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EXHIBIT 1(a)
DEALER MANAGER AGREEMENT
June 29, 2001
XXXXXXXXX XXXXXXXX, INC.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies/Gentlemen:
1. General. Coeur d'Xxxxx Xxxxx Corporation, an Idaho corporation (the
"Company"), proposes to offer to exchange $71,340,000 aggregate principal amount
of 13 3/8% Convertible Senior Subordinated Notes due December 31, 2003 (the
"Exchange Notes") that are convertible into common stock, par value $1.00 per
share, (the "Shares") of the Company for (i) $6,524,000 aggregate principal
amount of its outstanding 6% Convertible Subordinated Debentures due June 10,
2002 (the "6% Debentures") and (ii) $129,632,000 aggregate principal amount of
its outstanding 6 3/8% Convertible Subordinated Debentures due January 31, 2004
(the "6 3/8% Debentures") and 7 1/4% Convertible Subordinated Debentures due
October 31, 2005 (the "7 1/4% Debentures," and, together with the 6% Debentures
and the 6 3/8% Debentures, the "Debentures") (the "Exchange Offer"). For each
$1,000 principal amount of 6% Debentures accepted for exchange, the holder of
such 6% Debentures will receive $1,000 principal amount in Exchange Notes. For
each $2,000 principal amount of 6 3/8% Debentures and 7 1/4 % Debentures
accepted for exchange, the holders of such 6 3/8% Debentures and such 7 1/4%
Debentures will receive $1,000 principal amount in Exchange Notes. Capitalized
terms used herein without definition shall have their respective meanings set
forth in or pursuant to the Exchange Offer Materials (as defined herein).
2. Engagement as Dealer Manager. By this Dealer Manager Agreement (the
"Agreement"), the Company hereby engages and appoints you as the exclusive
Dealer Manager for the Exchange Offer and authorizes you to act as such in
connection with the Exchange Offer.
As Dealer Manager you agree, in accordance with your customary practice,
to use reasonable efforts to perform in connection with the Exchange Offer
those services as are customarily performed by investment banking concerns in
connection with similar offers, including, without limitation, soliciting from
individuals and institutions the tender of the Debentures pursuant to and in
accordance with the terms and conditions of the Exchange Offer. You shall act
as an independent contractor in connection with the Exchange Offer with duties
solely to the Company, and nothing herein contained shall constitute you as an
agent of the Company in connection with the solicitation of the tender of
Debentures pursuant to and in accordance with the terms and conditions of the
Exchange Offer; provided, however, that the
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Company hereby authorizes the Dealer Manager and/or one or more registered
brokers or dealers chosen by the Dealer Manager, to act as the Company's agent
in making the Exchange Offer to residents of any jurisdiction in which such
agent designation may be necessary to comply with applicable law. Nothing in
this Agreement shall constitute the Dealer Manager a partner or joint venturer
with the Company or any of its subsidiaries. On the basis of the
representations and warranties and agreements of the Company contained herein
and subject to and in accordance with the terms and conditions hereof and of
the Exchange Offer, the Dealer Manager agrees to act in such capacity.
3. Registration Statement, Prospectus and Offering Materials.
(a) The Company has prepared and filed with the Securities
and Exchange Commission (the "Commission"), under the Securities Act of 1933,
as amended (the "Securities Act"), the Trust Indenture Act of 1939, as amended
(the "TIA"), and applicable rules and regulations (the "Rules and
Regulations") of the Commission under both Acts, a registration statement on
Form S-4 (File No. 333-63472), including a Prospectus, covering the
registration of the offer and sale of the Exchange Notes; the Shares issuable
upon conversion of the Exchange Notes; and the Shares that may be issued
solely at the Company's option as payment of interest on the Exchange Notes.
The term "Registration Statement" as used in this Agreement shall mean such
registration statement, including financial statements, schedules and
exhibits, in the form in which it becomes effective and, in the event of any
amendment thereto or the filing of any abbreviated registration statement
pursuant to Rule 462(b) of the Rules and Regulations relating thereto after
the effective date of such registration statement, shall also mean (from and
after the effectiveness of such amendment or the filing of such abbreviated
registration statement) such registration statement as so amended, together
with any such abbreviated registration statement. The term "Prospectus" as
used in this Agreement shall mean the final Prospectus included in the
Registration Statement. Notwithstanding the foregoing, if any revised
Prospectus shall be provided to you by the Company for use in connection with
the Exchange Offer that differs from the Prospectus referred to in the
immediately preceding sentence (whether or not such revised Prospectus is
required to be filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations), the term "Prospectus" shall refer to such revised Prospectus
from and after the time it is first provided to you for such use. Any
reference to the Registration Statement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant
to Item 13 of Form S-4 under the Securities Act, as of the date of the
Registration Statement or the Prospectus, as the case may be, and any
reference to any amendment or supplement to the Registration Statement or the
Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the Rules and Regulations of the Commission thereunder, which, upon
filing, are incorporated by reference therein, as required by Item 13 of Form
S-4. As used in this Agreement, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the Registration
Statement, the Prospectus or any amendment or supplement thereto. The terms
"supplement" and "amendment" or "supplemented" and "amended" as used herein
with respect to the Prospectus shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to
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the date of the Prospectus and prior to the termination of the Exchange Offer
by the Company with the Commission pursuant to the Exchange Act and the Rules
and Regulations of the Commission thereunder.
(b) The Company has prepared and filed, or agrees that prior
to or on the date of commencement of the Exchange Offer (the "Commencement
Date") it will file, with the Commission under the Exchange Act and the Rules
and Regulations of the Commission promulgated thereunder a Statement on
Schedule TO with respect to the Exchange Offer, including the exhibits thereto
and any documents incorporated by reference therein. The term "Schedule TO" as
used in this Agreement shall mean such Schedule TO, including any amendment or
supplement thereto.
(c) The Registration Statement, Prospectus, Schedule TO, the
related letters from the Dealer Manager to securities brokers, dealers,
commercial banks, trust companies and other nominees that have been approved
for use by the Company, which approval shall not be unreasonably withheld,
letters to beneficial owners of Debentures, the Letters of Transmittal and any
newspaper announcements, if any, press releases and other exchange offer
solicitation materials and information the Company may prepare, approve,
publicly disseminate, provide to registered or beneficial holders of
Debentures or authorize for public dissemination or use by registered or
beneficial holders of Debentures in connection with the Exchange Offer, are
collectively referred to as the "Exchange Offer Materials."
4. Use of Exchange Offer Material.
(a) The Exchange Offer Materials have been or will be
prepared and approved by, and are the sole responsibility of, the Company. The
Company shall disseminate or, to the extent permitted by law use its best
efforts to disseminate, the Exchange Offer Materials to each registered Holder
of any Debentures, as soon as is practicable on the Commencement Date,
pursuant to Rule 13e-4 under the Exchange Act, and comply with its obligations
thereunder. Thereafter, to the extent practicable, until three days prior to
the expiration date of the Exchange Offer (the "Expiration Date"), the Company
shall use its best efforts to cause copies of such Exchange Offer Materials
and a return envelope to be mailed to each person who becomes a Holder of
record of any Debentures. The Company acknowledges and agrees that you may use
the Exchange Offer Materials, as specified herein without assuming any
responsibility for independent verification on your part other than
information about the Dealer Manager supplied by you in writing; and the
Company represents and warrants to you that you may rely on the accuracy and
completeness of any information delivered to you by or on behalf of the
Company without assuming any responsibility for independent verification of
such information and without performing or receiving any appraisal or
evaluation of the assets or liabilities of the Company.
(b) The Company agrees to provide you with as many copies as
you may reasonably request of the Exchange Offer Materials. The Company agrees
that within a reasonable time prior to using or filing with the Commission or
any governmental or regulatory entity or agency (an "Other Agency"), including
the National Association of Securities Dealers, Inc. (the "NASD"), of any
Exchange Offer Materials, it will submit copies of such materials to
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you and your counsel and will give reasonable consideration to your and your
counsel's comments, if any, thereon. The Company agrees prior to the
termination of the Exchange Offer, before amending or supplementing the
Registration Statement or the Prospectus, to furnish copies of drafts to, and
consult with, you and your counsel within a reasonable time in advance of
filing with the Commission of any amendment or supplement to the Registration
Statement, the Prospectus or the other Exchange Offer Materials and will give
reasonable consideration to your and your counsel's comments, if any, thereon.
