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[EXECUTION COPY]
FIRST AMENDMENT
TO
FEE CONSIGNMENT AGREEMENT
This FIRST AMENDMENT TO FEE CONSIGNMENT AGREEMENT, dated as of June 30,
1995 (this "Amendatory Agreement"), between HANDY & XXXXXX, a New York
corporation (the "Consignee") and THE BANK OF NOVA SCOTIA (the "Consignor").
W I T N E S S E T H:
WHEREAS, the Consignee and the Consignor are parties to a Fee Consignment
Agreement, dated as of September 28, 1994 (as amended or otherwise modified
prior to the date hereof, the "Existing Fee Consignment Agreement"); and
WHEREAS, the parties hereto have agreed, subject to the conditions and
terms hereinafter set forth, to amend the Existing Fee Consignment Agreement in
certain respects as herein provided (the Existing Fee Consignment Agreement, as
so amended by this Amendatory Agreement, being referred to as the "Fee
Consignment Agreement");
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"Amendatory Agreement" is defined in the preamble.
"Consignee" is defined in the preamble.
"Consignor" is defined in the preamble.
"Fee Consignment Agreement" is defined in the second
recital.
"Existing Fee Consignment Agreement" is defined in the first
recital.
"First Amendment Effective Date" is defined in Subpart 3.1.
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SUBPART 1.2. Other Definitions. Terms for which meanings are provided in
the Existing Fee Consignment Agreement are, unless otherwise defined herein or
the context otherwise requires, used in this Amendatory Agreement with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING FEE CONSIGNMENT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Fee Consignment Agreement is hereby amended in
accordance with this Part II; except as so amended, the Existing Fee Consignment
Agreement shall continue in full force and effect.
SUBPART 2.1. Amendment to Article I. Article I of the Existing Fee
Consignment Agreement is hereby amended in accordance with Subparts 2.1.1
through 2.1.3.
SUBPART 2.1.1. Section 1.1 of the Existing Fee Consignment Agreement is
hereby amended by inserting the following definition in such Section in the
appropriate alphabetical sequence:
"First Amendment" means the First Amendment, dated as of June 30, 1995, to
this Agreement between the Consignee and the Consignor.
SUBPART 2.1.2. Section 1.1 of the Existing Fee Consignment Agreement is
hereby further amended by
(a) amending the definition of "Plant" in its entirety to read as
follows:
"`Plant' means the Consignee's fabrication facility located at 0000
Xxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxx."; and
(b) amending the definition of "Commitment Amount" in its entirety
to read as follows:
"`Commitment Amount' means, on any day,
(a) with respect to gold, (i) 30,000 xxxx ounces of gold or,
if less, (ii) the maximum number of xxxx ounces of gold obtained by
dividing (A) $14,250,000 (or, if, on or prior to such day, the
Advance Commitment Amount is reduced pursuant to the terms of the
Dollar Supply Agreement, a Dollar amount equal to the product of (x)
the Advance Commitment Amount (after giving effect to any reduction
thereto on or prior to
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such day) and (y) 17.9810726%), by (B) $475 (rounded down to the
next whole number); and
(b) with respect to silver, (i) 10,000,000 xxxx ounces of
silver or, if less, (ii) the maximum number of xxxx ounces of silver
obtained by dividing (A) $65,000,000 (or, if, on or prior to such
day, the Advance Commitment Amount is reduced pursuant to the terms
of the Dollar Supply Agreement, a Dollar amount equal to the product
of (x) the Advance Commitment Amount (after giving effect to any
reduction thereto on or prior to such day) and (y) 82.0189274%), by
(B) $6.50 (rounded down to the next whole number);
as the amounts in clauses (a)(i) and (b)(i) above may be reduced from time
to time pursuant to Section 2.2 or as required in accordance with the
proviso contained in clause (b) of Section 2.4.2."
SUBPART 2.2. Amendment to Article II. Section 2.2.2 of the Existing Fee
Consignment Agreement is hereby amended by (i) deleting the percentage
"41.6749751%" in clause (a) of such Section and substituting the percentage
"17.9810726%" in place thereof, and (ii) deleting the percentage "58.3250249%"
in clause (b) of such Section, and substituting the percentage "82.0189274" in
place thereof.
SUBPART 2.3. Global Amendment to Fee Consignment Documents. The Existing
Fee Consignment Agreement and each other Fee Consignment Document is hereby
amended by deleting each reference to "the Plants", "each Plant", "either
Plant", "applicable Plant" and terms of a similar import and by inserting the
term "the Plant" in each case in place thereof, and the Existing Fee Consignment
Agreement and each other Fee Consignment Document is hereby amended mutatis
mutandis in order to give full effect to the amendments described in this
Subpart 2.3.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. First Amendment Effective Date. This Amendatory Agreement
shall become effective on July 6, 1995 (the "First Amendment Effective Date"),
but only if each of the conditions set forth in this Subpart 3.1 shall have been
satisfied on or prior to that date.
