AMENDMENT TO CREDIT AND GUARANTEE AGREEMENT
This Amending Agreement made as of May 2, 2003.
BETWEEN:
XXXXXXX GOLD CORPORATION, as Borrower
(the "Borrower")
- and -
XXXXXXX GOLD CORPORATION, as Guarantor
(the "Guarantor")
- and -
ROYAL BANK OF CANADA
(the "Administrative Agent")
- and -
CITIBANK CANADA
(the "Syndication Agent")
- and -
THE LENDERS PARTY HERETO
(the "Lenders")
WHEREAS the parties hereto entered into a credit and guarantee agreement
dated as of April 29, 2002 (the "Credit and Guarantee Agreement");
AND WHEREAS the parties hereto wish to amend the Credit and Guarantee
Agreement in the manner set forth below;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT for good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereby agree as follows:
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ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS
Capitalized terms used but not otherwise defined herein shall have the
respective meanings given to them in the Credit and Guarantee Agreement. When
used herein, the following capitalized terms shall have the following meanings:
"AMENDMENT" means this amendment to the Credit and Guarantee Agreement.
ARTICLE 2
AMENDMENTS TO CREDIT AND GUARANTEE AGREEMENT
2.1 AMENDMENTS TO ARTICLE 3, ARTICLE 5 AND ARTICLE 13
(a) Section 3.2 of the Credit and Guarantee Agreement is hereby deleted
and replaced with the following:
"Each Canadian Borrower may borrow C$ Prime Rate Loans during the
Commitment Period on any Business Day, provided that such Canadian
Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 12:00
Noon, Local Time, two Business Days prior to the requested Borrowing
Date), specifying (a) the amount to be borrowed and (b) the requested
Borrowing Date, provided, that C$ Prime Rate Loans may also be
borrowed on a one Business Day notice basis so long as (x) any notice
of such a borrowing shall be received by the Administrative Agent
prior to 11:00 A.M., Local Time, on the Business Day immediately
preceding the requested Borrowing Date and (y) the aggregate
outstanding principal amount of C$ Prime Rate Loans borrowed pursuant
to this proviso shall not exceed C$300,000,000 at any one time). Each
borrowing of C$ Prime Rate Loans shall be in an amount equal to at
least C$10,000,000 or a whole multiple of C$5,000,000 in excess
thereof. Upon receipt of any such notice from a Canadian Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Each
Lender will make the amount of its pro rata share of each such
borrowing, by reference to its respective Commitment Percentage,
available to the Administrative Agent for the account of the relevant
Canadian Borrower at the Toronto Administrative Office prior to 11:00
A.M., Local Time, on the Borrowing Date requested by such Canadian
Borrower in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the relevant Canadian
Borrower by the Administrative Agent crediting the account of such
Canadian Borrower on the books of such Administrative Office with the
aggregate of the amounts made available to the Administrative Agent by
the
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Lenders and in like funds as received by the Administrative Agent."
(b) Subsection 5.3(c)(y) is hereby deleted in its entirety and replaced
with the following:
"(y) on or prior to the date which is 90 days after the relevant
Extension Request Deadline, cause one or more banks or other financial
institutions to purchase at par, pursuant to Section 13.6(d), all or
part of such Non-Extending Lender's Commitment and outstanding Loans
on the basis as if such Non-Extending Lender had extended the
Termination Date in accordance with subsection 5.3(b)(i), together
with accrued but unpaid interest, Commitment Fees and all other
amounts then due and payable to such Non-Extending Lender, including,
without limitation, amounts payable pursuant to Section 5.12, in which
case such Non-Extending Lender shall, promptly upon request by
Barrick, agree to transfer its Commitment and Loans upon the terms and
subject to the conditions of Section 13.6(d) to such banks or other
financial institutions."
(c) Section 5.11(a) of the Credit and Guarantee Agreement is hereby
amended by adding this sentence immediately prior to the third to last
sentence of such Section:
"Whenever any Non-Excluded Taxes must be withheld and remitted by any
Loan Party in respect of any payment under this Agreement the Loan
Party shall notify the Administrative Agent in writing with respect
thereto (including with respect to the rate of Non-Excluded Taxes to
be withheld and remitted by the Loan Party and whether any increased
amount is payable by a Loan Party pursuant to this section 5.11(a) or
otherwise) prior to any such payment being made to the Administrative
Agent or any Lender or Designated Auction Loan Provider."
(d) Section 13.6(c) of the Credit and Guarantee Agreement is hereby
amended by deleting the fifth and sixth sentences of such Section and
replacing them with the following:
"No Canadian Lender or Tax-Exempt Foreign Lender may sell a
participating interest to a Participant pursuant to this Section
13.6(c) without the consent of Barrick unless such Participant is a
Canadian Lender or a Tax-Exempt Foreign Lender. No US Lender or
Tax-Exempt Foreign Lender may sell a participating interest to a
Participant pursuant to this Section 13.6(c) without the consent of
Barrick unless such Participant is a US Lender or a Tax-Exempt Foreign
Lender."
