EXHIBIT 10.3
HOMESTAKE MINING COMPANY
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
dated as of July 29, 1997 and entered into by and among HOMESTAKE MINING
COMPANY, a Delaware corporation ("Company"), HOMESTAKE MINING COMPANY, a
California corporation ("U.S. Borrower"), HOMESTAKE CANADA INC., an Ontario
corporation ("Canadian Borrower"), HOMESTAKE GOLD OF AUSTRALIA LIMITED, a South
Australian corporation ("Australian Borrower"), the financial institutions
listed on the signature pages hereof ("Lenders"), CANADIAN IMPERIAL BANK OF
COMMERCE ("Documentation Agent"), THE CHASE MANHATTAN BANK OF CANADA ("Canadian
Administrative Agent"), CHASE SECURITIES AUSTRALIA LIMITED ("Australian
Administrative Agent"), CHASE SECURITIES INC. ("Arranger"), and THE CHASE
MANHATTAN BANK ("Administrative Agent"), and is made with reference to that
certain Credit Agreement dated as of September 20, 1996, as amended to the date
hereof (as so amended, the "Credit Agreement"), by and among Guarantor, U.S.
Borrower, Canadian Borrower, Australian Borrower, Lenders, Documentation Agent,
Canadian Administrative Agent, Australian Administrative Agent, Arranger and
Administrative Agent. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit
Agreement to (a) modify the restriction on Liens contained in subsection 6.2A of
the Credit Agreement and (b) modify the assignment provisions set forth in
subsection 10.1 of the Credit Agreement, each as set forth below;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
Section 1. AMENDMENT TO THE CREDIT AGREEMENT.
A. Amendment to Subsection 6.2: Provisions Relating to Liens
and Related Matters. Subsection 6.2A of the Credit Agreement is hereby amended
by (i) deleting the word "and" appearing at the end of clause (iii) thereof,
(ii) deleting the "." appearing at the end of clause (iv) thereof and
substituting therefor "; and", and (iii) adding at the end of subsection 6.2A
the following:
1
"(v) Liens granted pursuant to that certain Pledge and Security
Agreement entered into by U.S. Borrower in favor of Bankers
Trust Company, as trustee for The Chase Manhattan Bank, in
connection with the Solid Waste Disposal Revenue Bonds
(Homestake Mining Company of California Project) Series 1997A,
as such agreement is in effect on July 29, 1997, and that
certain Pledge and Security Agreement entered into by U.S.
Borrower in favor of Bankers Trust Company, as trustee for The
Chase Manhattan Bank, in connection with the Solid Waste
Disposal Revenue Bonds (Homestake Mining Company of California
Project) Series 1997B, as such agreement is in effect on July
29, 1997."
B. Amendment to Subsection 10.1B. Assignments. Subsection
10.1B(i) of the Credit Agreement is hereby amended by adding immediately after
the first sentence of subsection 10.1B(i) the following:
"Notwithstanding the proviso in the immediately preceding
sentence, X.X. Xxxxxx Australia Limited may assign all [or any
portion] of its outstanding Loans, participations in Letters of
Credit, and Commitments to Xxxxxx Guaranty Trust Company of New
York, Sydney Branch, without the simultaneous assignment by the
Canadian Lender and the U.S. Lender of X.X. Xxxxxx Australia
Limited's Lending Unit of any portion of their respective
outstanding Loans, participations in Letters of Credit, and
Commitments."
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Effective
Date"):
A. On or before the Effective Date, Company shall deliver to
Administrative Agent (with sufficient originally executed copies for each
Lender) copies of this Amendment, executed by Company and each Borrower.
B. On or before the Effective Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
2
Section 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company and each
Borrower represents and warrants to each Lender that the following statements
are true, correct and complete:
A. Corporate Power and Authority. Company and each Borrower has
all requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company and each
Borrower.
C. No Conflict. The execution and delivery by Company and each
Borrower of this Amendment and the performance by Company and each Borrower of
the Amended Agreement do not and will not (i) violate any provision of any law
or any governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws or other
charter documents of Company or any of its Subsidiaries or any order, judgment
or decree of any court or other agency of government binding on Company or any
of its Subsidiaries, (ii) conflict with, result in a material breach of or
constitute (with due notice or lapse of time or both) a material default under
any Contractual Obligation of Company or any of its Subsidiaries, (iii) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of Company or any of its Subsidiaries (other than Liens created under
any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company or any of its
Subsidiaries.
D. Binding Obligation. This Amendment and the Amended Agreement
have been duly executed and delivered by Company and are the legally valid and
binding obligations of Company, enforceable against Company in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
E. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 4 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Effective Date to the same extent as though made on
and as of that date,
3
except to the extent such representations and warranties specifically relate to
an earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.
F. Absence of Default. No event has occurred and is continuing
or will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
Section 4. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and
the Other Loan Documents.
(i) On and after the Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy
of Administrative Agent or any Lender under, the Credit Agreement or
any of the other Loan Documents.