(c) Except in the case of the 6% Debenture holders, the
Company has furnished or shall use its best efforts to furnish to you, or
cause the transfer agents or registrars for the Exchange Notes to furnish to
you, as soon as practicable after the date hereof (to the extent not
previously furnished), cards or lists in reasonable quantities or copies
thereof showing the names of persons who were the holders of record or, to the
extent available, the beneficial owners of the Exchange Notes as of a recent
date, together with their addresses and the aggregate principal amount at
maturity of the Exchange Notes held by them. Additionally, the Company shall
update, or cause the transfer agents or registrars referred to above to
update, such information from time to time during the term of this Agreement
as may be reasonably requested by you. Except as otherwise provided herein,
you agree to use such information only in connection with the Exchange Offer.
(d) The Company authorizes the Dealer Manager to use the
Exchange Offer Materials in connection with the Exchange Offer for such period
of time as any such materials are required by law to be delivered in
connection therewith. The Dealer Manager shall not have any obligation to
cause any Exchange Offer Materials to be transmitted generally to the holders
of Debentures.
(e) The Company authorizes the Dealer Manager to communicate
with the information agent (the "Information Agent") or exchange agent (the
"Exchange Agent") appointed by the Company to act in such capacity in
connection with the Exchange Offer. The Company will arrange for the
Information Agent and/or Exchange Agent to advise you, as necessary and at
least daily, as to such matters relating to the Exchange Offer as you may
reasonably request.
(f) The Company agrees that any reference to the Dealer
Manager in any Exchange Offer Materials or in any newspaper announcement or
press release or other document or communication is subject to the Dealer
Manager's prior consent, which consent shall not be unreasonably withheld.
5. Withdrawal. In the event that the Company (i) uses or permits the use
of, or files with the Commission or any Other Agency, any Exchange Offer
Materials or any amendment or supplement to the Registration Statement or the
Prospectus, and such document (a) has not been submitted to you previously for
your and your counsel's comments; or (b) has been so submitted, and you or
your counsel have made comments which have not been reflected in a manner
reasonably satisfactory to you or your counsel; (ii) breaches, in any material
respect, any of its
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representations, warranties, agreements or covenants herein; or (iii) amends
or revises the Exchange Offer in a manner not reasonably acceptable to you,
then you shall be entitled to withdraw as Dealer Manager in connection with
the Exchange Offer without any liability or penalty to you and without loss of
any right to indemnification or contribution provided in Section 11 or to the
payment of all fees and expenses payable under Sections 6 and 7 below which
have accrued to the date of such withdrawal (it being agreed that in the event
of any such withdrawal, for the purpose of determining the fees payable to you
pursuant to Section 6, the aggregate principal amount of Debentures tendered
pursuant to the Exchange Offer as of the close of business on the date of such
withdrawal that are thereafter acquired by the Company or any of its
subsidiaries or affiliates pursuant to the Exchange Offer or otherwise shall
be deemed to have been acquired as of the date of such withdrawal).
6. Fees. As compensation for your services in connection with the
Exchange Offer, the Company will pay you a graduated fee determined in
accordance with the fee schedule set forth below as of the Expiration Date
with regard to the Debentures validly tendered and accepted for exchange
pursuant to the Exchange Offer:
Amount of Aggregate Paid in Exchange Maximum Cumulative
Principal Amount of Notes Amount Paid in
Debentures Converted Graduated Fee Exchange Notes
-------------------- ------------- --------------
(in millions)
$0.0 to $60.0 0.50% $300,000
$60.0 to $80.0 1.00% $500,000
$80.0 to $100.0 2.50% $1,000,000
$100.0 to $136.0 3.50% $2,260,000
$136.0 to $147.0 5.00% $2,810,000
$147.0 to $188.0 0.00% $2,810,000
------ ------ ----- ----------
If the fees earned and the expenses incurred are less than $50,000, then you
will refund the amount of the difference from the retainer of $50,000 paid by
the Company. The remaining fees, if any, shall be paid by the Company on the
date when the Exchange Offer is consummated (the "Closing Date"). The total
fee due and payable by the Company will be paid in Exchange Notes in
accordance with the table above, and represents 125% of the fee payable by the
Company if paid in cash.
7. Expenses. The Company agrees that it will pay the costs and expenses
incident to the performance of the obligations hereunder whether or not any
Exchange Notes are issued in exchange for Debentures in the Exchange Offer,
including, without limitation (i) all costs and expenses incurred by dealers
and brokers (including yourself), commercial banks, trust companies and
nominees for their customary mailing and handling expenses incurred in
forwarding the Exchange Offer Materials to their customers, (ii) the filing
fees and expenses, if any, incurred with respect to any filing with the New
York Stock Exchange (the "NYSE"), (iii) all costs and expenses incident to the
preparation, issuance, execution and delivery of the
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Exchange Notes upon exchange of the Debentures, (iv) all costs and expenses
incident to the preparation, printing and filing under the Securities Act of
the Registration Statement and the Prospectus (including, without limitation,
in each case all exhibits, amendments and supplements thereto), (v) all costs
and expenses incurred in connection with the registration or qualification of
the Exchange Notes issuable upon exchange of the Debentures under the laws of
such jurisdictions as the Dealer Manager may designate, if any (including,
without limitation, reasonable fees of counsel for the Dealer Manager and its
reasonable disbursements), (vi) all costs and expenses incurred in connection
with the printing (including word processing and duplication costs) and
delivery of all Exchange Offer Materials (including, without limitation, any
preliminary and supplemental Blue Sky memoranda) including, without
limitation, mailing and shipping, (vii) all advertising expenses related to
the Exchange Offer and the fees and expenses of the Exchange Agent and the
Information Agent, (viii) all fees and expenses incurred in marketing the
Exchange Offer, including but not limited to road show presentations, if any,
and (ix) the fees and disbursements of Xxxxx & Xxxxxxx, counsel to the
Company, and Xxxxxx Xxxxxxxx LLP, auditors to the Company. In addition, the
Company agrees to reimburse the reasonable out-of-pocket expenses of the
Dealer Manager in connection with the Exchange Offer, including without
limitation, reasonable legal fees and expenses of your counsel in connection
with the Exchange Offer.
8. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to you, and agrees with you, that:
(a) The Registration Statement, including the Prospectus,
has been prepared by the Company in conformity with the requirements of the
Securities Act and the Rules and Regulations thereunder and has been filed
with the Commission; such amendments to such Registration Statement and
Prospectus and such abbreviated registration statements pursuant to Rule
462(b) of the Rules and Regulations as may have been required prior to the
date hereof have been similarly prepared and filed with the Commission; and
the Company will file such additional amendments to such Registration
Statement and Prospectus and such abbreviated registration statements as may
hereafter be required. Copies of such Registration Statement and Prospectus,
including all amendments thereto and all documents incorporated by reference
therein, and of any abbreviated registration statement pursuant to Rule 462(b)
of the Rules and Regulations have been or, if filed after the Commencement
Date, will be, delivered or made available to you and your counsel.
(b) The Schedule TO has been prepared by the Company in
conformity with the requirements of the Exchange Act and the Rules and
Regulations of the Commission thereunder and has been filed with the
Commission; such amendments to such Schedule TO as may have been required
prior to the date hereof have been similarly prepared and filed with the
Commission; and the Company will file such additional amendments to such
Schedule TO as may hereafter be required. Copies of such Schedule TO,
including all amendments thereto and all documents incorporated by reference
therein have been or, if filed after the Commencement Date will be, delivered
made available to you and your counsel.
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(c) The Registration Statement, including the Prospectus,
has been filed as of the Commencement Date and will become effective not later
than the Expiration Date; and the Commission has not issued any order refusing
or suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Prospectus or instituted proceedings for that
purpose. The Exchange Offer Materials, including the Registration Statement,
the Schedule TO and the Prospectus, comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act, the
Exchange Act and the TIA, and the applicable Rules and Regulations of the
Commission thereunder. The Registration Statement, when it becomes effective,
will not contain and, as amended or supplemented, if applicable, will not
contain, any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor the other Exchange Offer Materials
contain, and, as amended or supplemented, if applicable, will contain, any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that none of the
representations and warranties contained in this subparagraph (c) shall apply
to information contained in or omitted from the Exchange Offer Materials or
the Registration Statement or Prospectus, or any amendment or supplement
thereto, in reliance upon, and in conformity with, written information
relating to you furnished to the Company by you specifically for use in the
preparation thereof.
