AMENDMENT
TO
CREDIT AGREEMENT
This Amendment to Credit Agreement (herein called the "Amendment") is made
and entered into as of the 31st day of October, 1995 by and between Addwest
Minerals, Inc., a corporation organized under the laws of the State of Kentucky
("Borrower"), and N M Rothschild & Sons Limited, a company organized and
existing under the laws of England ("Lender").
RECITALS
A. Borrower and Lender entered into a Credit Agreement dated as of June 14,
1994, which was informally amended as provided in a letter agreement dated June
29, 1995 from Lender to Borrower (collectively referred to as the "Credit
Agreement").
B. Borrower and Lender desire hereby to provide for the further amendment
of the Credit Agreement as provided herein, and to ratify and confirm the Credit
Agreement as so amended.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined in this Amendment, all
capitalized terms used herein that are defined in the Credit Agreement shall
have the same meanings as those meanings assigned to such terms in the Credit
Agreement.
2. Amendments to Credit Agreement Provisions.
a. Section 1.1 of the Credit Agreement is hereby amended by deleting
the definitions of "Completion Guarantee," "Installment Payment Date," "Loan
Documents" and "Scheduled Maturity Date" and substituting the following in their
place and stead:
"Completion Guarantee" means the Guarantee of the Guarantor in the
form of Exhibit E hereto, as may be subsequently amended, modified or
ratified with the consent of the Guarantor and Lender.
"Installment Payment Date" means October 31, 1995.
"Loan Documents" means this Agreement, the Note, the Hedging
Agreement, the Requests for Loans, the Conversion/Interest Period
Notices, the Security Documents and each other Instrument executed by
Borrower and delivered to Lender in connection
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with this Agreement or any of the foregoing Instruments, and any
amendment, modification or ratification thereto or thereof, whether or
not specifically identified in this paragraph."
"Scheduled Maturity Date" means the earlier to occur of (i) December
29, 1995 or (ii) the date on which the capital stock of the Borrower
or substantially all of the Borrower's assets are sold to a third
party.
b. Section 1.1 is hereby further amended by deleting the definitions
"Completion," "Completion Date" and "Completion Test" therefrom.
c. Section 3.4 of the Credit Agreement is hereby amended by deleting
the paragraph in its entirety and substituting the following in its place and
stead:
3.4 Principal and Interest Payments Generally. Unless Lender shall
otherwise consent in its sole discretion, all principal and interest
payments of Gold Loans shall be made in Gold, and all principal and
interest payments of Dollar Loans shall be made in Dollars; provided,
however, that the Scheduled Principal Payment to be made by Borrower as of
October 31, 1995 shall be made as follows notwithstanding the fact that the
Loans are outstanding as Gold Loans:
(a) Borrower shall deliver to Lender at Mettalor, which is an
Acceptable Delivery Location, and otherwise in the manner provided in
Section 3.14, 2,289.529 ounces of Gold, having an agreed Dollar Value of
$879,179.14;
(b) The ounces of Gold delivered by Borrower to Lender pursuant
to clause (a) above shall be deducted from the outstanding Principal Amount
of the Gold Loans as a partial payment of the Scheduled Principal Payment
Due as of October 31, 1995;
(c) Borrower has heretofore requested Lender to close out all
existing hedging contracts established by Borrower pursuant to the Hedging
Agreement, except such hedging contracts maturing in November and December,
1995, resulting in a profit of $424,099.48, which amount shall be retained
by Lender as a partial payment of the Scheduled Principal Payment Due as of
October 31, 1995;
(d) Borrower shall remit to Lender the sum of $696,721.38 as
provided in Section 3.14 in payment
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of the balance of the Scheduled Principal Payment due as of October 31,
1995; and
(e) The cash amounts specified in clauses (c) and (d) above will
be valued as ounces of Gold by Lender by reference to the London Price for
Gold in effect on October [27], 1995, and the number of ounces of Gold so
calculated shall be deducted from the outstanding Principal Amount of the
Gold Loans.
d. Clauses (a) and (b) of Section 3.5 are hereby amended by deleting
such clauses in their entirety and substituting the following therefor:
3.5 Interest.
(a) General. Borrower shall pay interest on the outstanding
Principal Amount of the Loans calculated on a 360-day year basis, at the
Gold Loan Interest Rate if the Loans are Gold Loans or at the Dollar Loan
Interest Rate if the Loans are Dollar Loans, in either case subject to
Section 3.5(c) below. Interest payable shall be calculated daily. Interest
shall be payable on the last day of each Interest Period.