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(e) Section 13.6(d) of the Credit and Guarantee Agreement is hereby
amended by deleting the second and third sentences of such Section and
replacing them with the following:
"No Canadian Lender or Tax-Exempt Foreign Lender may make an
assignment to an Assignee pursuant to this Section 13.6(d) without the
consent of Barrick unless such Assignee is a Canadian Lender or a
Tax-Exempt Foreign Lender. No US Lender or Tax-Exempt Foreign Lender
may make an assignment to an Assignee pursuant to this Section 13.6(d)
without the consent of Barrick unless such Assignee is a US Lender or
a Tax-Exempt Foreign Lender."
(f) Section 3.16 of the Credit and Guarantee Agreement is hereby amended
by adding the following after the end of the first sentence thereof:
"Notwithstanding anything herein to the contrary, "Confidential
Information" shall not include, and each Lender may disclose without
limitation of any kind, any information with respect to the U.S.
federal income tax treatment and U.S. federal income tax structure of
the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to such
Lender relating to such tax treatment and tax structure; provided that
with respect to any document or similar item that in either case
contains information concerning the U.S. federal income tax treatment
or U.S. federal income tax structure of the transaction as well as
other information, this sentence shall only apply to such portions of
the document or similar item that relate to the U.S. federal income
tax treatment or U.S. federal income tax structure of the transactions
contemplated hereby."
ARTICLE 3
GUARANTOR'S CONSENT
3.1 GUARANTOR'S CONSENT
The Guarantor in its capacity as Guarantor under the Credit and Guarantee
Agreement hereby acknowledges and consents to this Amendment and confirms that
its guarantee as provided in the Credit and Guarantee Agreement and all other
documents to which it is a party shall continue in full force and effect
notwithstanding the terms of this Amendment.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES
Each Loan Party that is a party hereto has the corporate power and authority,
and the legal right, to make, deliver and perform this Amendment and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Amendment on the terms and conditions of this Amendment. No
consent or authorization of any Governmental Authority or any other Person is
required in connection with the execution, delivery, performance, validity or
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enforceability of this Amendment. This Amendment has been duly executed and
delivered on behalf of each Loan Party hereto. This Amendment constitutes a
legal, valid and binding obligation of each Loan Party enforceable against each
Loan Party in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
ARTICLE 5
DELIVERIES
5.1 DELIVERIES
Concurrent with the execution of this Amendment the Borrower shall provide the
Administrative Agent with the US$3,500 fee payable to the Administrative Agent
as set forth in Section 13.6(f) of the Credit and Guarantee Agreement.
ARTICLE 6
OTHER AMENDMENTS
6.1 OTHER AMENDMENTS
Except as expressly amended, modified and supplemented hereby, the provisions of
the Credit and Guarantee Agreement are and shall remain in full force and
effect.
ARTICLE 7
GOVERNING LAW
7.1 GOVERNING LAW
This Amendment shall be governed and construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 MISCELLANEOUS
(a) In this Amendment, unless there is something in the subject matter or
context inconsistent therewith, "this agreement", "hereto", "hereof",
"herein", "hereby", "hereunder" and similar expressions refer to this
Amendment and not to any particular section or other portion hereof.
(b) This Amendment is an amendment to the Credit and Guarantee Agreement
within the meaning of such agreement.
(c) This Amendment may be executed in counterparts, each of which shall
constitute an original and all of which when taken together shall
constitute one and the same instrument.
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(d) Each party shall do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged and delivered, such further acts, deeds,
mortgages, transfers and assurances as are reasonably required for the
purpose of accomplishing and effecting the intention of this
Amendment.
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IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly
executed and delivered by the proper duly authorized officers as of the date and
year first above written.
XXXXXXX GOLD CORPORATION, as a
Borrower
By: /s/ XXXXXXX GOLD CORPORATION
-----------------------------------
Name:
Title:
XXXXXXX GOLD CORPORATION, as a
Guarantor
By: /s/ XXXXXXX GOLD CORPORATION
-----------------------------------
Name:
Title:
ROYAL BANK OF CANADA, as Administrative
Agent
By: /s/ ROYAL BANK OF CANADA
-----------------------------------
Name:
Title:
By: /s/ ROYAL BANK OF CANADA
-----------------------------------
Name:
Title:
CITIBANK CANADA, as Syndication Agent
By: /s/ CITIBANK CANADA
-----------------------------------
Name:
Title:
By: /s/ CITIBANK CANADA
-----------------------------------
Name:
Title:
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THE LENDERS:
ROYAL BANK OF CANADA
By: /s/ ROYAL BANK OF CANADA
-----------------------------------
Name:
Title:
By: /s/ ROYAL BANK OF CANADA
-----------------------------------
Name:
Title:
CITIBANK, N.A. Canadian branch
By: /s/ CITIBANK, N.A.
-----------------------------------
Name:
Title:
By: /s/ CITIBANK, N.A.
-----------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/ CITIBANK, N.A.
-----------------------------------
Name:
Title:
By: /s/ CITIBANK, N.A.