The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the Rules and Regulations of the
Commission thereunder; no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed)
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and no such further amendment will contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation with full power and authority (corporate and other) to
own, lease and operate its properties and conduct its business as described in
the Prospectus; the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified or be in good
standing would not have a material adverse effect on the condition (financial
or otherwise), earnings, operations, business or business prospects of the
Company and its subsidiaries taken as a whole ("Material Adverse Effect").
(e) Each of the Company's significant subsidiaries has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation; has the corporate
power to own, lease and operate its properties and conduct its
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business as described in the Prospectus; is qualified to do business as a
foreign corporation and is in good standing in each jurisdiction, if any, in
which the ownership and leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be so
qualified or be in good standing would not have a Material Adverse Effect.
Significant Subsidiaries is defined as in Rule 405 under the Securities Act
and are referred to as the "Significant Subsidiaries."
(f) All of the issued and outstanding shares of capital
stock of each of the Significant Subsidiaries have been duly authorized and
validly issued and are fully paid and nonassessable, and, have not been issued
in violation of or subject to any preemptive right, co-sale right,
registration right, right of first refusal or other similar right and, except
as disclosed in the Registration Statement, Prospectus and Exchange Offer
Materials, are owned by the Company (except for directors' qualifying shares),
free and clear of any pledge, lien, security interest, encumbrance, claim or
equitable interest (other than such preemptive rights or other rights to
subscribe for or purchase securities as were fully complied with or expressly
waived or with respect to the violation of which the right to make a claim is
barred by the applicable statute of limitations).
(g) The Company has full legal right, power and authority to
enter into and perform its obligations under this Agreement, the Indenture and
the Exchange Notes and to consummate the Exchange Offer and all other
transactions contemplated in the Exchange Offer Materials. The Exchange Offer
and all other actions by the Company contemplated in the Exchange Offer
Materials have been duly and validly authorized by all necessary corporate
action by the Company, and no other corporate proceedings by the Company are
necessary to authorize such actions. This Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid and binding
agreement on the part of the Company, enforceable in accordance with its
terms, except as rights to indemnification hereunder may be limited by
applicable law and except as the enforcement hereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles. The execution and delivery by the Company of, and the
performance by the Company of its obligations under this Agreement, the
Exchange Offer, the issuance and delivery by the Company of the Exchange Notes
pursuant to the Exchange Offer, the consummation of the Exchange Offer, and
the other transactions contemplated in the Exchange Offer Materials, and the
fulfillment of the terms hereof and thereof, do not and will not result in a
material breach or violation of any of the terms and provisions of, or
constitute a material default under, (i) any material bond, debenture, note or
other evidence of indebtedness, or under any material lease, contract,
indenture, mortgage, deed of trust, loan agreement, joint venture or other
material agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective properties may be bound, (ii) the charter or bylaws of the Company
or any of its subsidiaries, or (iii) any law, order, rule, regulation, writ,
injunction, judgment or decree of any court, government or governmental agency
or body, domestic or foreign, having jurisdiction over the Company, any of its
subsidiaries, or over their respective properties; except where any
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breach, violation, or default described in (i), (ii) or (iii) would not have a
Material Adverse Effect. No consent, approval, authorization, permit or order
or qualification with any court, government or governmental agency or body,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or over their respective properties is required for the execution
and delivery of this Agreement, the Exchange Offer, the issuance and delivery
of the Exchange Notes pursuant to the Exchange Offer, and the consummation by
the Company or any of its subsidiaries of the transactions contemplated herein
or in the Exchange Offer Materials, except such as may be required under the
Securities Act, the Exchange Act, or under state or other securities, or Blue
Sky laws, all of which requirements have been satisfied other than as
contemplated by such agreements or except where such requirement would not
have a material adverse effect on the execution and delivery of this
Agreement, the Exchange Offer, the execution and delivery of the Indenture,
the issuance of the Exchange Notes or the consummation of the transactions
contemplated herein or in the Exchange Offer Materials.
Notwithstanding the foregoing, to the extent any of the
foregoing representations speak as to any of the Company's subsidiaries, such
representations shall be deemed to be made only as they relate to the
execution and delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement, the Exchange Offer, the issuance and
delivery by the Company of the Exchange Notes pursuant to the Exchange Offer,
and the consummation of the Exchange Offer, but no other transaction
contemplated in the Exchange Offer Materials.
(h) Except as disclosed in the Prospectus, there is not, to
the best of the Company's knowledge, after due inquiry, any pending or
threatened action, suit, claim or proceeding against the Company, any of its
subsidiaries or any of their respective officers or any of their respective
properties, assets or rights before any court, government or governmental
agency or body, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or over their respective officers or properties or
otherwise which might prevent consummation of the Exchange Offer, the
transactions contemplated hereby or thereby or the other transactions
contemplated in the Exchange Offer Materials that has not been accurately
described in all material respects in the Registration Statement or the
Prospectus.
(i) To the best of the Company's knowledge, after due
inquiry, the Company is not in violation of any law, ordinance, administrative
or governmental rule or regulation or court decree applicable to it, is not in
violation of any term or condition of, and has not failed to obtain, any
license, claim, permit, franchise or other administrative or governmental
authorization necessary to the ownership or lease of its properties and assets
or to the conduct of its business as it is presently conducted, which
violation, or failure to obtain would, individually or in the aggregate, have
a Material Adverse Effect, or which might, if determined adversely to the
Company, materially and adversely affect the execution, delivery or
performance by the Company of this Agreement. All such licenses, claims,
permits, franchises or other administrative or governmental authorizations
which are so required are, and on the Closing Date will be, valid and
subsisting and in good standing.
(j) There are no agreements, contracts, leases or documents
of the Company
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or any of its subsidiaries of a character required to be described or referred
to in the Registration Statement or the Prospectus or any Incorporated
Document or to be filed as an exhibit to the Registration Statement or any
Incorporated Document by the Securities Act or the Rules and Regulations
thereunder or by the Exchange Act or the Rules and Regulations of the
Commission thereunder which have not been accurately described in all material
respects in the Registration Statement or Prospectus or any Incorporated
Document or filed as exhibits to the Registration Statement or any
Incorporated Document.
(k) All outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities, and the
authorized and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" and conforms in all material
respects to the statements relating thereto contained in the Registration
Statement and the Prospectus and any Incorporated Document (and such
statements correctly state the substance of the instruments defining the
capitalization of the Company); a sufficient number of Shares to be issuable
pursuant to the terms of the Exchange Notes have been duly authorized for
issuance and delivery and, when issued and delivered by the Company in
accordance with the terms of the Exchange Notes will be duly and validly
issued and fully paid and nonassessable, and will be free and clear of any
pledge, lien, security interest, encumbrance, claim or equitable interest; and
no preemptive right, co-sale right, registration right, right of first refusal
or other similar right of shareholders exists with respect to any of the
Shares issuable pursuant to the terms of the Exchange Notes to be issued in
the Exchange Offer or the issuance thereof other than those that have been
expressly waived prior to the date hereof and those that will automatically
expire upon and will not apply to the consummation of the transactions
contemplated on or before the Closing Date. No further approval or
authorization of any shareholder, the Board of Directors of the Company or
others is required for the issuance or transfer of the Shares issuable
pursuant to the terms of the Exchange Notes and except as may be required
under the Securities Act, the Exchange Act or under state or other securities
or Blue Sky laws.
(l) The Indenture has been or will be duly authorized by the
Company, has been filed as of the Commencement Date, will be qualified under
the TIA not later than the Expiration Date, and assuming due authorization,
execution and delivery of the Indenture by the Trustee, when executed and
delivered by the Company, will constitute a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as the enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws affecting enforcement of
creditors' rights generally and (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in equity).
(m) The Exchange Notes to be issued pursuant to the Exchange
Offer have been authorized, and assuming due authorization, execution and
delivery of the Indenture by the Trustee, when executed and authenticated in
accordance with the provisions of the Indenture and
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delivered in accordance with the terms of the Exchange Offer, will be entitled
to the benefits of the Indenture and will be valid and binding obligations of
the Company enforceable in accordance with their terms, except as the
enforcement thereof may be limited by the (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
affecting enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity). The Exchange Notes will conform in all
material respects to the description thereof contained in the Registration
Statement and Prospectus.
