not in limitation
of) the foregoing, the Borrower agrees to reimburse each Indemnified Party for
all legal or other expenses incurred in connection with investigating,
defending, or participating in an action or other proceeding relating to an
Indemnified Liability (whether or not such Indemnified Party is a party to such
action or proceeding), other than expenses incurred in connection with an
Indemnified Liability arising from such Indemnified Party's gross negligence
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or willful misconduct (as determined by a court of competent jurisdiction). The
Borrower and its successors and assigns hereby waive, release and agree not to
make any claim or bring any cost recovery action against, any Secured Party
under CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted. It is expressly understood and agreed that to the extent that
any of such Persons is strictly liable under any Environmental Laws, the
Borrower's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of the Borrower with respect to the
violation or condition which results in liability of such Person. 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
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any assignment from one Lender to
another (in the case of Sections 10.3 and 10.4) and any termination of this
Agreement, the payment in full of all the Obligations and the termination of all
the Commitments. The representations and warranties made by the Borrower and
each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other 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 provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such 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. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower, the Administrative Agent and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall have
been received by the Administrative Agent.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT (INCLUDING PROVISIONS WITH RESPECT TO
INTEREST, LOAN CHARGES AND COMMITMENT FEES), OTHER THAN THE LETTERS OF CREDIT,
TO THE EXTENT SPECIFIED BELOW AND SUCH OTHER LOAN DOCUMENTS, TO THE EXTENT
OTHERWISE EXPRESSLY SET FORTH THEREIN, SHALL EACH BE DEEMED TO BE A CONTRACT
MADE
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UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK; PROVIDED, HOWEVER, THAT EACH LETTER OF CREDIT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO LAWS OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY
PRACTICES (ISP98 -- INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NUMBER 590
(THE "ISP RULES") AND, AS TO MATTER NOT GOVERNED BY THE ISP RULES, THE LAWS OF
THE STATE OF NEW YORK), EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
A SECURITY INTEREST OR MORTGAGE UNDER A LOAN DOCUMENT, OR REMEDIES UNDER A LOAN
DOCUMENT IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK. 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.
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
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit and Commitments to one or more other Persons in accordance
with this the terms set forth below.
SECTION 10.11.1. Assignments. Any Lender, pursuant to a Lender
Assignment Agreement,
(a) with the consent of the Borrower, the Administrative Agent
and (in the case of any assignment of Revolving Loan Commitments and
related participations in Letters of Credit and Letter of Credit
Outstandings) the Issuer (which consents shall not be unreasonably
delayed or withheld and, which consent, in the case of the Borrower,
shall not be required during the continuation of an Event of Default;
provided, however, that, in the case of any assignment of Revolving
Loan Commitments and related participations in Letters of Credit and
Letter of Credit Outstandings, the Administrative Agent, the Issuer and
the Borrower may withhold such consent in their sole discretion to an
assignment to a Person not satisfying the credit ratings set forth in
the last paragraph of this Section 10.11.1) may at any time assign and
delegate to one or more Eligible Assignees; and
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(b) upon notice to the Borrower, the Administrative Agent and
the Issuer, upon the Administrative Agent's acknowledgment of a Lender
Assignment Agreement, may assign and delegate to any of its Affiliates
or Related Funds or to any other Lender or any of their Affiliates or
Related Funds (provided that, in the case of any assignment of
Revolving Loan Commitments and related participations in Letters of
Credit and Letter of Credit Outstandings under this clause (b), (x) the
consent of the Issuer shall be required in the event such assignment is
to a Related Fund or a Person not satisfying the credit ratings set
forth in the last paragraph of this Section 10.11.1 and (y) the consent
of the Borrower shall be required (except during the continuance of an
Event of Default) in the event such assignment is to a Related Fund)
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's Loans,
Commitments and participations in Letters of Credit and Letter of Credit
Outstandings (which assignment and delegation shall be, as among Revolving Loan
Commitments and related participations in Letters of Credit and Letter of Credit
Outstandings, of a constant, and not a varying, percentage) in a minimum
aggregate amount equal to (i) the relevant Assignment Threshold or (ii) the then
remaining amount of such Lender's Loans and Commitments (provided that no
minimum amount shall be required in the case of any assignment between two
Lenders). Each Obligor and the Administrative Agent shall be entitled to
continue to deal solely and directly with a Lender in connection with the
interests so assigned and delegated to an Assignee Lender until
(i) notice of such assignment and delegation,
together with (A) payment instructions, (B) the Internal
Revenue Service forms or other statements contemplated or
required to be delivered pursuant to Section 4.6, if
applicable, and (C) addresses and related information with
respect to such Assignee Lender, shall have been delivered to
the Borrower and the Administrative Agent by such assignor
Lender and such Assignee Lender;
(ii) such Assignee Lender shall have executed and
delivered to the Borrower and the Administrative Agent a
Lender Assignment Agreement, accepted by the Administrative
Agent; and
(iii) the processing fees described below shall have
been paid.