B. Fees and Expenses. Company acknowledges that all costs, fees
and expenses as described in Section 10.2 of the Credit Agreement incurred by
Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
C. Headings. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
4
E. Counterparts; Effectiveness. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by Company, each Borrower
and Requisite Lenders, receipt by Company and Administrative Agent of written or
telephonic notification of such execution and authorization of delivery thereof
and compliance with the provisions of Section 2 to this Amendment.
[Remainder of page intentionally left blank]
5
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
Company:
HOMESTAKE MINING COMPANY
By:____________________
Title:_________________
U.S. Borrower:
HOMESTAKE MINING COMPANY OF CALIFORNIA
By:____________________
Title:_________________
Canadian Borrower:
HOMESTAKE CANADA INC.
By:_____________________
Title:__________________
Australian Borrower:
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:_____________________
Title:__________________
S-1
LENDERS:
THE CHASE MANHATTAN BANK, individually, as a
U.S. Lender, as an Issuing Lender, and as
Administrative Agent
By:______________________
Title:___________________
THE CHASE MANHATTAN BANK OF CANADA,
individually, as a Canadian Lender, as an
Issuing Lender, and as Canadian Administrative
Agent
By:______________________
Title:___________________
THE CHASE MANHATTAN BANK, as an Australian
Lender
By:______________________
Title:___________________
CANADIAN IMPERIAL BANK OF COMMERCE,
individually, as a U.S. Lender, and as
Documentation Agent
By:______________________
Title:___________________
S-2
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Canadian Lender
By:______________________
Title:___________________
CIBC AUSTRALIA LIMITED, as an Australian
Lender
By:______________________
Title:___________________
BANK OF MONTREAL, as a U.S. Lender
By:_______________________
Title:____________________
BANK OF MONTREAL, as a Canadian Lender
By:_______________________
Title:____________________
THE CHASE MANHATTAN BANK, as an Australian
Lender (as fronting bank for Bank of Montreal)
By:_______________________
Title:____________________
X-0
XXX XXXX XX XXXX XXXXXX, as a U.S. Lender
By:________________________
Title:_____________________
THE BANK OF NOVA SCOTIA, as a Canadian Lender
By:________________________
Title:_____________________
THE BANK OF NOVA SCOTIA, as an Australian
Lender with respect to Letters of Credit and
Gold Loans
By:_________________________
Title:______________________
THE CHASE MANHATTAN BANK, as an Australian
Lender (as fronting bank for The Bank of Nova
Scotia) with respect to Bank Xxxx Swap Rate
Loans and Eurodollar Rate Loans
By:__________________________
Title:_______________________
CITICORP USA, INC., as a U.S. Lender
By:__________________________
Title:_______________________
S-4
CITIBANK CANADA, as a Canadian Lender
By:__________________________
Title:_______________________
CITIBANK LIMITED, as an Australian Lender
By:__________________________
Title:_______________________
CREDIT LYONNAIS, LOS ANGELES BRANCH, as a U.S.
Lender
By:__________________________
Title:_______________________
CREDIT LYONNAIS CANADA, as a Canadian Lender
By:__________________________
Title:_______________________
CREDIT LYONNAIS AUSTRALIA LIMITED, as an
Australian Lender
By:__________________________
Title:_______________________
X-0
XXXXXX XXXX, N.A. as a U.S. Lender
By:__________________________
Title:_______________________
MELLON BANK CANADA, as a Canadian Lender
By:__________________________
Title:_______________________
THE CHASE MANHATTAN BANK, as an Australian
Lender (as fronting bank for Mellon Bank,
N.A.)
By:__________________________
Title:_______________________
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
a U.S. Lender
By:__________________________
Title:_______________________
X.X. XXXXXX CANADA, as a Canadian Lender
By:___________________________
Title:________________________
S-6
X.X. XXXXXX AUSTRALIA LIMITED, as an
Australian Lender
By:____________________________
Title:_________________________
N M ROTHSCHILD & SONS LIMITED, as a U.S.
Lender
By:____________________________
Title:_________________________
N M ROTHSCHILD & SONS LIMITED, as a Canadian
Lender
By:____________________________
Title:_________________________
S-7
N M ROTHSCHILD & SONS LIMITED, as an
Australian Lender
By:____________________________
Title:_________________________
TORONTO DOMINION (TEXAS), INC., as a U.S.
Lender
By:____________________________
Title:_________________________
THE TORONTO-DOMINION BANK, as a Canadian
Lender
By:____________________________
Title:_________________________
TORONTO DOMINION AUSTRALIA LIMITED
ACN 004 858 020, as an Australian Lender
By:_____________________________
Title:__________________________
S-8
AUSTRALIAN ADMINISTRATIVE AGENT:
CHASE SECURITIES AUSTRALIA LIMITED,
as Australian Administrative Agent
By:_____________________________
Title:__________________________
ARRANGER:
CHASE SECURITIES INC., as Arranger
By:______________________________
Title:___________________________
S-9