(n) The consolidated financial statements (including the
related notes) included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendments or supplements thereto)
present fairly, in all material respects, the financial position of the
Company, including the results of operations and cash flows of the Company at
the dates and for the periods indicated, in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated except as may otherwise be stated therein. The interim consolidated
financial statements (including the related notes) included or incorporated by
reference in the Registration Statement and the Prospectus (and any amendments
and supplements thereto) have been prepared on a basis consistent with the
audited consolidated financial statements except as otherwise stated therein,
and include all adjustments, including normal recurring adjustments necessary
to present fairly the financial information therein. The selected and summary
consolidated financial and statistical data included in the Registration
Statement and the Prospectus (and any amendments or supplements thereto)
present fairly the information shown therein and have been compiled on a basis
consistent with the audited financial statements presented therein. No
financial statements or schedules, other than the consolidated financial
statements or schedules that are included in the Registration Statement and
the Prospectus (and any amendments or supplements thereto), are required to be
included therein.
(o) Except as disclosed in the Registration Statement and
Prospectus, the Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and has been listed on the NYSE, and the Company has taken no
action designed to terminate, or likely to have the effect of terminating, the
registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the NYSE, nor has the Company received any notification that
the Commission or the NYSE is contemplating terminating such registration or
listing.
(p) All of the information provided by the Company in
connection with the preparation of its ore reserve reports was, at the time
provided, and continues to be as of the date hereof, true and correct in all
material respects. The Company believes that all of the assumptions made by
its internal Ore Reserve Committee and/or independent third parties in
reaching the conclusions stated in the ore reserve reports are reasonable and
appropriate, and that the production estimates of the Company which are based
on the ore reserve reports are reasonable and appropriate.
(q) The Company or each of its subsidiaries holds freehold
title, mining leases, mining claims or other conventional proprietary
interests or rights recognized in the
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jurisdiction in which each property described in the Prospectus is located, in
the ore bodies and mineral inventories described in the Prospectus (and all
properties respectively relating thereto) under valid, subsisting and
enforceable title documents, contracts, leases, licenses of occupation, mining
concessions, permits, or other recognized and enforceable instruments and
documents, sufficient to permit the Company or any of its subsidiaries, as the
case may be, to explore for, extract, exploit, remove, process and refine the
minerals relating thereto, except where the failure to so hold such interests
or rights would not have a Material Adverse Effect. In addition, either the
Company or each of its subsidiaries has all necessary surface rights, water
rights and rights in water, rights of way, licenses, easements, ingress,
egress and access rights, and all other necessary rights and interests
granting the Company or each of its subsidiaries, as the case may be, the
rights and ability to explore for, mine, extract, and remove the minerals
derived from the ore bodies and mineral inventories described in the
Prospectus and to transport for refinement or market or distribute the ore and
metals produced, all as referred to in the Prospectus, with only such
exceptions as are described in the Prospectus or as do not have a Material
Adverse Effect. Each of the aforementioned interests and rights is currently
in good standing except for those interests and claims which, if not kept in
good standing, would not have a Material Adverse Effect.
(r) Ernst & Young LLP, who has reported upon the fiscal year
1998 audited financial statements of the Company, and Xxxxxx Xxxxxxxx LLP, who
has reported upon the fiscal year 1999 and fiscal year 2000 audited financial
statements of the Company, are, and during the periods covered by the reports
were, independent of the Company as defined under the Securities Act.
(s) The Company has conducted, and intends in the future to
conduct, its affairs in such a manner as to ensure that it is not and will not
become an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act"), and the Rules and Regulations thereunder.
(t) The Company has not distributed and will not distribute
prior to the later of (i) the Closing Date, and (ii) completion of the
distribution of the Exchange Notes in exchange for the Debentures pursuant to
the Exchange Offer, any offering material in connection with the Exchange
Offer other than the Exchange Offer Materials.
(u) The Company has not taken and will not take, directly or
indirectly, any action resulting in a violation of Rule 102 of Regulation M
promulgated under the Exchange Act or designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the distribution of the Exchange Notes.
(v) The Exchange Agent Agreement and the Information Agent
Agreement between the Company and The Bank of New York (the "Exchange Agent
Agreement") and X.X. Xxxx & Co., Inc. (the "Information Agent Agreement"),
respectively, is or will be in full force and effect.
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(w) Except as disclosed in the Prospectus and except as
would not, singly or in the aggregate, result in a Material Adverse Effect,
(i) neither the Company nor any of its subsidiaries is in violation of or has
liability under any federal, state, local, municipal or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials"), to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials, or to the restoration, reclamation of or compensation for
natural resources (collectively, "Environmental Laws"), (ii) the Company and
its subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (iv) to the knowledge of the Company,
there are no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(x) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent, and
the Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may reasonably
be expected to result in a Material Adverse Effect.
(y) All written communications, in addition to the Schedule
TO, made during the period from the first public announcement and to the
earlier of either the termination date or the Closing Date of the Exchange
Offer, have been or will be filed with the Commission in accordance with the
Exchange Act and the Rules and Regulations thereunder, including Rule 13e-4
under the Exchange Act.
(z) Except as disclosed in the Prospectus, there are no
persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act.
9. Further Agreements of the Company. The Company agrees with you that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof to become effective as soon
as possible but no later than the
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Expiration Date; the Company will use its best efforts to cause any
abbreviated registration statement pursuant to Rule 462(b) of the Rules and
Regulations as may be required subsequent to the date the Registration
Statement is declared effective to become effective as promptly as possible;
the Company will notify you, promptly after it shall receive notice thereof,
of the time when the Registration Statement, any subsequent amendment to the
Registration Statement or any abbreviated registration statement has become
effective or any supplement to the Prospectus or additional Exchange Offer
Materials has been filed; if for any reason the filing of the final form of
Prospectus is required under Rule 424(b)(3) of the Rules and Regulations, the
Company will provide evidence satisfactory to you that the Prospectus contains
such information and has been filed with the Commission within the time period
prescribed; the Company will notify you promptly of any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or other Exchange Offer Materials or for additional information
relating to the Exchange Offer; promptly upon your request, the Company will
prepare and file with the Commission any amendments or supplements to the
Registration Statement or Prospectus or other Exchange Offer Materials which,
in the opinion of Your counsel, may be necessary or advisable in connection
with the Exchange Offer; the Company will promptly prepare and file with the
Commission, and promptly notify you of the filing of, any amendments or
supplements to the Registration Statement or the Prospectus or other Exchange
Offer Materials which may be necessary to correct any statements or omissions,
if, at any time when a Prospectus relating to the Exchange Offer is required
to be delivered under the Securities Act and the Exchange Act, any event shall
have occurred as a result of which the Prospectus or any other prospectus
relating to the Exchange Offer as then in effect would include any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; and the Company will file no amendment or
supplement to the Registration Statement or the Prospectus or other Exchange
Offer Materials or the Incorporated Documents, or, prior to the end of the
period of time in which the Exchange Offer Materials relating to the Exchange
Offer are required to be delivered under the Securities Act and the Exchange
Act, file any document which upon filing becomes an Incorporated Document,
which shall not previously have been submitted to you a reasonable time prior
to the proposed filing thereof and will give reasonable consideration to your
or your counsel's comments, if any, thereon, subject, however, to compliance
with the Securities Act and the Rules and Regulations, the Exchange Act and
the Rules and Regulations of the Commission thereunder and the provisions of
this Agreement. Notwithstanding anything else to the contrary set forth in
this Agreement, the Company reserves the right to terminate the Exchange Offer
prior to the Expiration Date of the Exchange Offer or amend or modify the
business terms of the Exchange Offer in its sole and absolute discretion,
subject to the Company's obligations under Sections 6, 7 and 11 of this
Agreement in the event that the Dealer Manager withdraws pursuant to Section 5
as a result of any such termination, amendment or modification.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge, of the issuance of any order by the
Commission refusing or suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceeding for that purpose;
and it will promptly use its best efforts to prevent the issuance of any
refusal or stop
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order or to obtain its withdrawal at the earliest possible moment if such
refusal or stop order should be issued.
(c) The Company will use its best efforts to qualify the
Exchange Notes issuable pursuant to the Exchange Offer under the securities
laws of such jurisdictions as you may designate and to continue such
qualifications in effect for so long as may be required for purposes of the
Exchange Offer, except that the Company shall not be required in connection
therewith or as a condition thereof to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction in which
it is not otherwise required to be so qualified or to so execute a general
consent to service of process. In each jurisdiction in which the Exchange
Notes shall have been qualified as above provided, the Company will make and
file such statements and reports in each year as are or may be required by the
laws of such jurisdiction. (d) The Company will use its best efforts to have
the Exchange Notes and the shares of Common Stock underlying the Exchange
Notes listed on the NYSE.
(e) The Company will make generally available to its
security holders and to the Dealer Manager by filing with the Commission as
soon as is practicable, an earnings statement covering a twelve-month period
beginning not later than the first day of the Company's next fiscal quarter
following the effective date of the Registration Statement that satisfies the
provisions of Section 11(a) of the Securities Act and the Rules and
Regulations of the Commission thereunder.
(f) The Company will use its best efforts to advise or cause
the Exchange Agent to advise the Dealer Manager at 5:00 P.M., Eastern Time, or
promptly thereafter, daily (or more frequently if requested), by telephone or
facsimile transmission, with respect to Debentures tendered as follows: (i)
the aggregate principal amount of Debentures validly tendered and represented
by confirmations of receipt of book-entry transfer of Debentures pursuant to
the procedures set forth in the Exchange Offer on such day, (ii) the aggregate
principal amount of any Debentures properly withdrawn on such day, and (iii)
the cumulative totals of the principal amount of Debentures in categories (i)
through (ii), inclusive, above.
(g) Without limiting Sections 5, 7 and 13 of this Agreement,
if the transactions contemplated hereby are not consummated by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed hereunder or to fulfill any condition of
your obligations hereunder, the Company will reimburse you for all
out-of-pocket expenses (including fees and disbursements of your counsel)
incurred by you in connection with the Exchange Offer.
10. Conditions of Dealer Manager's Obligations. Your obligations as
provided herein shall be subject at all times on and prior to the Closing Date
to the accuracy of the representations and warranties of the Company herein,
to the accuracy of the statements of officers of the Company made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
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(a) The Registration Statement shall have been filed prior
to the Commencement Date and no stop order refusing the effectiveness thereof
shall have been issued and the Registration Statement shall become effective
prior to the Expiration Date and no stop order suspending the effectiveness
thereof shall have been issued and no proceedings for either purpose shall
have been initiated or, to the knowledge of the Company or you, threatened by
the Commission, and any request of the Commission for additional information
(to be included in the Registration Statement, the Prospectus, any
Incorporated Document, or other Exchange Offer Materials or otherwise) shall
have been complied with to the reasonable satisfaction of your counsel.
(b) After execution and delivery of this Agreement and prior
to the Closing Date there shall not have occurred from that described in the
Prospectus (a) any adverse change or development in the condition (financial
or otherwise), earnings, operations, business or business prospects of the
Company and its subsidiaries considered as one enterprise, (b) any obligation,
direct or contingent, incurred by the Company or its subsidiaries, except
obligations incurred in the ordinary course of business, (c) any change in the
capital stock or outstanding indebtedness of the Company, (d) any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company; or (e) any loss or damage (whether or not insured) to the property of
the Company or any of its subsidiaries which has been sustained or will have
been sustained that either individually or in the aggregate, in the Dealer
Manager's reasonable judgment, are material and adverse and that makes it, in
the Dealer Manager's judgment impracticable to recommend that holders of
Debentures participate in the Exchange Offer on the terms and in the manner
contemplated in the Registration Statement.
(c) All corporate proceedings and other legal matters in
connection with this Agreement, the Registration Statement, the Prospectus,
other Exchange Offer Materials or otherwise, and the registration,
authorization, issue, and delivery of the Exchange Notes issuable in
accordance with the Exchange Offer, shall have been reasonably satisfactory to
your counsel, and such counsel shall have been furnished with such papers and
information as they may reasonably have requested to enable them to pass upon
the matters referred to in this Section.
(d) You shall have received the opinion of Xxxxx & Xxxxxxx,
counsel for the Company, dated the Closing Date, addressed to you to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the state of Idaho;
(ii) The Company has the corporate power and corporate
authority to enter into this Agreement, the Exchange Agent
Agreement, the Information Agent Agreement, and the Indenture
under which the Exchange Notes will be issued pursuant to the
Exchange Offer;
(iii) This Agreement, the performance by the Company of
its
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obligations hereunder, the Exchange Offer, the issuance and
delivery by the Company of the Exchange Notes pursuant to the
Indenture and consummation of the Exchange Offer have been duly
authorized by all necessary corporate action on the part of the
Company; this Agreement has been duly executed and delivered by
the Company;
(iv) The Exchange Agent Agreement and the Information
Agent Agreement have been duly authorized, executed and
delivered by the Company;
(v) The Company is not, or after giving effect to the
Exchange Offer, will not be, directly or indirectly
"controlled" by an "investment company," as such terms are
defined in the 1940 Act;
(vi) The Registration Statement has been filed under
the Securities Act prior to the Commencement Date and, to such
counsel's knowledge, no refusal order preventing effectiveness,
and after effectiveness, no stop order suspending the
effectiveness, of the Registration Statement has been issued
and to such counsel's knowledge, no proceedings for that
purpose have been instituted or are pending or threatened under
the Securities Act;
(vii) The Registration Statement and the Prospectus,
and each amendment or supplement thereto (other than the
financial statements, including supporting schedules, and
financial data derived therefrom as to which such counsel need
express no opinion), as of the effective date of the
Registration Statement, complied as to form in all material
respects with the requirements of the Securities Act and the
applicable Rules and Regulations thereunder;
(viii) The Schedule TO, and each amendment or supplement
thereto, and the documents required by Item 12 thereof (other
than the financial statements, including supporting schedules,
and the financial data derived therefrom as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Exchange Act and
the Rules and Regulations thereunder;
(ix) The information in the Prospectus under the
captions "The Exchange Offer," "Description of the Debentures,"
"Description of Exchange Notes" and "Description of the Capital
Stock," insofar as such statements purport to constitute a
summary of the legal matters, documents or proceedings referred
to therein, fairly summarize in all material respects the
matters referred to therein;
(x) The statements in the Prospectus under the
caption "United States Federal Income Tax Considerations," in
so far as they purport to describe the provisions of the laws
referred to therein, fairly summarize such laws in all material
respects;
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(xi) The execution and delivery by the Company of, and
the performance by the Company of its obligations under this
Agreement, the Exchange Offer, the issuance and delivery by the
Company of the Exchange Notes pursuant to the Exchange Offer
and consummation of the Exchange Offer, and the fulfillment of
the terms hereof and thereof will not, to such counsel's
knowledge, result in a material breach or violation of any of
the terms and provisions of, or constitute a default under any
applicable U.S. federal or state statute, rule or regulation
or, to such counsel's knowledge, any order, writ or decree of
any U.S. federal or state court, government or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or over any of their properties or operations;
provided, however, that no opinion need be rendered concerning
state securities or Blue Sky laws;
(xii) No consent, approval, authorization, permit or
order of or qualification with any U.S. federal or state court,
government or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries, or over any of
their properties or operations, is necessary in connection with
the consummation by the Company of its obligations under this
Agreement, the Exchange Offer, the issuance and delivery of the
Exchange Notes pursuant to the Exchange Offer and the
consummation of the Exchange Offer, except such as have been
obtained under the Securities Act or Exchange Act or such as
may be required under state or other securities or Blue Sky
laws or as contemplated by such agreements;
(xiii) The Indenture has been duly authorized, executed
and delivered by the Company and assuming due authorization,
execution and delivery of the Indenture by the Trustee,
constitutes a valid and binding agreement of the Company
enforceable in accordance with its terms and the Indenture has
been duly qualified under the TIA;
(xiv) The Exchange Notes when executed and
authenticated in accordance with the provisions of the
Indenture, assuming due authorization, execution and delivery
of the Indenture by the Trustee, and delivered in accordance
with the terms of the Exchange Offer, will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Company enforceable in accordance with their
terms; and the Exchange Notes conform in all material respects
to the description contained in the Registration Statement and
Prospectus;
(xv) The Shares issuable upon conversion of the
Exchange Notes have been duly authorized and reserved for the
issuance and delivery and when issued in accordance with the
terms of the Exchange Notes, will be validly issued, fully
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paid and non-assessable, and the issuance of such Shares is not
subject to any preemptive or similar rights under the Company's
certificate of incorporation, by-laws or the Idaho Business
Corporation Act;
(xvi) The Company has the corporate power and corporate
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus;
(xvii) The Company is duly qualified to do business as a
foreign corporation and is in good standing in each
jurisdiction in which it does business;
(xviii)The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus as of
the dates stated therein;
(xix) Each of the Incorporated Documents (other than
the financial statements, including supporting schedules, and
the financial data derived therefrom as to which such counsel
need express no opinion) complied when filed pursuant to the
Exchange Act and the applicable Rules and Regulations of the
Commission thereunder as to form in all material respects with
the requirements of the Securities Act and the Rules and
Regulations and the Exchange Act and the applicable Rules and
Regulations of the Commission thereunder;
(xx) To such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened against the
Company or any of its subsidiaries of a character required to
be disclosed in the Registration Statement, the Prospectus or
any Incorporated Document by the Securities Act or the Rules
and Regulations thereunder or by the Exchange Act or the
applicable Rules and Regulations of the Commission thereunder,
other than those described therein;
(xxi) To such counsel's knowledge, neither the Company
nor any of its subsidiaries is presently (a) in material
violation of its respective charter or bylaws, or (b) in
material breach of any applicable U.S. federal or state
statute, rule or regulation or, any order, writ or decree of
any U.S. federal or state court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries, or over any of their properties or operations;
and
(xxii) The execution and delivery by the Company of, and
the performance by the Company of its obligations under this
Agreement, the Exchange Offer, the issuance and delivery by the
Company of the Exchange Notes pursuant to the Exchange Offer
and consummation of the Exchange Offer, and the fulfillment of
the terms hereof and thereof will not, to such counsel's
knowledge, result in any violation of the Company's charter or
bylaws.