-----------------------------------
Name:
Title:
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DEUTSCHE BANK AG, CANADA BRANCH
By: /s/ DEUTSCHE BANK AG
-----------------------------------
Name:
Title:
By: /s/ DEUTSCHE BANK AG
-----------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ DEUTSCHE BANK AG
-----------------------------------
Name:
Title:
By: /s/ DEUTSCHE BANK AG
-----------------------------------
Name:
Title:
XXXXXXXX XXXXX XXXX, XXXXXXX
BRANCH
By: /s/ JPMORGAN CHASE BANK
-----------------------------------
Name:
Title:
By: /s/ JPMORGAN CHASE BANK
-----------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By: /s/ JPMORGAN CHASE BANK
-----------------------------------
Name:
Title:
By: /s/ JPMORGAN CHASE BANK
-----------------------------------
Name:
Title:
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THE BANK OF NOVA SCOTIA
By: /s/ THE BANK OF NOVA SCOTIA
--------------------------------------
Name:
Title:
By: /s/ THE BANK OF NOVA SCOTIA
--------------------------------------
Name:
Title:
BANK OF MONTREAL (Toronto Lending
Office)
By: /s/ BANK OF MONTREAL
--------------------------------------
Name:
Title:
BANK OF MONTREAL (Chicago Lending
Office)
By: /s/ BANK OF MONTREAL
--------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE
By: /s/ CANADIAN IMPERIAL BANK OF COMMERCE
--------------------------------------
Name:
Title:
By: /s/ CANADIAN IMPERIAL BANK OF COMMERCE
--------------------------------------
Name:
Title:
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CIBC INC. (New York Lending Office)
By: /s/ CIBC INC.
-----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: /s/ CREDIT SUISSE FIRST BOSTON
-----------------------------------
Name:
Title:
By: /s/ CREDIT SUISSE FIRST BOSTON
-----------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /s/ CREDIT SUISSE FIRST BOSTON
-----------------------------------
Name:
Title:
By: /s/ CREDIT SUISSE FIRST BOSTON
-----------------------------------
Name:
Title:
HSBC BANK USA (TORONTO
BRANCH)
By: /s/ HSBC BANK USA
-----------------------------------
Name:
Title:
By: /s/ HSBC BANK USA
-----------------------------------
Name:
Title:
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HSBC BANK USA
By: /s/ HSBC BANK USA
-----------------------------------
Name:
Title:
By: /s/ HSBC BANK USA
-----------------------------------
Name:
Title:
UBS BANK (CANADA)
By: /s/ UBS BANK
-----------------------------------
Name:
Title:
By: /s/ UBS BANK
-----------------------------------
Name:
Title:
UBS AG, Stamford Branch
By: /s/ UBS AG
-----------------------------------
Name:
Title:
By: /s/ UBS AG
-----------------------------------
Name:
Title:
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BANK OF AMERICA, NATIONAL
ASSOCIATION, by its Canada Branch
By: /s/ BANK OF AMERICA, NATIONAL ASSOCIATION
-----------------------------------------
Name:
Title:
By: /s/ BANK OF AMERICA, NATIONAL ASSOCIATION
-----------------------------------------
Name:
Title:
BANK OF AMERICA, NATIONAL
ASSOCIATION
By: /s/ BANK OF AMERICA, NATIONAL ASSOCIATION
-----------------------------------------
Name:
Title:
By: /s/ BANK OF AMERICA, NATIONAL ASSOCIATION
-----------------------------------------
Name:
Title:
XXXXXX XXXXXXX SENIOR
FUNDING, INC.
By: /s/ XXXXXX XXXXXXX SENIOR FUNDING, INC.
-----------------------------------------
Name:
Title:
By: /s/ XXXXXX XXXXXXX SENIOR FUNDING, INC.
-----------------------------------------
Name:
Title:
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XXXXXX XXXXXXX SENIOR
FUNDING, INC. CANADIAN DIVISION
By: /s/ XXXXXX XXXXXXX SENIOR FUNDING, INC. CANADIAN DIVISION
---------------------------------------------------------
Name:
Title:
By: /s/ XXXXXX XXXXXXX SENIOR FUNDING, INC. CANADIAN DIVISION
---------------------------------------------------------
Name:
Title:
SOCIETE GENERALE (CANADA)
By: /s/ SOCIETE GENERALE (CANADA)
---------------------------------------------------------
Name:
Title:
By: /s/ SOCIETE GENERALE (CANADA)
---------------------------------------------------------
Name:
Title:
SOCIETE GENERALE
By: /s/ SOCIETE GENERALE
----------------------------------------------------------
Name:
Title:
By: /s/ SOCIETE GENERALE
----------------------------------------------------------
Name:
Title:
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BANK OF TOKYO - MITSUBISHI
(CANADA)
By: /s/ BANK OF TOKYO - MITSUBISHI
-----------------------------------
Name:
Title:
By: /s/ BANK OF TOKYO - MITSUBISHI
-----------------------------------
Name:
Title:
THE BANK OF TOKYO - MITSUBISHI,
LTD., NY Branch
By: /s/ BANK OF TOKYO - MITSUBISHI LTD.
-----------------------------------
Name:
Title:
By: /s/ BANK OF TOKYO - MITSUBISHI LTD.
-----------------------------------
Name:
Title:
