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EXHIBIT 10.2.4
AMENDMENT NO. 4 AND WAIVER
AMENDMENT NO. 4 AND WAIVER (this "Amendment") dated as of March 26,
2001, among XX XXXXXX CORPORATION (the "Company"), a corporation organized under
the laws of the State of Colorado, the Lenders named on the signature pages
hereof, and BNP PARIBAS, as successor-in-interest to Banque Paribas, New York
Branch, in its capacity as agent for the Lenders (the "Agent").
WITNESSETH:
WHEREAS, the Company, the Lenders and the Agent have entered into the
Loan Agreement dated as of December 6, 1995, and amended as of April 8, 1998,
August 19, 1998 and July 8, 1999 (as amended, modified and supplemented from
time to time, the "Loan Agreement"), providing for certain Loans to be made to
the Company by the Lenders to finance the acquisition and construction of the
Project;
WHEREAS, Canyon Resources Corporation (the "Guarantor"), the Company
and the Agent have entered into the Guarantee, Equity Contribution and Pledge
Agreement dated as of December 6, 1995 and amended as of April 8, 1998, August
19, 1998 and July 8, 1999 (as amended, modified and supplemented from time to
time, the "Guarantee Agreement"), in connection with the Loan Agreement;
WHEREAS, the Company has requested that the Loan Agreement be further
amended and that certain matters be waived by the Lenders, subject and pursuant
to the terms and conditions of this Amendment and subject to the condition
precedent that Guarantor execute the Waiver attached hereto as Exhibit A;
NOW, THEREFORE, the Company, the Guarantor, the Lenders and the Agent
wish to amend the Loan Agreement in certain respects, and accordingly, the
parties hereto agree as follows:
Section 1. Definitions. Terms used but not defined herein shall have
the respective meanings ascribed to such terms in the Loan Agreement.
Section 2. Conditions Precedent. The agreements set forth in Sections 3
and 4 of this Amendment shall be subject to the satisfactory completion, in the
Agent's sole opinion, of the following conditions:
(a) The Company, the Guarantor and the Agent shall have
entered into a Waiver relating to the Guarantee Agreement substantially
in the form of Exhibit A hereto; and
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(b) No Event of Default, which is not otherwise being waived
by the terms hereof, under the Loan Agreement shall have occurred and
be continuing.
Section 3. Amendments. The Loan Agreement is amended as follows:
(a) The definition of "Principal Payment Date" in Section 1.01
of the Loan Agreement hereby is amended to read as follows:
"Principal Payment Date" shall mean the dates set
forth in Schedule II hereto.
(b) Section 2.08 of the Loan Agreement is replaced in its
entirety by the following:
2.08 Repayment of Loans. The Borrower hereby promises
to pay Principal to the Agent for the account of each Lender, in the
amounts and by the dates set forth in the amortization schedule
attached hereto as Schedule II, until the Loans have been paid in full.
The Company's last payment of Principal shall be accompanied by an
additional payment of One Hundred Fifty Thousand Dollars ($150,000.00),
as consideration for the Lenders consenting to the amendments to this
Agreement set forth in Amendment No. 4 and Waiver dated as of March 26,
2001, among the Borrower, the Lenders and the Agent.
(c) Schedule II to the Loan Agreement hereby is amended in its
entirety and replaced by the Schedule II set forth in Exhibit B to this
Amendment.
(d) Section 2.10(a) of the Loan Agreement hereby is amended as
follows:
(i) Replace the "30%" in line 3 with "50%"; and
(ii) Add the following sentence to the end of
Section 2.10(a): "The foregoing calculation shall be made prior to
Borrower's expenditure of Exploration Costs for drilling."
Section 4. Waiver. Subject to the satisfaction of the conditions
precedent specified in Section 2 above, but effective on and as of the date
hereof, the Lenders hereby waive: (i) the following Events of Default, and (ii)
the Company's compliance with the following requirements and obligations under
the Loan Agreement through November 30, 2002, or repayment in full of the Loans,
whichever first occurs:
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(a) Any Event of Default under Section 8.26 and compliance
with Section 8.26 of the Loan Agreement;
(b) Any Event of Default under Section 8.27 of the Loan
Agreement as a result of the Company's failure to maintain the required
Hedge Contract obligations; provided, however, that by not later than
April 30, 2001, the Company shall establish and maintain Hedge
Contracts on six (6) months' forecast gold production from the Project
on a rolling forward basis;
(c) Any Event of Default under Section 8.28 and compliance
with Section 8.28 of the Loan Agreement;
(d) Compliance with Sections 8.06, 8.12(b) and 8.13 of the
Loan Agreement; and
(e) Compliance with Section 8.01(e) of the Loan Agreement;
provided, however, that this waiver is limited to a 5 day extension of
the 90 day period referred to in line 2 of such Section.
Section 5. Documents Otherwise Unchanged. Except as herein provided,
the Loan Agreement shall remain unchanged and in full force and effect, and each
reference to the Loan Agreement shall be a reference to the Loan Agreement as
amended hereby and as the same may be further amended, supplemented and
otherwise modified and in effect from time to time.
Section 6. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be identical and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Amendment by signing any such counterpart.
Section 7. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
Section 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
"BORROWER"
XX XXXXXX CORPORATION
/s/ Xxxx X. Xxxxx
-----------------------------------
Xxxx X. Xxxxx
Vice President
"AGENT"
BNP PARIBAS, as agent for the Lenders
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice President
"LENDERS"
BNP PARIBAS
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Vice President
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President
BAYERISCHE HYPO-UND
VEREINSBANK AG, NEW YORK
BRANCH
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Managing Director
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Director
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NM ROTHSCHILD & SONS LIMITED
/s/ X. Xxxxxxx
-------------------------------------
X. Xxxxxxx
Director
/s/ X.X. Xxxx
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X.X. Xxxx
Assistant Director
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EXHIBIT A
to Amendment No. 4 and Waiver,
dated as of March 26, 2001
WAIVER
WAIVER (this "Waiver") dated as of March 26, 2001, among XX XXXXXX
CORPORATION (the "Company"), a corporation organized under the laws of the State
of Colorado, CANYON RESOURCES CORPORATION, a corporation organized under the
laws of the State of Delaware (the "Guarantor"), the Lenders named on the
signature pages hereof, and BNP PARIBAS, as successor-in-interest to Banque
Paribas, New York Branch, in its capacity as agent for the Lenders (the
"Agent").
WITNESSETH:
WHEREAS, the Company, the Lenders and the Agent have entered into the
Loan Agreement dated as of December 6, 1995, and amended as of April 8, 1998,
August 19, 1998 and July 8, 1999 (as amended, modified and supplemented from
time to time, the "Loan Agreement"), providing for certain Loans to be made to
the Company by the Lenders to finance the acquisition and construction of the
Project;
WHEREAS, the Guarantor, the Company and the Agent have entered into the
Guarantee, Equity Contribution and Pledge Agreement dated as of December 6, 1995
and amended as of April 8, 1998, August 19, 1998 and July 8, 1999 (as amended,
modified and supplemented from time to time, the "Guarantee Agreement"), in
connection with the Loan Agreement;
WHEREAS, the Company has requested that the Loan Agreement be amended
and that certain matters be waived by the Lenders in an amendment and waiver
agreement ("Amendment No. 4 and Waiver") among the Company, the Lenders and the
Agent dated as of March 26 2001;
WHEREAS, it is a condition precedent to the amendments contained in the
Amendment No. 4 and Waiver that this Waiver be executed.
NOW, THEREFORE, the Company, the Guarantor, the Lenders and the Agent
hereby agree as follows:
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Section 1. Definitions. Terms used but not defined herein shall have
the respective meanings ascribed to such terms in the Loan Agreement.
Section 2. Representations and Warranties. The Guarantor represents and
warrants to the Agent and the Lenders that each of the representations and
warranties set forth in Sections 3.01, 3.03, 3.04, 3.05, 3.06, 3.07 and 3.08 of
the Guarantee Agreement are true and complete on the date hereof as if made on
and as of the date hereof.
Section 3. Effectiveness. This Waiver shall become effective as of
March 26, 2001: (a) upon the execution and delivery of this Waiver by the
Company, the Guarantor, the Agent and each Lender, and (b) upon the execution
and delivery of the Amendment No. 4 and Waiver and the satisfaction of all
conditions specified therein.
Section 4. Waiver. Subject to the satisfaction of the conditions
precedent specified in Section 3 above, but effective on and as of the date
hereof, the Lenders hereby waive any Events of Default which have arisen as a
direct result of the Guarantor's failure to comply with the following provisions
of the Guarantee Agreement, and Lenders hereby waive Guarantor's compliance with
the following provisions of the Guarantee Agreement, through November 30, 2002,
or whenever the Loans have been repaid in full, whichever first occurs:
(a) Section 5.06; provided, however, that this waiver of
Section 5.06 is limited to a reduction of the $38,000,000 minimum Net
Tangible Worth amount in the third line of such Section to a minimum
Net Tangible Worth amount of $30,000,000;
(b) Section 5.07;
(c) Section 5.08: and
(d) Section 5.01(b); provided, however, that this waiver of
Section 5.01(b) is limited to a 5 day extension of the 90 day period in
line 1 of such Section.
Section 5. Documents Otherwise Unchanged. Except as herein provided,
the Guarantee Agreement shall remain unchanged and in full force and effect, and
each reference to the Guarantee Agreement shall be a reference, to the Guarantee
Agreement, as the same may be further amended, supplemented and otherwise
modified and in effect from time to time.
Section 6. Affirmation of Guarantee. The Guarantor affirms (i) that all
references in the Guarantee Agreement to the Loan Agreement (including amounts
from time to time owing to the Lenders or the Agent by the Borrower under the
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Loan Agreement) are to be construed as references to the Loan Agreement as
amended by the Amendment No. 4 and Waiver and (ii) that the Guarantor's
guarantee obligations under the Guarantee Agreement remain in full force and
effect.
Section 7. Counterparts. This Waiver may be executed in any number of
counterparts, each of which shall be identical and all of which, when taken
together, shall constitute one and the same instrument, and any of the parties
hereto may execute this Waiver by signing any such counterpart.
Section 8. Binding Effect. This Waiver shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
Section 9. Governing Law. This Waiver shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed as of the day and year first above written.
"BORROWER"
XX XXXXXX CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"AGENT"
BNP PARIBAS, as agent for the Lenders
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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"LENDERS"
BNP PARIBAS
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
NM ROTHSCHILD & SONS LIMITED
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"GUARANTOR"
CANYON RESOURCES CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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EXHIBIT B
to Amendment No. 4 and Waiver,
dated as of March 26, 2001
SCHEDULE II
AMORTIZATION SCHEDULE
Principal Payment Due Date
$242,500.00 April 30, 2001
$242,500.00 May 31, 2001
$275,000.00 June 30, 2001, and on or before
the end of each calendar month
thereafter until the Loans have been
repaid in full
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