EXHIBIT 10.1
HOMESTAKE MINING COMPANY
FIRST AMENDMENT AND WAIVER
TO CREDIT AGREEMENT
This FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this
"Amendment") is dated as of April 3, 1997 and entered into by and among
HOMESTAKE MINING COMPANY, a Delaware corporation ("Company"), HOMESTAKE MINING
COMPANY, a California corporation ("U.S. Borrower"), HOMESTAKE CANADA INC., an
Ontario corporation ("Canadian Borrower"), HOMESTAKE GOLD OF AUSTRALIA LIMITED,
a South Australian corporation ("Australian Borrower"), the financial
institutions listed on the signature pages hereof ("Lenders"), CANADIAN IMPERIAL
BANK OF COMMERCE ("Documentation Agent"), THE CHASE MANHATTAN BANK OF CANADA
("Canadian Administrative Agent"), CHASE SECURITIES AUSTRALIA LIMITED
("Australian Administrative Agent"), CHASE SECURITIES INC. ("Arranger"), and THE
CHASE MANHATTAN BANK ("Administrative Agent"), and is made with reference to
that certain Credit Agreement dated as of September 20, 1996 (the "Credit
Agreement"), by and among Guarantor, U.S. Borrower, Canadian Borrower,
Australian Borrower, Lenders, Documentation Agent, Canadian Administrative
Agent, Australian Administrative Agent, Arranger and Administrative Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit
Agreement to modify the restriction on certain Contingent Obligations contained
in subsection 6.4(vi) of the Credit Agreement as set forth below and to waive
any Events of Default arising prior to the date hereof as a result of such
restriction:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
Section 1. AMENDMENT TO THE CREDIT AGREEMENT
1.1 Amendment to Subsection 6.4(vi): Provisions Relating to
Contingent Obligations. Subsection 6.4(vi) of the Credit Agreement is hereby
amended by deleting the phrase at the end thereof reading "provided that the
notional amount of the aggregate contingent liability of Company and its
Subsidiaries under all such futures, options, contracts agreements and
arrangements does not at any time exceed $600,000,000; and" and substituting in
lieu thereof the following phrase: "and in the ordinary course of the Company's
and its Subsidiaries' business; and"
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Section 2. WAIVER TO THE CREDIT AGREEMENT
2.1 Waiver to Subsection 6.4(vi): Provisions Relating to
Contingent Obligations. Requisite Lenders hereby waive any Event of Default or
Potential Event of Default arising under subsection 6.4(vi) of the Credit
Agreement prior to the Effective Date (as defined below) to the extent caused by
Company and its Subsidiaries exceeding the $600,000,000 limitation contained
therein so long as Company and its Subsidiaries shall be in compliance with such
subsection after giving effect to the provisions of Section 1 of this Amendment.
Section 3. CONDITIONS TO EFFECTIVENESS
Sections 1 and 2 of this Amendment shall become effective only
upon the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Effective
Date"):
A. On or before the Effective Date, Company shall deliver
to Administrative Agent (with sufficient originally executed copies for each)
Lender and copies of this Amendment, executed by Company and each Borrower.
B. On or before the Effective Date, all corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
Section 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company and each
Borrower represents and warrants to each Lender that the following statements
are true, correct and complete:
A. Corporate Power and Authority. Company and each
Borrower has all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the Credit Agreement as amended by this Amendment (the
"Amended Agreement").
B. Authorization of Agreements. The execution and
delivery of this Amendment and the performance of the Amended Agreement have
been duly authorized by all necessary corporate action on the part of Company
and each Borrower.
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C. No Conflict. The execution and delivery by Company
and each Borrower of this Amendment and the performance by Company and each
Borrower of the Amended Agreement do not and will not (i) violate any provision
of any law or any governmental rule or regulation applicable to Company or any
of its Subsidiaries, the Certificate or Articles of Incorporation or Bylaws or
other charter documents of Company or any of its Subsidiaries or any order,
judgment or decree of any court or other agency of government binding on Company
or any of its Subsidiaries, (ii) conflict with, result in a material breach of
or constitute (with due notice or lapse of time or both) a material default
under any Contractual Obligation of Company or any of its Subsidiaries, (iii)
result in or require the creation or imposition of any Lien upon any of the
properties or assets of Company or any of its Subsidiaries (other than Liens
created under any of the Loan Documents in favor of Administrative Agent on
behalf of Lenders), or (iv) require any approval of stockholders or any approval
or consent of any Person under any Contractual Obligation of Company or any of
its Subsidiaries.
D. Binding Obligation. This Amendment and the Amended
Agreement have been duly executed and delivered by Company and are the legally
valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
E. Incorporation of Representations and Warranties From
Credit Agreement. The representations and warranties contained in Section 4 of
the Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
F. Absence of Default. Except for any Event of Default
and Potential Event of Default waived pursuant to Section 2 of this Amendment,
no event has occurred and is continuing or will result from the consummation of
the transactions contemplated by this Amendment that would constitute an Event
of Default or a Potential Event of Default.
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Section 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and
the Other Loan Documents.
(i) On and after the Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy
of Administrative Agent or any Lender under, the Credit Agreement or
any of the other Loan Documents.
B. Fees and Expenses. Company acknowledges that all
costs, fees and expenses as described in Section 10.2 of the Credit Agreement
incurred by Administrative Agent and its counsel with respect to this Amendment
and the documents and transactions contemplated hereby shall be for the account
of Company.
C. Headings. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
E. Counterparts; Effectiveness. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by Company, each Borrower
and Requisite Lenders and receipt by Company and Administrative Agent of written
or telephonic
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notification of such execution and authorization of delivery thereof and
compliance with the provisions of Section 3 to this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
Company:
HOMESTAKE MINING COMPANY
By:__________________________
Title:_______________________
U.S. Borrower:
HOMESTAKE MINING COMPANY OF CALIFORNIA
By:__________________________
Title:_______________________
Canadian Borrower:
HOMESTAKE CANADA INC.
By:__________________________
Title:_______________________
Australian Borrower:
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:__________________________
Title:_______________________
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LENDERS:
THE CHASE MANHATTAN BANK, individually, as a
U.S. Lender, as an Issuing Lender, and as
Administrative Agent
By:__________________________
Title:_______________________
THE CHASE MANHATTAN BANK, individually, as a
Canadian Lender, as an Issuing Lender, and as
Canadian Administrative Agent
By:___________________________
Title:________________________
THE CHASE MANHATTAN BANK, as an Australian
Lender
By:___________________________
Title:________________________
CANADIAN IMPERIAL BANK OF COMMERCE,
individually, as a U.S. Lender, and as
Documentation Agent
By:___________________________
Title:________________________
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CANADIAN IMPERIAL BANK OF COMMERCE, as a
Canadian Lender
By:____________________________
Title:_________________________
CIBC AUSTRALIA LIMITED, as an Australian
Lender
By:____________________________
Title:_________________________
BANK OF MONTREAL, as a U.S. Lender
By:____________________________
Title:_________________________
BANK OF MONTREAL, as a Canadian Lender
By:____________________________
Title:_________________________
THE CHASE MANHATTAN BANK, as an Australian
Lender (as fronting bank for Bank of Montreal)
By:____________________________
Title:_________________________
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XXX XXXX XX XXXX XXXXXX, as a U.S. Lender
By:____________________________
Title:_________________________
THE BANK OF NOVA SCOTIA, as a Canadian Lender
By:____________________________
Title:_________________________
THE BANK OF NOVA SCOTIA, as an Australian
Lender with respect to Letters of Credit and
Gold Loans
By:____________________________
Title:_________________________
THE CHASE MANHATTAN BANK, as an Australian
Lender (as fronting bank for The Bank of Nova
Scotia) with respect to Bank Xxxx Swap Rate
Loans and Eurodollar Rate Loans
By:____________________________
Title:_________________________
CITICORP USA, INC., as a U.S. Lender
By:____________________________
Title:_________________________
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CITIBANK CANADA, as a Canadian Lender
By:____________________________
Title:_________________________
CITIBANK LIMITED, as an Australian Lender
By:____________________________
Title:_________________________
CREDIT LYONNAIS, LOS ANGELES BRANCH, as a
U.S. Lender
By:____________________________
Title:_________________________
CREDIT LYONNAIS CANADA, as a Canadian Lender
By:____________________________
Title:_________________________
CREDIT LYONNAIS AUSTRALIA LIMITED, as an
Australian Lender
By:____________________________
Title:_________________________
X-0
XXXXXX XXXX, N.A. as a U.S. Lender
By:____________________________
Title:_________________________
MELLON BANK CANADA, as a Canadian Lender
By:____________________________
Title:_________________________
THE CHASE MANHATTAN BANK, as an Australian
Lender (as fronting bank for Mellon Bank,
N.A.)
By:___________________________
Title:________________________
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as a U.S. Lender
By:___________________________
Title:________________________
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X.X. XXXXXX CANADA, as a Canadian Lender
By:___________________________
Title:________________________
X.X. XXXXXX AUSTRALIA LIMITED, as an
Australia Lender
By:___________________________
Title:________________________
N M ROTHSCHILD & SONS LIMITED, as a U.S.
Lender
By:___________________________
Title:________________________
N M ROTHSCHILD & SONS LIMITED, as a Canadian
Lender
By:___________________________
Title:________________________
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N M ROTHSCHILD & SONS LIMITED, as an
Australian Lender
By:___________________________
Title:________________________
TORONTO DOMINION (TEXAS) as a U.S. Lender
By:___________________________
Title:________________________
THE TORONTO DOMINION BANK, as a Canadian
Lender
By:___________________________
Title:________________________
TORONTO DOMINION AUSTRALIA LIMITED
ACN 004 858 020, as an Australian Lender
By:___________________________
Title:________________________
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AUSTRALIAN ADMINISTRATIVE AGENT:
CHASE SECURITIES AUSTRALIA LIMITED,
as Australian Administrative Agent
By:___________________________
Title:________________________
ARRANGER:
CHASE SECURITIES INC., as Arranger
By:___________________________
Title:________________________
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