(e) You shall have received the opinion of Xxxxxxx X. Xxxx,
counsel for the
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Company, dated the Closing Date, addressed to you to the effect that:
(i) To such counsel's knowledge, after due inquiry,
the Company has not failed to obtain any license, claim,
permit, franchise or other administrative or governmental
authorization necessary to the ownership or lease of its
properties and assets or to the conduct of its business as it
is presently conducted, which failure to obtain would,
individually or in the aggregate, have a Material Adverse
Effect, or which might, if determined adversely to the Company,
materially and adversely affect the execution, delivery or
performance by the Company of this Agreement, and all such
licenses, claims, permits, franchises or other administrative
or governmental authorizations which are so required are valid
and subsisting and in good standing;
(ii) To such counsel's knowledge, after due inquiry,
the Company and each of Coeur Rochester Inc., Coeur Silver
Valley Inc., and Coeur Alaska Inc. (each a "Domestic
Subsidiary" and together, the "Domestic Subsidiaries") holds
freehold title, mining leases, mining claims or other
conventional proprietary interests or rights recognized in the
relevant jurisdiction in which each property described in the
Prospectus is located, in the ore bodies and mineral
inventories described in the Prospectus (and all properties
respectively relating thereto) under valid, subsisting and
enforceable title documents, contracts, leases, licenses of
occupation, mining concessions, permits, or other recognized
and enforceable instruments and documents, sufficient to permit
the Company or each of its subsidiaries, as the case may be, to
explore for, extract, exploit, remove, process and refine the
minerals relating thereto, except where the failure to so hold
such interests or rights would not have a Material Adverse
Effect. In addition, to such counsel's knowledge, after due
inquiry, either the Company or each of its subsidiaries has all
necessary surface rights, water rights and rights in water,
rights of way, licenses, easement, ingress, egress and access
rights, and all other necessary rights and interests granting
the Company or any of its subsidiaries, as the case may be, the
rights and ability to explore for, mine, extract, and remove
the minerals derived from the ore bodies and mineral
inventories described in the Prospectus and to transport for
refinement or market or distribute the ore and metals produced,
all as referred to in the Prospectus, with only such exceptions
as are described in the Prospectus or as do not have a Material
Adverse Effect, and each of the aforementioned interests and
rights is currently in good standing except for those interests
and claims which, if not kept in good standing, would not have
a Material Adverse Effect;
(iii) Each of the Company's Domestic Subsidiaries has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation, and has the corporate power to own, lease and
operate its properties and to conduct its business as described
in the Prospectus, and is qualified to do business as a foreign
corporation and is in good
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standing in each jurisdiction, if any, in which the ownership
and leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so
qualified or be in good standing would not have a Material
Adverse Effect;
(iv) All issued and outstanding shares of capital
stock of each of the Company's Domestic Subsidiaries have been
duly authorized and validly issued and are fully paid and
nonassessable and, to such counsel's knowledge, have not been
issued in violation of or subject to any preemptive right,
co-sale right, registration right, right of first refusal or
other similar right and, except as disclosed in the
Registration Statement and Exchange Offer Materials, are owned
by the Company directly or indirectly through one or more
subsidiaries of the Company, free and clear of any pledge,
lien, security interest, encumbrance, claim or equitable
interest (other than such preemptive rights or other rights to
subscribe for or purchase securities as were fully complied
with or expressly waived or with respect to the violation of
which the right to make a claim is barred by the applicable
statute of limitations); and,
(v) Except as disclosed in the Prospectus and except
as would not, singly or in the aggregate, result in a Material
Adverse Effect, (i) to such counsel's knowledge, after due
inquiry, neither the Company nor any of its Domestic
Subsidiaries is in violation of or has liability under any
federal, state, local, municipal or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials"), to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials, or to the
restoration or reclamation of or compensation for natural
resources (collectively, "Environmental Laws"), (ii) the
Company and each of its Domestic Subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of it's Domestic
Subsidiaries and (iv) to such counsel's knowledge, after due
inquiry, there are no events or circumstances that might
reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or
affecting the Company or any of its
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Domestic Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(f) You shall have received opinions substantially in the
form below for each of CDE Fachinal Ltd., Compania Minera CDE Petorca, and
Empressa Minera Manquirie S.R.L. (each a "Foreign Subsidiary" and together,
the "Foreign Subsidiaries"), opinions customary to such foreign jurisdiction
of incorporation of each Foreign Subsidiary of foreign counsel satisfactory to
you, addressed to you and to the effect that:
(i) Each of the Company's Foreign Subsidiaries has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation, and has the corporate power to own, lease and
operate its properties and to conduct its business as described
in the Prospectus, and is qualified to do business as a foreign
corporation and is in good standing in each jurisdiction, if
any, in which the ownership and leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified or be in good standing
would not have a Material Adverse Effect;
(ii) All issued and outstanding shares of capital
stock of each of the Company's Foreign Subsidiaries have been
duly authorized and validly issued and are fully paid and
nonassessable and, to such counsel's knowledge, have not been
issued in violation of or subject to any preemptive right,
co-sale right, registration right, right of first refusal or
other similar right and, except as disclosed in the
Registration Statement and Exchange Offer Materials, are owned
by the Company directly or indirectly through one or more
subsidiaries of the Company, free and clear of any pledge,
lien, security interest, encumbrance, claim or equitable
interest (other than such preemptive rights or other rights to
subscribe for or purchase securities as were fully complied
with or expressly waived or with respect to the violation of
which the right to make a claim is barred by the applicable
statute of limitations);
(iii) To such counsel's knowledge, after due inquiry,
each of the Company's Foreign Subsidiaries has not failed to
obtain, any license, claim, permit, franchise or other
administrative or governmental authorization necessary to the
ownership or lease of its properties and assets or to the
conduct of its business as it is presently conducted, which
failure to obtain would, individually or in the aggregate, have
a Material Adverse Effect, or which might, if determined
adversely to the Company, materially and adversely affect the
execution, delivery or performance by the Company of this
Agreement, and all such licenses, claims, permits, franchises
or other administrative or governmental authorizations which
are so required are valid and subsisting and in good standing;
(iv) To such counsel's knowledge, after due inquiry,
each of the
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Company's Foreign Subsidiaries holds freehold title, mining
leases, mining claims or other conventional proprietary
interests or rights recognized in the relevant jurisdiction in
which each property described in the Prospectus is located, in
the ore bodies and mineral inventories described in the
Prospectus (and all properties respectively relating thereto)
under valid, subsisting and enforceable title documents,
contracts, leases, licenses of occupation, mining concessions,
permits, or other recognized and enforceable instruments and
documents, sufficient to permit the Company or any of its
subsidiaries, as the case may be, to explore for, extract,
exploit, and remove, process and refine the minerals relating
thereto, except where the failure to so hold such interests or
rights would not have a Material Adverse Effect. In addition,
to such counsel's knowledge, after due inquiry, each of the
Company's Foreign Subsidiaries has all necessary surface
rights, water rights and rights in water, rights of way,
licenses, easements, ingress, egress and access rights, and all
other necessary rights and interests granting the relevant
Foreign Subsidiaries, as the case may be, the rights and
ability to explore for, mine, extract, and remove the minerals
derived from the ore bodies and mineral inventories described
in the Prospectus and to transport for refinement or market or
distribute the ore and metals produced, all as referred to in
the Prospectus, with only such exceptions as are described in
the Prospectus or as do not have a Material Adverse Effect, and
each of the aforementioned interests and rights is currently in
good standing except for those interests and claims which, if
not kept in good standing, would not have a Material Adverse
Effect; and,
(v) Except as disclosed in the Prospectus and except
as would not, singly or in the aggregate, result in a Material
Adverse Effect, (i) to such counsel's knowledge, after due
inquiry, neither the Company nor any of its Foreign
Subsidiaries is in violation of or has liability under any
federal, state, local, municipal or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials"), to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials, or to the
restoration or reclamation of or compensation for natural
resources (collectively, "Environmental Laws"), (ii) the
Company and each of its Foreign Subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
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Environmental Law against the Company or any of its Foreign
Subsidiaries and (iv) to such counsel's knowledge, after due
inquiry, there are no events or circumstances that might
reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or
affecting the Company or any of its Foreign Subsidiaries
relating to Hazardous Materials or any Environmental Laws.