(b) Interest Periods. The Loans shall have interest periods (an
"Interest Period") of 30 days, or such other period as Lender shall
approve in its sole discretion, and all Loans shall have the same Interest
Period.
e. Section 3.6(b) of the Credit Agreement is hereby amended by
deleting the paragraph in its entirety and substituting the following in its
place and stead:
(b) Scheduled Principal Payments. Subject to the other terms
hereof pertaining to mandatory prepayments of the Loans, Borrower will make
payment in full of the unpaid Principal Amount of the Loans not later than
the Maturity Date. Prior thereto, Borrower shall make a mandatory partial
repayment of the Loans on October 31, 1995 as provided in Section 3.4
above.
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f. Schedule 3.6(b) to the Credit Agreement is hereby amended by
deleting the schedule in its entirety.
g. Section 3.6 of the Credit Agreement is hereby amended by inserting
a new subparagraph (c), which shall read as follows:
(c) Sale of the Project. Lender shall not be required to consent
to the sale of the Project unless Borrower makes payment in full of amounts
due to Lender pursuant to the Loan Documents, including but not limited to
the Principal Amount, accrued interest, The Commitment Fee, the Management
Fee, the reasonable fees and expenses of legal counsel and any independent
consultants to Lender, and all other out-of-pocket expenses.
h. Section 7.1(f) of the Credit Agreement is hereby amended by
deleting the paragraph in its entirety and substituting the following in its
place and stead:
(f) Financial Statements; No Material Adverse Change. The
consolidated balance sheet of Guarantor as of December 31, 1994, and the
related consolidated statements of income and retained earnings of
Guarantor for the period then ended, audited by Xxxxxx Xxxxxxxx, copies of
which have been furnished to Lender, fairly present the financial condition
of Guarantor as at such date and the results of the operations of Guarantor
for the period ended on such date, all in accordance with GAAP consistently
applied. Guarantor does not have on the date hereof any material Contingent
Liability or liability for taxes, long-term leases or unusual forward or
long-term commitments that are not reflected in such financial statements.
Since such date, except as previously disclosed in writing to Lender,
neither the business, operations or prospects of Guarantor, nor any of its
properties or assets, have been affected by any occurrence or development
(whether or not insured against) that would result, either in any case or
in the aggregate, in a Materially Adverse Effect on Guarantor.
i. Sections 7.1(g), 7.1(h), 7.1(i), 7.1(l), 7.1(o), 7.1(p), 7.1(q),
7.1(r) and 7.1(u) of the Credit Agreement are deleted therefrom in their
entirety.
j. Sections 8.2(a), 8.2(c), 8.2(f), 8.2(g), 8.2(h), 8.2(i), 8.2(j)
and 8.2(k) of the Credit Agreement are deleted therefrom in their entirety.
k. Section 11.1 of the Credit Agreement is deleted therefrom in its
entirety.
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3. Confirmation of Obligations Concerning Interest and Management Fee
Payments. For avoidance of doubt, and not in limitation of any other
obligations of Borrower under the Credit Agreement, Borrower and Lender agree
that the foregoing agreements concerning the Scheduled Principal Payment to be
made by Borrower on October 31, 1995 do not modify the obligations of Borrower
under the Credit Agreement to make the Interest payments due as of such date or
at any time thereafter, or modify the obligations of Borrower to make the
Management Fee payments due November 1, 1995 or at any time thereafter.
4. Certain Waivers and Agreements of Lender. Upon satisfaction of the
conditions precedent set forth in Section 6 below, (a) Lender will have waived
all Events of Default of Borrower under the Credit Agreement which are in
existence as of the date hereof, or which may arise between the date hereof and
the Maturity Date, under Sections 9.6, 9.7, 9.8 an9.9 of the Credit Agreement,
and (b) Lender will have agreed to the sale by Borrower of the assets comprising
the Project, notwithstanding the provisions of Section 9.12 of the Credit
Agreement.
5. Representations and Warranties. Borrower hereby represents and warrants
as follows:
a. all representations and warranties made by Borrower in the Credit
Agreement are true and correct as of the date hereof;
b. there does not exist a Default under the Credit Agreement, as
amended hereby;
c. the proceeds of all Advances as of the date hereof were used
exclusively in accordance with the Development Plan; and
d. Borrower has performed and complied with all other agreements and
conditions in the Credit Agreement and in this Amendment required to be
performed or complied with by Borrower on or prior to the date hereof.
6. Conditions Precedent. The effectiveness of Sections 2 and 4 hereof is
subject to the receipt by Lender of the following documents:
a. the Consent and Ratification of Guarantee in the form of Exhibit A
hereto, duly executed by Guarantor;
b. a certificate of Borrower in the form of Exhibit B hereto, duly
executed by Borrower; and
c. a certificate of Guarantor in the form of Exhibit C hereto, duly
executed by Guarantor.
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7. Miscellaneous.
a. This Amendment is an amendment to the Credit Agreement, and the
Credit Agreement as hereby amended, is ratified, approved and confirmed by
Borrower and Lender in each and every respect. All references to the Credit
Agreement in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the Credit Agreement as amended hereby.
b. In accordance with Section 11.6 of the Credit Agreement, Borrower
shall pay on demand all reasonable costs and expenses in connection with the
preparation, execution, delivery and administration of this Amendment and the
other documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of legal counsel and any independent consultants to
Lender and all other out-of-pocket expenses of Lender, and all costs and
expenses, if any, in connection with the enforcement of this Amendment.
c. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Colorado, including the conflicts of law
provisions thereof.
d. No failure on the part of Lender to exercise, and no delay in
exercising, any rights hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.
e. The Credit Agreement, as amended on June 29, 1995, the Loan
Documents and this Amendment constitute the entire agreement between the parties
and such agreements supersede all prior and contemporaneous agreements,
representations, warranties and understandings between the parties. No further
supplement, modification or amendment of the Credit Agreement or any Loan
Document shall be binding unless executed in writing by all parties affected
thereby.
f. Borrower hereby waives any and all defenses Borrower may have
through the date hereof to Lender's enforcement of Borrower's obligations under
the Credit Agreement, the Note, the Hedging Agreement, and the Security
Documents.
g. Captions used in this Amendment are for the convenience of
reference only and shall not affect the construction of this Agreement.
h. This Amendment shall be binding upon Borrower and Lander, and their
respective successors and assigns, and shall inure the benefit of Borrower and
its successors and assigns.
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i. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Balance of page intentionally left blank.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written, to be effective as of such date.
ATTEST: ADDWEST MINERALS, INC.
------------------------------ By /s/ R. Xxxxxxx Xxxxxxxx
Secretary ---------------------------------
Name:
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Title:
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PER PRO
N M ROTHSCHILD & SONS LIMITED
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EXHIBIT A
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CONSENT AND RATIFICATION OF GUARANTY
TO: N M ROTHSCHILD & SONS LIMITED
Xxxxxxxxx Resources, Inc. ("Xxxxxxxxx"), as guarantor under that certain
Guaranty and Agreement dated April 20, 1994 (the "Guaranty") from Xxxxxxxxx to
N M Rothschild & Sons Limited ("NMR"), of all the obligations of Addwest
Minerals, Inc. ("Borrower") to NMR under the Credit Agreement dated as of June
14, 1994, as informally amended June 25, 1995 pursuant to a letter from NMR to
Borrower of such date (together the "Credit Agreement"), and under all documents
and instruments executed and delivered in connection therewith, in order to
induce NMR to enter into the Amendment, hereby
(a) consents to the execution by Borrower of the Amendment to Credit
Agreement dated as of October 31, 1993 (the "Amendment") and other
instruments in connection therewith,
(b) confirms and agrees that the Guaranty is, and shall continue to
be, in full force and effect, enforceable in accordance with its terms, and
that it extends to all obligations of Borrower under the Credit Agreement,
as amended by the Amendment, and
(c) ratifies and confirms the Guaranty in all respects.
All defined terms used in this Consent and Ratification of Guaranty that
are not defined herein shall have the meanings set forth in the Credit
Agreement.
Xxxxxxxxx hereby acknowledges receipt of a copy of the Amendment.
IN WITNESS WHEREOF, Xxxxxxxxx has caused this instrument to be executed
this ______ day of October, 1995.
XXXXXXXXX RESOURCES, INC.
By: /s/ R. Xxxxxxx Xxxxxxxx
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Name:
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Title:
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