From and after the date that the Administrative Agent accepts such
Lender Assignment Agreement, (x) the Assignee Lender 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 Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of notice that the
Administrative Agent has received and accepted an executed Lender Assignment
Agreement (and if requested by the Assignee Lender), but subject to clause (i)
above, the Borrower shall execute and deliver to the Administrative Agent (for
delivery to the
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relevant Assignee Lender) a new Note evidencing such Assignee Lender's assigned
Loans and Commitments and, if the assignor Lender has retained Loans and
Commitments hereunder (and if requested by such Lender), a replacement Note in
the principal amount of the Loans and Commitments retained by the assignor
Lender hereunder (such Note to be in exchange for, but not in payment of, the
Note then held by such assignor Lender). Each such Note shall be dated the date
of the predecessor Note. The assignor Lender shall xxxx each predecessor Note
"exchanged" and deliver each of them to the Borrower. Accrued interest on that
part of each predecessor Note evidenced by a new Note, and accrued fees, shall
be paid as provided in the applicable Lender Assignment Agreement. Accrued
interest on that part of each predecessor Note evidenced by a replacement Note
shall be paid to the assignor Lender. Accrued interest and accrued fees shall be
paid at the same time or times provided in the predecessor Note and in this
Agreement. Such assignor Lender or such Assignee Lender must also pay a
processing fee in the amount of $3,500 to the Administrative Agent upon delivery
of any Lender Assignment Agreement (provided that (i) such processing fee shall
not be required in the case such Assignee Lender is an Affiliate of such
assignor Lender or a Related Fund of such assignor Lender and (ii) in the case
of assignments on the same day by such assignor Lender to more than one Related
Fund of such assignor Lender, only a single $3,500 processing fee shall be
required for all such assignments by such assignor Lender to such Related Funds
for such day). Any attempted assignment and delegation not made in accordance
with this Section shall be null and void. Notwithstanding anything to the
contrary set forth above, any Lender may (without requesting the consent of the
Borrower or the Administrative Agent) pledge its Loans to a Federal Reserve Bank
in support of borrowings made by such Lender from such Federal Reserve Bank. In
the case of any Lender that is a fund that is regularly engaged in making,
purchasing or investing in loans, such Lender may, without the consent of the
Borrower or the Administrative Agent, pledge all or any portion of its interests
in the Term Loans (including any Notes or any other instrument evidencing such
Term Loans and its rights as a Lender under this Agreement in respect thereof)
to any trustee for, or any other representative of, holders of obligations owed
or securities issued by such fund, as security for such obligations or
securities; provided that any foreclosure or similar action by such trustee or
representative shall be subject to the provisions of this Section 10.11.1
concerning assignments.
In the event that S&P or Xxxxx'x shall, after the date that any Person
becomes a Lender holding a Revolving Loan Commitment, downgrade the long-term
certificate of deposit ratings of such Lender such that the resulting ratings
shall be below BBB- or Baa3, respectively, or the equivalent, or in the event a
Lender is then subject to a Lender Default, then the Borrower and each Issuer
shall each have the right, but not the obligation, upon notice to such Lender
and the Administrative Agent, to replace such Lender with an Eligible Assignee
(a "Replacement Lender") acceptable to the Borrower and the Administrative Agent
(such consents not to be unreasonably withheld or delayed; provided that no such
consent shall be required if the Replacement Lender is an existing Lender), and
upon any such downgrading of any Lender's long-term certificate of deposit
rating or occurrence and continuance of a Lender Default, each such Lender
hereby agrees to transfer and assign (in accordance with Section 10.11.1) all of
its Commitments, Loans, Notes and other rights and obligations under this
Agreement and all other Loan Documents (including Reimbursement Obligations) to
such Replacement Lender; provided, however, that (i) no such assignment shall be
required if such assignment would conflict with any applicable law or
regulation, (ii) such assignment shall be without recourse, representation or
warranty (other than that such Lender owns the Commitments, Loans and
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Notes being assigned, free and clear of any Liens) and (iii) the purchase price
paid by the Replacement Lender shall be in the amount of such Lender's Loans and
its Percentage of outstanding Reimbursement Obligations, together with all
accrued and unpaid interest and fees in respect thereof, plus all other amounts
(other than the amounts (if any) demanded and unreimbursed under Sections 4.3,
4.5 and 4.6, which shall be paid by the Borrower), owing to such Lender
hereunder. Upon any such termination or assignment, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of any
provisions of this Agreement which by their terms survive the termination of
this Agreement.
SECTION 10.11.2. Participations. Any Lender may sell, without the
consent of the Borrower or the Administrative Agent, 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,
Commitments, or other interests of such Lender hereunder; provided, however,
that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender'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 Lender or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (a), (b), (f)
or, to the extent requiring the consent of each Lender, clause (c) of
Section 10.1; and
(e) the Borrower shall not be required to pay any amount under
this Agreement 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 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 7.1.1, 10.3 and 10.4, shall
be considered a Lender. Each Participant shall only be indemnified for increased
costs pursuant to Section 4.3, 4.5 or 4.6 if and to the extent that the Lender
which sold such participating interest to such Participant concurrently is
entitled to make, and does make, a claim on the Borrower for such increased
costs. Any Lender that sells a participating interest in any Loan, Commitment or
other interest to a Participant under this Section shall indemnify and hold
harmless the Borrower and the Administrative Agent from and against any taxes,
penalties, interest or other costs or losses (including reasonable attorneys'
fees and expenses) incurred or payable by the Borrower or the Administrative
Agent as a result of the failure of the Borrower or the Administrative Agent to
comply with its obligations to deduct or withhold any Taxes from any payments
made pursuant to this Agreement to such
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Lender or the Administrative Agent, as the case may be, which Taxes would not
have been incurred or payable if such Participant had been a Non-U.S. Lender
that was entitled to deliver to the Borrower, the Administrative Agent or such
Lender, and did in fact so deliver, a duly completed and valid Form 1001 or 4224
(or applicable successor form) entitling such Participant to receive payments
under this Agreement without deduction or withholding of any United States
federal taxes.
SECTION 10.11.3. Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for the purpose of
this Section, to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitment, the Loans made by
each Lender and the Notes evidencing such Loans, and each repayment in respect
of the principal amount of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment Agreement
delivered to the Administrative Agent pursuant to this Section. Failure to make
any recordation, or any error in such recordation, shall not affect the
Borrower's or any other Obligor's Obligations in respect of such Loans or Notes.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall treat
each Person in whose name a Loan and related Note is registered as the owner
thereof for all purposes of this Agreement, notwithstanding notice or any
provision herein to the contrary. A Lender's Commitment and the Loans made
pursuant thereto and the Notes evidencing such Loans may be assigned or
otherwise transferred in whole or in part only by registration of such
assignment or transfer in the Register. Any assignment or transfer of a Lender's
Commitment or the Loans or the Notes evidencing such Loans made pursuant thereto
shall be registered in the Register only upon delivery to the Administrative
Agent of a Lender Assignment Agreement duly executed by the assignor thereof. No
assignment or transfer of a Lender's Commitment or the Loans made pursuant
thereto or the Notes evidencing such Loans shall be effective unless such
assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude the Administrative Agent, any Issuer or any other Lender 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. Independence of Covenants. All covenants contained in
this Agreement or any other Loan Document shall be given independent effect such
that, in the event a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or such
condition exists.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
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THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS, ANY ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR
THEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF NEW YORK, SITTING IN THE COUNTY OF NEW YORK, OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY IRREVOCABLY
APPOINTS CT CORPORATION SYSTEM (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE
HEREOF AT 000 XXXXXX XXXXXX, 00XX XXXXX, XXX XXXX, XXX XXXX 00000, AS ITS AGENT
TO RECEIVE, ON THE BORROWER'S BEHALF AND ON BEHALF OF ITS PROPERTY, SERVICE OF
COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN
ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING
A COPY OF SUCH PROCESS TO THE BORROWER IN CARE OF THE PROCESS AGENT AT THE
PROCESS AGENT'S ABOVE ADDRESS, AND THE BORROWER HEREBY IRREVOCABLY AUTHORIZES
AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN
ALTERNATIVE METHOD OF SERVICE, THE BORROWER ALSO IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY AGREES THAT IN THE
EVENT THE PROCESS AGENT IS NO LONGER RESIDENT IN NEW YORK, NEW YORK, IT SHALL
APPOINT A SUCCESSOR PROCESS AGENT RESIDENT IN NEW YORK, NEW YORK, REASONABLY
ACCEPTABLE TO THE AGENTS, WHICH SUCCESSOR PROCESS AGENT SHALL THEREAFTER BE THE
PROCESS AGENT HEREUNDER. 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 OR 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 TO THE FULLEST EXTENT PERMITTED
BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, EACH
LENDER, EACH ISSUER AND THE BORROWER HEREBY KNOWINGLY,
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VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF 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 ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, SUCH LENDER,
SUCH ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH. THE BORROWER
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
ADMINISTRATIVE AGENT, EACH LENDER AND EACH ISSUER ENTERING INTO THIS AGREEMENT
AND EACH SUCH OTHER LOAN DOCUMENT.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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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.
STILLWATER MINING COMPANY,
as the Borrower
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Chief Financial
Officer
Address: 0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TORONTO DOMINION (TEXAS), INC., as the
Administrative Agent
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address: Toronto Dominion (Texas), Inc.
c/o TD Securities (USA) Inc.
000 Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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128
with a copy to:
TD Securities (USA) Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
N M ROTHSCHILD & SONS LIMITED,
as the Technical Agent
By: /s/ X. Xxxxxxx
---------------------------------------
Name: X. Xxxxxxx
Title: Director
By: /s/ D. W. Street
---------------------------------------
Name: D. W. Street
Title: Assistant Director
Address: N M Rothschild & Sons Limited
Xxx Xxxxx, Xx. Xxxxxxx'x Xxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Telephone: 00-00-0000-0000
Facsimile: 00-00-0000-0000
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129
LENDERS:
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
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130
N M ROTHSCHILD & SONS LIMITED
By: /s/ X. Xxxxxxx
-------------------------------------
Name: X. Xxxxxxx
Title: Director
By: /s/ D. W. Street
-------------------------------------
Name: D. W. Street
Title: Assistant Director
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131
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate Director
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Associate Director
S-5
000
XXX XXXXX XXXXXXXXX BANK
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
X-0
000
XXXXXXXX XXXX XXXXXX LIMITED
By: /s/ X. X. Xxxxxxx
-------------------------------------
Name: X. X. Xxxxxxx
Title: Head of Mining Finance
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant General Manager
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134
PRINCIPAL LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: Counsel
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Counsel
X-0
000
Xxxxx Xxx Xxxxxxx Incorporated, as agent for
KEYPORT LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Good
-------------------------------------
Name: Xxxxx X. Good
Title: Senior Vice President and
Portfolio Manager
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136
XXXXX XXX XXXXXXX CLO I LTD,
by Xxxxx Xxx Xxxxxxx Incorporated,
as Portfolio Manager
By:
-------------------------------------
Name:
Title:
X-00
000
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ Xxxxx X. Good
-------------------------------------
Name: Xxxxx X. Good
Title: Senior Vice President and
Portfolio Manager
S-11
000
XXXXXXX-XXXXX XXX FLOATING RATE
ADVANTAGE FUND, By Xxxxx Xxx &
Farnham Incorporated, as Advisor
By: /s/ Xxxxx X. Good
-------------------------------------
Name: Xxxxx X. Good
Title: Senior Vice President and
Portfolio Manager
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139
SRF 2000 LLC
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
S-13
140
SRF TRADING, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
S-14
141
MUIRFIELD TRADING LLC
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
S-15
142
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
S-16
143
SEQUILS-CUMBERLAND I, LTD.
By: Deerfield Capital Management, L.L.C. as its
Collateral Manager
By: /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
X-00
000
XXX ING-1 LLC
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
S-18
145
KZH ING-2 LLC
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
S-19