In addition to its opinions set forth above, Xxxxx & Lardner
shall provide a statement to the effect that nothing has come to such
counsel's attention that causes it to believe that the Registration Statement
and other Exchange Offer Materials (other than the financial statements and
notes thereto and supporting schedules and other financial and statistical
data, set forth therein or omitted therefrom, as to which no advice is given),
at the time the Registration Statement was declared effective by the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus and Exchange Offer
Materials (other than the financial statements and notes thereto and
supporting schedules and other financial and statistical data, set forth
therein or omitted therefrom, as to which no advice is given), as of its date
and at all times subsequent to the effectiveness and up to and on the Closing
Date included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. With respect
to such statement, such counsel may state that its belief is based upon
procedures set forth therein, but it is without independent check or
verification except as specified therein.
The opinions set forth above that any document is valid,
binding or enforceable according to its terms are qualified as to:
(i) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium
or other similar laws relating to or affecting the rights and
remedies of creditors generally;
(ii) rights to indemnification and contribution which
may be limited by applicable law or equitable principles; and
(iii) general principles of equity, including, without
limitation, the possible unavailability of specific performance
or injunctive relief, and limitations or rights of
acceleration, regardless of whether enforceability is
considered in a proceeding at law or in equity.
Moreover, such counsel expresses no opinion as to the
validity, binding effect or enforceability of any provisions of the Indenture
purporting to impose penalties or any increase in interest rate to the extent
they constitute a penalty or are otherwise contrary to public policy.
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The foregoing opinions of such counsel shall be limited
to the laws of the United States of America, the State of Idaho, the State of
New York (but only with respect to paragraphs 10(d)(x) and 10(d)(xi) and only
insofar as the opinions set forth in (xi) and (xii) related to validity,
binding effect and enforceability of the agreements referred to therein) and
the Idaho Business Corporation Act as such laws exist on the date such opinion
is delivered.
(g) Counsel rendering the foregoing opinions may rely as to
questions of law not involving the laws of the United States of America or the
State of Idaho upon opinions of local counsel, and as to questions of fact
upon representations or certifications of officers of the Company, and of
government officials, in which case their opinion is to state that they are so
relying and that they have no knowledge of any material misstatement or
inaccuracy in any such opinion, representation or certificate. Copies of any
opinion, representation or certificate so relied upon shall be delivered to
you, as Dealer Manager, and to your counsel.
(h) You shall have received on the Closing Date an opinion
of Shearman & Sterling, in form and substance satisfactory to you, with
respect to the sufficiency of all such corporate proceedings and other legal
matters relating to this Agreement and the transactions contemplated hereby as
you may reasonably require, and the Company shall have furnished to such
counsel such documents as they may have requested for the purpose of enabling
them to pass upon such matters.
(i) At the time of the execution of this Agreement, you
shall have received from Ernst & Young LLP, a letter dated such date, in form
and substance satisfactory to you containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information for
the fiscal years prior to 1999 contained in the Prospectus. Additionally, you
shall have received from Xxxxxx Xxxxxxxx, LLP, a letter dated at the time of
execution of this Agreement, in form and substance satisfactory to you
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information for the fiscal years 1999 through
2001 contained in the Prospectus.
(j) You shall have received by or on the Closing Date, a
comfort letter, dated as of the closing (or one business day prior thereto) as
the case may be, from Ernst & Young LLP and Xxxxxx Xxxxxxxx LLP addressed to
you substantially in the form of that letter dated June ____, 2001, which
shall reaffirm the statements made in the letters referenced in (i) above.
(k) You shall have received a certificate of the Company,
dated as of the Closing Date, signed by the Chief Executive Officer and Chief
Financial Officer of the Company, certifying that, and you shall be satisfied
that:
(i) The representations and warranties of the Company
in this Agreement are true and correct in all material
respects, as if made on and as of the Closing Date or such
other date as of which any representation speaks, as the case
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may be, and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date, as the case may be;
(ii) No stop order refusing or suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
pending or threatened under the Securities Act;
(iii) When the Registration Statement became effective
and at all times subsequent thereto up to the date of such
certificate, the Registration Statement and the Prospectus, and
any amendments or supplements thereto, and the Incorporated
Documents, when such Incorporated Documents became effective or
were filed with the Commission, contained all material
information required to be included therein by the Securities
Act and the Rules and Regulations thereunder or the Exchange
Act and the applicable Rules and Regulations of the Commission
thereunder, as the case may be, and in all material respects
conformed to the requirements of the Securities Act and the
Rules and Regulations thereunder or the Exchange Act and the
applicable Rules and Regulations of the Commission thereunder,
as the case may be; the Registration Statement, and any
amendment or supplement thereto, did not and does not include
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; the Prospectus, and
any amendment or supplement thereto, did not and does not
include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; and since the effective date of the Registration
Statement, there has occurred no event required to be set forth
in an amended or supplemented Prospectus which has not been so
set forth; and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus and up to the date of such certificate, and except
as disclosed therein, there has not been (a) any material
adverse change in the condition (financial or otherwise),
earnings, operations, business or business prospects of the
Company and its subsidiaries considered as one enterprise, (b)
any transaction that is material to the Company and its
subsidiaries considered as one enterprise, except transactions
entered into in the ordinary course of business, (c) any
obligation, direct or contingent, that is material to the
Company and its subsidiaries considered as one enterprise,
incurred by the Company or its subsidiaries, except obligations
incurred in the ordinary course of business, (d) any change in
the capital stock or outstanding indebtedness of the Company
that is material to the Company and its subsidiaries considered
as one enterprise, (e) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company, or
(f) any loss or damage (whether or not insured) to the property
of the Company or any of its subsidiaries which has been
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sustained or will have been sustained and which has a Material
Adverse Effect or a material adverse effect on the ability of
the Company to perform its obligations under the Exchange Offer
or consummate the Exchange Offer.
(l) The Company shall have furnished to you such further
certificates and documents as you shall reasonably request (including
certificates of officers of the Company) as to the accuracy of the
representations and warranties of the Company herein, as to the performance by
the Company of its obligations hereunder and as to the other conditions
concurrent and precedent to your obligations hereunder.
(m) The NASD shall have confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the terms and
arrangements in connection with the offering of the Securities.
(n) The Registration Rights Agreement shall be executed and
delivered by the Company on or prior to the Closing Date.
All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory to your counsel. The Company will furnish you with such number of
conformed copies of such opinions, certificates, letters and documents, as you
shall reasonably request.
11. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold you harmless
against any losses, claims, damages or liabilities, joint or several, to which
you may become subject under the Securities Act, the Exchange Act or
otherwise, specifically including, but not limited to, losses, claims, damages
or liabilities (or actions in respect thereof) arising out of or based upon
(i) any breach of any representation, warranty, agreement or covenant of the
Company herein contained, (ii) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Schedule TO or any Exchange Offer Materials, or any amendments or supplements
thereto, including any Incorporated Document, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (iii) any untrue
statement or alleged untrue statement of any material fact contained in any
Prospectus or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse you for any legal or other expenses
reasonably incurred by you in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, the Prospectus, the Schedule TO, any other
Exchange Offer Materials, or any amendment or supplement thereto made in
reliance upon and in conformity with written information furnished to the
Company by
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you expressly for use in the Registration Statement, the Prospectus, the
Schedule TO or any other Exchange Offer Materials or any amendment or
supplement thereto or in the preparation thereof.
The indemnity agreement in this Section 11(a) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, you and
your affiliates and the partners, directors, officers, employees and agents of
you and your affiliates, and each person or entity, if any, who controls or is
under common control with, you within the meaning of the Securities Act or the
Exchange Act. This indemnity agreement shall be in addition to any
liabilities, which the Company may otherwise have.
(b) You agree to indemnify and hold harmless the Company
against any losses, claims, damages or liabilities, joint or several, to which
the Company may become subject under the Securities Act, the Exchange Act or
otherwise, specifically including, but not limited to, losses, claims, damages
or liabilities (or actions in respect thereof) arising out of or based upon
(i) any breach of any representation, warranty, agreement or covenant of yours
herein contained, (ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Schedule TO or any
Exchange Offer Materials, or any amendments or supplements thereto, including
any Incorporated Document, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (iii) any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus or any
amendment or supplement thereto, or the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, in the case
of subparagraphs (ii) and (iii) of this Section 11(b) to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon, and in conformity
with, written information furnished to the Company by you specifically for use
in the Registration Statement, the Prospectus, the Schedule TO, any other
Exchange Offer Materials or any amendment or supplement thereto or in the
preparation thereof, and you agree to reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action.
The indemnity agreement in this Section 11(b) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, each
officer of the Company who signed the Registration Statement and each director
of the Company, and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act. This indemnity agreement
shall be in addition to any liabilities, which you may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 11 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 11, notify the indemnifying party in
writing of the commencement thereof but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified
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party otherwise than under this Section 11. In case any such action is brought
against any indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it shall elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 11 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with appropriate local counsel) approved by the
indemnifying party representing all the indemnified parties under Section
11(a) or 11(b) hereof who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the actions or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party. In no event shall any indemnifying party be liable in
respect of any amounts paid in settlement of any action unless the
indemnifying party shall have approved the terms of such settlement; provided
that such consent shall not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnification could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on all claims that are the subject matter of such proceeding.
(d) In order to provide for just and equitable contribution
in any action in which a claim for indemnification is made pursuant to this
Section 11 but it is judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact that this Section 11
provides for indemnification in such case, all the parties hereto shall
contribute to the aggregate losses, claims, damages or liabilities to which
they may be subject (after contribution from others) in such proportion so
that you are responsible for the portion represented by the percentage that
the maximum Dealer Manager's fee payable to the Dealer Manager pursuant to
Section 6 hereof bears to the value of the maximum amount of Exchange Notes
issuable pursuant to the Exchange Offer, and the Company is responsible for
the remaining portion, provided, however, that (i) you
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shall not be required to contribute any amount in excess of the amount by
which the fee paid to you pursuant to Section 6 hereof exceeds the amount of
damages which you have been otherwise required to pay and (ii) no person
guilty of a fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who
is not guilty of such fraudulent misrepresentation. The contribution agreement
in this Section 11(d) shall extend upon the same terms and conditions to, and
shall inure to the benefit of, each person, if any, who controls you or the
Company within the meaning of the Securities Act or the Exchange Act and each
officer of the Company who signed the Registration Statement and each director
of the Company.
(e) The parties to this Agreement hereby acknowledge that
they are sophisticated business persons who were represented by counsel during
the negotiations regarding the provisions hereof including, without
limitation, the provisions of this Section 11, and are fully informed
regarding said provisions. They further acknowledge that the provisions of
this Section 11 fairly allocate the risks in light of the ability of the
parties to investigate the Company and its business in order to assure that
adequate disclosure is made in the Registration Statement, the Schedule TO,
any Exchange Offering Materials and the Prospectus as required by the
Securities Act and the Exchange Act.
12. Representations, Warranties, Covenants and Agreements to
Survive Delivery.
All representations, warranties, covenants and agreements of
the Company and you herein or in certificates delivered pursuant hereto, and
the indemnity and contribution agreements contained in Section 11 hereof shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of you or any person controlling you within the meaning
of the Securities Act or the Exchange Act, or by or on behalf of the Company
or any of its officers, directors or controlling persons within the meaning of
the Securities Act or the Exchange Act, and shall survive the completion of
the Exchange Offer or termination of this Agreement.
13. Termination.
(a) This Agreement shall terminate upon the earliest to
occur of (i) thirty days after the Expiration Date, (ii) any of the conditions
specified in Section 10 has not been fulfilled as of any date such condition
is required to be fulfilled pursuant to Section 10 (and the Dealer Manager
shall have notified the Company thereof), (iii) the date on which the Company
terminates or withdraws the Exchange Offer for any reason, or (iv) any
modification to the business terms of the Exchange Offer in the Company's sole
and absolute discretion that results in the Dealer Manager withdrawing
pursuant to Section 5 hereof, (the earliest to occur of clauses (i), (ii),
(iii) or (iv) being referred to as the "Termination Date").
(b) Notwithstanding termination of this Agreement pursuant
to subsection (a) above, the obligations of the parties pursuant to Sections
6, 7 and 11 shall survive any termination of this Agreement.
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If you elect to terminate this Agreement as provided in this
Section 13, you shall promptly notify the Company by telephone, telecopy or
telegram, in each case confirmed by letter.
14. Notices. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing and if sent to you
shall be mailed, delivered, or telecopied (and confirmed by letter) to you c/x
Xxxxxxxxx Xxxxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, telecopier number (000) 000-0000, Attention: General
Counsel; if sent to the Company, such notice shall be mailed, delivered,
telegraphed (and confirmed by letter) or telecopied (and confirmed by letter)
to Coeur d'Xxxxx Xxxxx Corporation, Attention: Chief Financial Officer, with a
copy to Xxxxx & Xxxxxxx, 0000 X Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, XX 00000.
Attention: Xxxxxx X. Xxxx, Esq.
15. Parties. This Agreement shall inure to the benefit of and be
binding upon the Dealer Manager and the Company and their respective
executors, administrators, successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person or entity, other than the parties hereto and their respective
executors, administrators, successors and assigns, and the controlling persons
within the meaning of the Securities Act or the Exchange Act, officers and
directors referred to in Section 11 hereof, any legal or equitable right,
remedy or claim in respect of this Agreement or any provisions herein
contained. This Agreement, and all conditions and provisions hereof, is
intended to be and is for the sole and exclusive benefit of the parties hereto
and their respective executors, administrators, successors and assigns and
said controlling persons and said officers and directors, and for the benefit
of no other person or entity. No Holder of Debentures receiving Exchange Notes
upon exchange of such Debentures shall be construed a successor or assign by
reason merely of such exchange.
16. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
17. Counterparts. This Agreement may be signed in several
counterparts, each of which will constitute an original.
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EXHIBIT 1(a)
Please indicate your willingness to act as Dealer Manager on the terms set
forth herein and your acceptance of the foregoing provisions by signing in the
space provided below for that purpose and returning to us a copy of this
letter, whereupon this letter and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
COEUR D'XXXXX XXXXX CORPORATION
By
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
Accepted as of the date first above written:
XXXXXXXXX XXXXXXXX, INC.
By
---------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
#600962