SUBPART 3.1.1. Execution of Counterparts. The Consignor shall have
received counterparts of this Amendatory Agreement, duly executed on behalf of
the Consignee and the Consignor.
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SUBPART 3.1.2. Execution of Consent. The Consignor shall have received
counterparts of the Consent, substantially in the form of Exhibit A hereto, duly
executed on behalf of each Supplier.
SUBPART 3.1.3. Legal Details, etc. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the Consignor and
its counsel. The Consignor and its counsel shall have received all information
and such counterpart originals or such certified or other copies or such
materials, as the Consignor or its counsel may reasonably request, and all legal
matters incident to the transactions contemplated by this Amendatory Agreement
shall be satisfactory to the Consignor and its counsel.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendatory Agreement to
any Part or Subpart are, unless otherwise specified or otherwise required by the
context, to such Part or Subpart of this Amendatory Agreement.
SUBPART 4.2. Fee Consignment Document Pursuant to Existing Fee Consignment
Agreement. This Amendatory Agreement is a Fee Consignment Document executed
pursuant to the Existing Fee Consignment Agreement and shall be construed,
administered and applied in accordance with all of the terms and provisions of
the Existing Fee Consignment Agreement.
SUBPART 4.3. Successors and Assigns. This Amendatory Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.4. Counterparts. This Amendatory Agreement may be executed by
the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 4.5. Representations, No Default, etc. As of the date of
effectiveness of this Amendatory Agreement, and after giving effect to the
amendments set forth above, the Consignee hereby represents and warrants that
(a) the representations and warranties set forth in Article VI of
the Existing Fee Consignment Agreement are true and correct in all
material respects (unless stated to relate solely to an earlier date, in
which case such representations and warranties were true and correct as of
such earlier date); and
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(b) after giving effect to this Amendatory Agreement, no Default has
occurred and is continuing.
SUBPART 4.6. Limited Waiver, etc. No amendment, waiver or approval by the
Consignor under this Amendatory Agreement shall, except as may be otherwise
stated in this Amendatory Agreement, be applicable to subsequent transactions.
No waiver or approval hereunder shall require any similar or dissimilar waiver
or approval to be granted after the date hereof, and except as expressly
modified by this Amendatory Agreement, the provisions of the Existing Fee
Consignment Agreement shall remain in full force and effect, without amendment
or other modification.
SUBPART 4.7. Governing Law. THIS AMENDATORY AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendatory
Agreement to be executed by their respective authorized officers as of the day
and year first above written.
HANDY & XXXXXX
By_________________________________________
Title:
THE BANK OF NOVA SCOTIA
By_________________________________________
Title:
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Exhibit A
CONSENT
Dated as of June 30, 1995
Reference is made to:
(i) the Short-Term Dollar Supply Agreement, dated as of September
28, 1994 (as amended or otherwise modified, the "Short-Term Dollar Supply
Agreement"), among The Bank of Nova Scotia, as the consignor (the
"Consignor"), certain commercial lending institutions (including the
undersigned) from time to time parties thereto (the "Suppliers"), The Bank
of Nova Scotia, Chemical Bank and The Bank of New York, as the co-agents
for the Suppliers (the "Co-Agents"), and The Bank of Nova Scotia, as the
administrative agent for the Suppliers (the "Administrative Agent");
(ii) the Dollar Supply Agreement, dated as of September 28, 1994 (as
amended or otherwise modified, the "Dollar Supply Agreement"), among the
Consignor, the Suppliers, the Co-Agents and the Administrative Agent;
(iii) the First Amendment, dated as of the date hereof ("Amendment
No. 1 to Short-Term Fee Consignment Agreement"), to the Short-Term Fee
Consignment Agreement, dated as of September 28, 1994, between Handy &
Xxxxxx, a New York corporation (the "Consignee"), and the Consignor; and
(iv) the First Amendment, dated as of the date hereof ("Amendment
No. 1 to Fee Consignment Agreement"), to the Fee Consignment Agreement,
dated as of September 28, 1994, between the Consignee and the Consignor.
The undersigned Supplier hereby consents to Amendment No. 1 to Short-Term
Fee Consignment Agreement and Amendment No. 1 to Fee Consignment Agreement
(collectively, the "Amendments") and, in accordance with Section 8.1 of each of
the Short-Term Dollar Supply Agreement and the Dollar Supply Agreement, hereby
consents to the Consignor executing and delivering a copy of each Amendment in
the form previously delivered to the undersigned Supplier. The undersigned
Supplier also authorizes and directs The Bank of Nova Scotia, in its capacity as
the Consignor and the Administrative Agent, to execute and deliver Uniform
Commercial Code termination statements
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and other instruments and documents as reasonably requested by the Consignee to
give effect to each Amendment.
__________________________________
[INSERT NAME OF SUPPLIER]
By_________________________________________
Title:
