1
CREDIT AGREEMENT
Dated as of March 31, 1997
Among
BATTLE MOUNTAIN GOLD COMPANY
and
BATTLE MOUNTAIN CANADA LTD.
as Borrowers
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as U.S. Administrative Agent
and
CITIBANK CANADA
as Canadian Administrative Agent
Co-Agents:
ROYAL BANK OF CANADA
THE BANK OF NOVA SCOTIA
CANADIAN IMPERIAL BANK OF COMMERCE
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . 34
Section 1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . 34
Section 1.04. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 1.05. Ratings . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 1.06. "Knowledge" and "Dispositions" . . . . . . . . . . . . . . . 35
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND DRAWINGS
Section 2.01. The Advances; Drawings . . . . . . . . . . . . . . . . . . . 35
Section 2.02. Making the Advances . . . . . . . . . . . . . . . . . . . . . 36
Section 2.03. Drawings of BA Obligations . . . . . . . . . . . . . . . . . 39
Section 2.04. Fees; Reduction of Commitments. . . . . . . . . . . . . . . . 42
Section 2.05. Repayment of Obligations . . . . . . . . . . . . . . . . . . 43
Section 2.06. Interest; Drawing Fees . . . . . . . . . . . . . . . . . . . 44
Section 2.07. Additional Interest on Eurodollar Rate Advances . . . . . . . 46
Section 2.08. Interest Rate Determination . . . . . . . . . . . . . . . . . 46
Section 2.09. Optional Prepayments . . . . . . . . . . . . . . . . . . . . 49
Section 2.10. Payments and Computations . . . . . . . . . . . . . . . . . . 51
Section 2.11. Increased Costs and Capital Requirements . . . . . . . . . . 53
Section 2.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 2.13. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . 59
Section 2.14. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 2.15. Conversion of U.S. Advances; Interest Periods . . . . . . . . 61
Section 2.16. Designation of Commitments. . . . . . . . . . . . . . . . . . 62
Section 2.17. Replacement of Bank . . . . . . . . . . . . . . . . . . . . . 63
Section 2.18. Lending Office. . . . . . . . . . . . . . . . . . . . . . . 64
Section 2.19. Renewal and Conversion of BA Obligations . . . . . . . . . . 64
Section 2.20. Canadian Borrower . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Condition Precedent to Initial Accommodations . . . . . . . . 69
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Section 3.02. Conditions Precedent to Each Accommodation . . . . . . . . . 71
Section 3.03. Determinations Under Section 3.01 . . . . . . . . . . . . . . 71
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers . . . . . . . 72
ARTICLE V
COVENANTS OF THE BORROWERS
Section 5.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . 78
Section 5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . 86
Section 5.03. Financial Covenants . . . . . . . . . . . . . . . . . . . . . 93
Section 5.04. Non-Wholly Owned Entities and Joint Ventures . . . . . . . . 94
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 95
Section 6.02 Actions in Respect of BA Obligations . . . . . . . . . . . . 98
ARTICLE VII
THE ADMINISTRATIVE AGENTS
Section 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . 99
Section 7.02. Administrative Agents' Reliance, Etc . . . . . . . . . . . . 100
Section 7.03. Citibank, Citibank Canada and Affiliates . . . . . . . . . . 100
Section 7.04. Bank Credit Decision . . . . . . . . . . . . . . . . . . . . 101
Section 7.05. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 101
Section 7.06. Successor Administrative Agents . . . . . . . . . . . . . . . 102
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . 102
Section 8.02. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . 104
Section 8.04. Expenses and Taxes; Compensation; INDEMNITY . . . . . . . . . 104
Section 8.05. Right of Set-Off. . . . . . . . . . . . . . . . . . . . . . . 106
Section 8.06. Limitation and Adjustment of Interest . . . . . . . . . . . . 106
Section 8.07. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . 108
Section 8.08. Assignments and Participations . . . . . . . . . . . . . . . 108
Section 8.09. Execution in Counterparts . . . . . . . . . . . . . . . . . . 112
Section 8.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 112
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Section 8.11. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . 112
Section 8.12. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . 113
Section 8.13. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 113
Section 8.14. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . 114
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EXHIBITS:
Exhibit A Form of U.S. Note
Exhibit B Form of Canadian Note
Exhibit C Form of Notice of U.S. Borrowing
Exhibit D Form of Notice of Canadian Borrowing
Exhibit E-1 Form of Opinion of U.S. Counsel to the Borrowers
Exhibit E-2 Form of Opinion of Canadian Counsel to the Borrowers
Exhibit E-3 Form of Opinion of General Counsel
Exhibit F Form of Opinion of U.S. Counsel to the U.S. Administrative Agent
Exhibit G Form of Opinion of Canadian Counsel to the Canadian Administrative Agent
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Guaranty
Exhibit J Form of Designation Notice
Exhibit K-1 Form of Citibank Canada Xxxx of Exchange
Exhibit K-2 Form of Royal Bank of Canada Xxxx of Exchange
Exhibit K-3 Form of General Xxxx of Exchange
Exhibit L Form of Notice of Drawing
Exhibit M-1 Form of U.S. Borrower Subordination Provisions
Exhibit M-2 Form of Canadian Borrower Subordination Provisions
SCHEDULES:
Schedule I Pricing Grid
Schedule II Information for Banks
Schedule III Litigation
Schedule IV Investments
Schedule V Debt
Schedule VI Inti Raymi Project Loans
Schedule VII Dividend Restricted Subsidiaries
Schedule VIII Permitted Investments Countries
Schedule IX Crown Jewel Investments
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CREDIT AGREEMENT
Dated as of March 31, 1997
Battle Mountain Gold Company, a Nevada corporation, and Battle Mountain
Canada Ltd., an Ontario corporation, the lenders party hereto, Citibank, N.A.,
as U.S. Administrative Agent hereunder, and Citibank Canada, as Canadian
Administrative Agent hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Accommodation" means (a) an Advance made by any Bank or (b) the
acceptance and purchase of Drafts or the purchase of BA Equivalent Notes, as
the case may be, by any Bank under this Agreement.
"Advance" means a U.S. Advance or a Canadian Advance.
"Adjusted CD Rate" means, for any Interest Period for each CD Rate Advance
comprising part of the same U.S. Borrowing, an interest rate per annum equal to
the sum of:
(a) the rate per annum obtained by dividing (i) the rate of
interest determined by the U.S. Administrative Agent to be the average
(rounded upward to the nearest whole multiple of 1/100 of 1% per annum if
such average is not such a multiple) of the consensus bid rate determined
by each of the U.S. Reference Banks for the bid rates per annum, at 9:00
A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period, of New York certificate of deposit
dealers of recognized standing selected by such Reference Bank for the
purchase at face value of certificates of deposit of such Reference Bank
in New York City in an amount substantially equal to such Reference Bank's
Advance comprising part of such Borrowing and with a maturity equal to
such Interest Period, by (ii) a percentage equal to 100% minus the
Adjusted CD Rate Reserve Percentage for such Interest Period, plus
(b) the Assessment Rate for such Interest Period.
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"Adjusted CD Rate Reserve Percentage" for any Interest Period for all CD
Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable on the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of or
including (among other liabilities) U.S. Dollar nonpersonal time deposits in
the United States and with a maturity equal to such Interest Period.
"Administrative Agents" means the U.S. Administrative Agent and the
Canadian Administrative Agent.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or any Subsidiary of such Person or, except where the term "Affiliate"
is used in the definitions herein of "Assignment and Acceptance" and "Bank" and
in Section 8.08, is a director of officer of such Person. For purposes of this
definition, the term "controls" (including the terms "controlled by" and "under
common control with") with respect to a Person means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise or, except where the term "Affiliate" is used in the
definitions herein of "Assignment and Acceptance" and "Bank" and in Section
8.08, to vote 5% or more of the Voting Stock of such Person.
"Agreement" means this Credit Agreement dated as of March 31, 1997 among
the Borrowers, the Banks and the Administrative Agents, as amended from time to
time in accordance with the terms hereof.
"Applicable Commitment Fee Rate" means the rate per annum set forth in the
"Commitment Fee" row of the Pricing Grid for the relevant Performance Pricing
Level applicable from time to time. The Applicable Commitment Fee Rate shall
change when and as the relevant applicable Performance Pricing Level changes.
"Applicable Designated Commitment Percentage" means, at any time of
determination, with respect to (a) the U.S. Borrower, U.S. Advances, the U.S.
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Banks and their respective Commitments, the percentage designated in the
Designation Notice most recently delivered to the U.S. Administrative Agent in
accordance with Section 2.16 as the U.S. Percentage, and (b) the Canadian
Borrower, Canadian Advances, the Canadian Banks and their respective
Commitments, the percentage designated in the Designation Notice most recently
delivered to the U.S. Administrative Agent in accordance with Section 2.16 as
the Canadian Percentage.
"Applicable Lending Office" means, with (a) respect to each U.S. Bank, (i)
in the case of a Base Rate Advance or CD Rate Advance, such Bank's U.S.
Domestic Lending Office, and (ii) in the case of a Eurodollar Rate Advance,
such Bank's Eurodollar Lending Office, and (b) with respect to each Canadian
Bank, (i) in the case of a Drawing, such Bank's Canadian Bankers' Acceptance
Lending Office and (ii) in the case of a Canadian Prime Rate Advance, such
Bank's Canadian Lending Office.
"Applicable Margin" means (i) as to any Canadian Prime Rate Advance, (a)
during such times as any Event of Default exists under Section 6.01(a) or
Section 6.01(e), the sum of 2% per annum plus the rate per annum set forth in
the Pricing Grid for a Canadian Prime Rate Advance and the relevant Performance
Pricing Level applicable from time to time, and (b) at all other times, the
rate per annum set forth in the Pricing Grid for a Canadian Prime Rate Advance
and the relevant Performance Pricing Level applicable from time to time, and
(ii) as to any U.S. Advance, (a) during such times as any such Event of Default
exists, the sum of 2% per annum plus the rate per annum set forth in the
Pricing Grid for the relevant U.S. Type of such Advance and the relevant
Performance Pricing Level applicable from time to time, and (b) at all other
times, the rate per annum set forth in the Pricing Grid for the relevant U.S.
Type of such Advance and the relevant Performance Pricing Level applicable from
time to time. The Applicable Margin for any Advance shall change when and as
the relevant Performance Pricing Level changes and when and as any such Event
of Default commences or terminates.
"Arranger" means Citicorp Securities, Inc.
"Assessment Rate" for any Interest Period for all CD Rate Advances
comprising part of the same Borrowing means the annual assessment rate
estimated by Citibank on the first day of such Interest Period for determining
the then current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. Dollar deposits of
Citibank in the United States.
"Assignment and Acceptance" means an assignment and acceptance, in
substantially the form of Exhibit H, (i) entered into by a Bank and an Eligible
Assignee or an Affiliate of a Bank, (ii) accepted by the U.S. Administrative
Agent and (iii) consented to by the U.S. Administrative Agent and the U.S.
Borrower if such consents are required by Section 8.08.
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"BA Equivalent Notes" has the meaning specified in Section 2.01(c).
"BA Obligations" means, collectively, Bankers' Acceptances and BA
Equivalent Notes.
"Bankers' Acceptance" has the meaning specified in Section 2.01(c).
"Bankers' Acceptance Rate" means, for BA Obligations comprising part of
the same Drawing to be purchased by a Canadian Bank, the arithmetic average of
the discount rates (calculated on an annual basis for a year of 365 or 366
days, as the case may be) and rounded up to the nearest multiple of 1/100th of
1%, if such average is not such a multiple, quoted by each Canadian Reference
Bank at 9:30 a.m. (Toronto time) on the date of such Drawing as the discount
rate at which such Canadian Reference Bank would purchase, on such date, its
own bankers' acceptances having an aggregate Face Amount equal to and with a
term to maturity the same as the BA Obligations to be acquired by such Canadian
Reference Bank as part of such Drawing. The Bankers' Acceptance Rate for each
BA Obligation comprising part of the same Drawing shall be determined by the
Canadian Administrative Agent on the basis of applicable rates furnished to and
received by the Canadian Administrative Agent from the Canadian Reference Banks
on the date of the applicable Drawing, subject, however, to the provisions of
Section 2.08.
"Banks" means the lenders listed on the signature pages hereof and each
Eligible Assignee or Affiliate of a Bank that becomes a party hereto pursuant
to Section 8.08(a), (b) and (d), and includes each U.S. Bank and each Canadian
Bank.
"Base Rate" means, for any period, a fluctuating interest rate per annum
as shall be in effect from time to time which rate per annum shall at all times
be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate; and
(b) the sum of 1/2 of one percent per annum plus the Federal
Funds Rate in effect from time to time.
"Base Rate Advance" means a U.S. Advance that bears interest as provided
in Section 2.06(a)(i).
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"Borrowers" means the U.S. Borrower and the Canadian Borrower.
"Borrowing" means a U.S. Borrowing or a Canadian Borrowing.
"Business Day" means (i) with respect to U.S. Advances, determinations of
Interest Periods or interest rates applicable thereto, payments in respect
thereof, the Federal Funds Rate or any notice required or permitted to be
delivered under any Loan Document to or by the U.S. Borrower or the U.S.
Administrative Agent, a U.S. Business Day, and (ii) with respect to Canadian
Advances, Drawings, BA Obligations, determinations of interest rates, discount
rates and fees applicable thereto, payments in respect thereof or any notice
required or permitted to be delivered under any Loan Document to or by the
Canadian Borrower or the Canadian Administrative Agent, a Canadian Business
Day.
"Canadian Administrative Agent" means Citibank Canada in its capacity as
Canadian Administrative Agent pursuant to Article VII and any successor in such
capacity pursuant to Section 7.06.
"Canadian Advance" means an advance by a Canadian Bank to the Canadian
Borrower pursuant to Section 2.02 and refers to a Canadian Prime Rate Advance.
"Canadian Bank" means each Bank listed under the heading "Canadian Banks"
on Schedule II or identified as a Canadian Bank in the Assignment and
Acceptance pursuant to which such Bank became a Bank, as the case may be, in
each case in its capacity as such.
"Canadian Bankers' Acceptance Lending Office" means, with respect to any
Canadian Bank, (i) the office of such Bank specified as its "Canadian Bankers'
Acceptance Lending Office" opposite its name on Schedule II hereto or in the
Assignment and Acceptance pursuant to which it became a Bank or (ii) such other
office of such Bank as such Bank may from time to time thereafter specify to
the Canadian Borrower and the Administrative Agents, unless so specifying such
other office would increase at the time of such specification any amounts
(including any withholding taxes required to be paid pursuant to Section 2.12)
payable under this Agreement by the Canadian Borrower (other than any such
amounts that such Bank agrees to waive in writing).
"Canadian Borrower" means Battle Mountain Canada Ltd., an Ontario
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corporation.
"Canadian Borrowing" means a borrowing consisting of Canadian Advances
made on the same day by the Canadian Banks pursuant to Section 2.02.
"Canadian Business Day" means a U.S. Business Day on which banks are not
required or authorized by law to close in Toronto.
"Canadian Cash Collateral Account" has the meaning specified in Section
5.01(n).
"Canadian Dollars" and "C$" each means lawful money of Canada.
"Canadian Interbank Rate" means the interest rate per annum which is
customarily used by the Canadian Administrative Agent when calculating interest
due by it or owing to it arising from or in connection with correction of
errors between it and other Canadian chartered banks.
"Canadian Lending Office" means, with respect to any Canadian Bank, (i)
the office of such Bank specified as its "Canadian Lending Office" opposite its
name on Schedule II hereto or in the Assignment and Acceptance pursuant to
which it became a Bank, or (ii) such other office of such Bank as such Bank may
from time to time specify to the Canadian Borrower and the Administrative
Agents, unless so specifying such other office would increase at the time of
such specification any amounts (including any withholding taxes required
pursuant to Section 2.12) payable under this Agreement by the Canadian Borrower
(other than any such amounts that such Bank agrees to waive in writing).
"Canadian Note" means a promissory note of the Canadian Borrower payable
to the order of any Bank, in substantially the form of Exhibit B, evidencing
the aggregate indebtedness of the Canadian Borrower to such Bank resulting from
the Canadian Advances owing to such Bank.
"Canadian Percentage" has the meaning specified in Section 2.16.
"Canadian Prime Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the higher of:
(a) the rate per annum which the principal office of Citibank
Canada in Toronto announces publicly from time to time as its prime rate
for determining rates of interest on commercial loans in Canadian Dollars
made by it in Canada;
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and
(b) 3/4 of 1% per annum above the average rate quoted for one
month Canadian Dollar bankers acceptances that appears on the Reuters
Screen CDOR Page (or any replacement page) as of 10:00 a.m. (Toronto time)
on the date of determination.
"Canadian Prime Rate Advance" means a Canadian Advance that bears interest
as provided in Section 2.06(b).
"Canadian Reference Banks" means Citibank Canada and Canadian Imperial
Bank of Commerce.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases and the amount of the
obligation associated therewith shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" means any of the following, to the extent owned by
either Borrower or any Subsidiary of either Borrower and having a maturity of
not greater than 360 days from the date of acquisition thereof: (a) readily
marketable direct obligations of the United States (or any agency or
instrumentality thereof), readily marketable obligations unconditionally
guaranteed by the full faith and credit of the United States and readily
marketable direct obligations of any of the countries listed on Schedule VIII,
(b) certificates of deposit of or time deposits with (i) any commercial bank
that is a member of the Federal Reserve System, issues (or the parent of which
issues) commercial paper rated as described in clause (c), is organized under
the laws of the United States or any State thereof and has combined capital and
surplus of at least U.S. $500,000,000 or (ii) any Bank, (c) commercial paper in
an aggregate amount of no more than U.S. $10,000,000 per issuer outstanding at
any time, issued by any corporation organized under the laws of any State of
the United States and rated at least "Prime-2" (or the then equivalent grade)
by Xxxxx'x and "A-2" (or the then equivalent grade) by S&P, (d) demand deposits
with banks made in the ordinary course of business, (e) deposits with banks or
other financial institutions required or contemplated by any document governing
any Project Financing Debt, (f) marketable direct obligations issued by any
state of the United States or province or territory of Canada or any political
subdivision of any such state, province or territory or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either S&P or Xxxxx'x, (g) any mutual fund that invests solely in any of
the items described in clauses (a), (b), (c) and (f) of this definition, and
(h) certificates of deposit or time deposits with any bank organized under any
foreign
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jurisdiction with an IBCA Banking Analysis Limited legal rating of "2" or
better and an IBCA Banking Analysis Limited individual rating of "B" or better
or, in the case of banks organized under the laws of Canada, with a rating of
at least "Prime-2" (or the then equivalent grade) by Xxxxx'x, "A-2" (or the
then equivalent grade) by S&P or "R-1/Low" (or the then equivalent grade) by
Dominion Bond Rating Service.
"CBR" means Crown Butte Resources Ltd., a Canadian corporation.
"CBR Subsidiaries" means each Subsidiary of CBR (other than any such
Subsidiary transferred by either Borrower or any of their respective
Subsidiaries to CBR or to a Subsidiary of CBR if the transfer was not effected
as a sale or other transfer pursuant to clause (h) of Section 5.02(j)).
"CD Rate Advance" means a U.S. Advance that bears interest as provided in
Section 2.06(a)(iii).
"Citibank" means Citibank, N.A., a national banking association.
"Citibank Canada" means Citibank Canada, a Canadian chartered bank.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor Federal tax code, and the regulations promulgated and
rulings issued thereunder, in each case as now or hereafter in effect, and any
reference to any statutory provision shall be deemed to be a reference to any
successor provision or provisions.
"Commitment" means, as to any Bank at any time, the product of (i) such
Bank's Maximum Commitment at such time and (ii) the Applicable Designated
Commitment Percentage at such time.
"Confidential Information" means information furnished by or on behalf of
and relating to either Borrower or any Consolidated Subsidiary to either
Administrative Agent or any Bank or any of their Representatives or obtained by
either Administrative Agent or any Bank or any of their Representatives
pursuant to Section 5.01(f), but does not include any such information (i) that
is or becomes generally available to the public (other than as a result of
action by either Administrative Agent or any Bank or any of their
Representatives that violates Section 8.13) or (ii) that is or becomes
available to either Administrative Agent or any Bank, in each case free of any
restriction as to its disclosure, from a source other than delivery by or on
behalf of either Borrower or any Consolidated Subsidiary.
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"Consolidated" refers to the consolidation of the accounts of the U.S.
Borrower and the Consolidated Subsidiaries in accordance with GAAP.
"Consolidated Subsidiary" means each Subsidiary of the U.S. Borrower that
is either consolidated or proportionately consolidated with the U.S. Borrower
in accordance with GAAP.
"Consolidated Tangible Net Worth" means, at any date, the excess of (a)
the Consolidated shareholders' equity of the U.S. Borrower determined in
accordance with GAAP (as would be shown in a Consolidated balance sheet of the
U.S. Borrower prepared as of such date under the heading "Shareholders' equity"
if such balance sheet was prepared on the same basis as the balance sheet
included in the Financial Statements or, if not so prepared, as would be shown
on such balance sheet if it were so prepared except for changes permitted under
Section 5.02(g)), over (b) the amount at such date, determined in accordance
with GAAP for the U.S. Borrower and the Consolidated Subsidiaries, of all (i)
patents, patent applications, trademarks, service marks, copyrights and trade
names, (ii) goodwill, organizational, experimental, research and development
expense and all other intangibles, (iii) treasury stock, (iv) monies set apart
and held in a sinking or other analogous fund established for the purchase,
redemption or other retirement of capital stock or indebtedness, (v)
unamortized debt discount and expense, (vi) write-ups of any assets occurring
after the date hereof, and (vii) the aggregate of any mandatory redemption
preferred stock and other capital stock (or other ownership interests) which
may be put to the issuer by the holder or for which the issuer has an
obligation to market such stock (or other ownership interests) to a third party
for the holder; provided that there shall not be taken into account in the
determination of Consolidated Tangible Net Worth any adjustments to equity
resulting from changes in statutory tax rates.
"Convert", "Conversion" and "Converted" each refers to (a) a conversion of
U.S. Advances of one U.S. Type into U.S. Advances of another U.S. Type pursuant
to Section 2.08, 2.14 or 2.15, (b) a conversion of BA Obligations into Canadian
Prime Rate Advances pursuant to Section 2.14 or 2.19 or (c) a conversion of
Canadian Prime Rate Advances into BA Obligations pursuant to Section 2.19.
"Debt" of any Person means, without duplication, (i) all gold loans of
such Person and all indebtedness of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person for the deferred
purchase price of property or services (other
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than trade accounts payable incurred in the ordinary course of such Person's
business), (iv) all obligations of such Person as lessee under Capitalized
Leases, (v) the aggregate amount of all accounts receivable of such Person sold
from time to time net of all collections received on, and all write-offs in
accordance with GAAP of, such accounts receivable, (vi) all obligations of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event
of default may be limited to repossession or sale of such property), (vii) all
obligations, contingent or otherwise, of such Person in respect of acceptances,
letters of credit or similar extensions of credit, (viii) all obligations of
such Person to purchase, redeem, retire, defease or otherwise make any payment
in respect of any capital stock of or other ownership or profit interest in
such Person or any other Person or any warrants, rights or options to acquire
such capital stock prior to March 31, 2003, valued, in the case of preferred
stock, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends but excluding any such obligation to the
extent the consideration to be paid consists of capital stock of such Person or
warrants, rights or options to acquire such capital stock or cash payments in
respect of fractional shares of such stock, (ix) all obligations of such Person
in respect of Prepaid Forward Sales Agreements, (x) all obligations of such
Person for production payments from property operated by or on behalf of such
Person and other similar arrangements with respect to natural resources to the
extent treated as a liability in accordance with GAAP (but excluding royalty
payments and similar payment obligations to governmental entities), (xi) all
Debt of others referred to in clauses (i) through (x) above or clause (xii)
below to the extent guaranteed directly or indirectly in any manner by such
Person, or to the extent in effect guaranteed directly or indirectly by such
Person through an agreement (1) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (2) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such Debt
or to assure the holder of such Debt against loss, (3) to supply funds to or in
any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or such
services are rendered) or (4) otherwise to assure a creditor against loss, and
(xii) all Debt referred to in clauses (i) through (xi) above secured by (or for
which the holder of such Debt has a right, contingent or otherwise, to be
secured by) any Lien on property owned by such Person, even though such Person
has not assumed or become liable for the payment of such Debt, with the amount,
determined for calculation purposes hereof, of each such non-assumed Debt to
equal the greater of the book value or the fair market value (reasonably
determined from time to time) of the property subject to such Lien.
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16
"Default" means any event or condition which with notice or lapse of time
or both would, unless cured or waived, become an Event of Default.
"Defined Dividend Restriction" of any Person means any restriction on the
making by such Person of any dividend, distribution or advance to any Upstream
Owner of such Person imposed by (i) any consensual arrangement or (ii) any non-
consensual restriction (other than restrictions imposed by corporation,
partnership or comparable statutes that limit dividends to available capital
and surplus) that is detrimental in any material respect to either Borrower.
"Designation Notice" has the meaning specified in Section 2.16.
"Disclosed Litigation" means the litigation described on Schedule III.
"Dividend Restricted Subsidiary" means (i) each Subsidiary of either
Borrower that is subject to any Defined Dividend Restriction and (ii) each
Subsidiary of either Borrower any Upstream Owner of which (other than the U.S.
Borrower) is subject to any Defined Dividend Restriction.
"Dollars", "$", "U.S. Dollars" and "U.S. $" each means lawful money of the
United States of America.
"Draft" means a xxxxx xxxx of exchange, within the meaning of the Bills of
Exchange Act (Canada), drawn by the Canadian Borrower on any Canadian Bank, in
substantially the form of Exhibit K-1, with respect to any such xxxx of
exchange drawn on Citibank Canada, Exhibit K-2, with respect to any such xxxx
of exchange drawn on Royal Bank of Canada, or Exhibit K-3, with respect to any
such xxxx of exchange drawn on any other Canadian Bank, and which, except as
otherwise provided herein, has not been completed or accepted by such Bank.
"Drawing" means (a) the simultaneous acceptance of Drafts and purchase of
Bankers' Acceptances by the Canadian Banks, and (b) for any Canadian Bank which
is not a bank under the Bank Act (Canada) or that is otherwise unable to
complete and accept bankers' acceptances in Canada, the purchase of a BA
Equivalent Note, in each case in accordance with Section 2.03(a) or Section
2.19.
"Drawing Fee" means, with respect to each BA Obligation, an amount equal
to (a) the percentage set forth in the "Drawing Fee" row of the Pricing Grid
for the relevant Performance Pricing Level in effect on the date of the Drawing
or renewal of, or Conversion into, as the case may be, such BA Obligation
multiplied by (b) the Face
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17
Amount of such BA Obligation, calculated on the basis of the term to maturity
of such BA Obligation and a year of 365 (or, in the case of a leap year, 366)
days.
"Drawing Purchase Price" means, with respect to each BA Obligation to be
purchased and/or accepted by any Canadian Bank, at any time, the amount
(adjusted to the nearest whole cent or, if there is no nearest whole cent, the
next higher whole cent) obtained by dividing (i) the aggregate Face Amount of
such BA Obligation, by (ii) the sum of (A) one plus (B) the product of (1) the
Bankers' Acceptance Rate (expressed as a decimal) for such BA Obligation
multiplied by (2) a fraction the numerator of which is the number of days in
the term to maturity of such BA Obligation and the denominator of which is 365
(or, in the case of a leap year, 366) days.
"EBITDA" means for any period the sum, without duplication, of (i) the
Consolidated net income (or loss) of the U.S. Borrower and its Subsidiaries
(other than Dividend Restricted Subsidiaries) for such period determined in
accordance with GAAP plus (ii) to the extent included in the determination of
such net income (or loss), the Consolidated charges for such period for net
interest, depreciation, depletion and amortization plus (iii) to the extent not
included in the determination of such income (or loss), cash distributions and
debt service payments actually received by either Borrower from any other
Person (including from any Dividend Restricted Subsidiaries) plus (or, if there
is a benefit from income taxes, minus) (iv) to the extent included in the
determination of such net income, the amount of the provision for or benefit
from U.S. income taxes and Canadian income and mining taxes; provided that in
determining such Consolidated net income, such Consolidated charges and such
provision for or benefit from income taxes, there shall be excluded therefrom
(to the extent otherwise included therein) (a) pre-tax gains or losses on any
sale, transfer or other disposition (other than any sale or transfer described
in clause (a) or clause (d) of Section 5.02(j)) of any property by either
Borrower or any Subsidiary of either Borrower if such sale, transfer or other
disposition results in a pre-tax gain or loss in excess of $250,000
individually, (b) all extraordinary gains and extraordinary losses, prior to
applicable income taxes, and (c) any item constituting the cumulative effect of
a change in accounting principles, prior to applicable income taxes.
"Eligible Assignee" means (i) any Bank, (ii) a commercial bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of U.S. $1,000,000,000, (iii) a savings and loan association
or savings bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of U.S. $1,000,000,000, (iv) a
commercial bank organized under the laws of any other country that is a member
of the OECD or has concluded special lending arrangements
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18
with the International Monetary Fund associated with its General Arrangements
to Borrow or of the Cayman Islands, or a political subdivision of any such
country, and having total assets in excess of U.S. $1,000,000,000, so long as
such bank is acting through a branch or agency located in the United States or
in the country in which it is organized or another country that is described in
this clause (iv), (v) the central bank of any country that is a member of the
OECD, and (vi) any other Person approved by the U.S. Administrative Agent and
the U.S. Borrower, such approval on the part of each not to be unreasonably
withheld or delayed (without limiting the foregoing, it is agreed that is
reasonable for the U.S. Borrower to withhold such approval if an assignment to
an Eligible Assignee hereunder would increase at the time of such assignment
any amount payable by either Borrower hereunder (including the withholding
taxes required to be paid by either Borrower under Section 2.12)); provided
that a finance company, insurance company or fund (whether a corporation,
partnership, trust or other entity) shall be subject to approval of the U.S.
Borrower and the U.S. Administrative Agent, each in its sole discretion; and
provided further that neither Borrower nor any Affiliate of either Borrower
shall be an Eligible Assignee.
"Environmental Action" means any action, suit, claim, notice of
non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any
way to any Environmental Law, Environmental Permit or Hazardous Materials or
arising from alleged injury or threat of injury to the environment, including
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or (based on any violation of
Environmental Law or any governmental action) any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, provincial, local or foreign
statute, law, ordinance, rule, regulation or code, and any order, judgment or
decree, in the case of all of the foregoing applicable to a Borrower, any
Consolidated Subsidiary or any property of any Borrower or any Consolidated
Subsidiary, and also in each case relating to pollution or protection of the
environment or natural resources, including those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, license or other
authorization required under any Environmental Law.
"Equity Proceeds" means the cash proceeds received by the U.S. Borrower
from
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19
the sale or issuance of capital stock of the U.S. Borrower, net of underwriting
discounts and commissions and out-of- pocket costs and expenses incurred in
connection therewith.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder, and any reference to any statutory provision shall be deemed to be
a reference to any successor provision or provisions.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the U.S. Borrower's controlled group, or under common control
with the U.S. Borrower, within the meaning of Section 414(b) or (c) of the
Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with a contributing
sponsor, as defined in Section 4001(a)(13) of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of either Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by either Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with respect to any
Plan; (g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or (h) the institution
by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any U.S. Bank, the
office of
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20
such Bank specified as its "Eurodollar Lending Office" opposite its name on
Schedule II hereto or in the Assignment and Acceptance pursuant to which it
became a Bank (or, if no such office is specified, its U.S. Domestic Lending
Office), or such other office of such Bank as such Bank may from time to time
specify to the U.S. Borrower and the U.S. Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same U.S. Borrowing, an interest rate per annum
equal to the average (rounded upward to the nearest whole multiple of 1/100 of
1% per annum, if such average is not such a multiple) of the rate per annum at
which deposits in U.S. Dollars are offered by the principal office of each of
the U.S. Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing and for a
period equal to such Interest Period. The Eurodollar Rate for any Interest
Period for each Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the U.S. Administrative Agent on the basis of the
applicable rates furnished to and received by the U.S. Administrative Agent
from the U.S. Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a U.S. Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Bank for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing means
the reserve percentage applicable during such Interest Period (or if more than
one such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
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21
"Exchangeable Shares" means the Exchangeable Shares of the Canadian
Borrower as defined in the Joint Proxy Statement.
"Excluded Taxes" means (i) in the case of each Bank and each
Administrative Agent, (A) taxes imposed by any jurisdiction on its overall net
income and capital taxes imposed by Canada or any province or territory
thereof, and (B) franchise taxes imposed on or measured by net income or
capital or imposed on it in lieu of net income taxes, in each case imposed by
the United States or by the jurisdiction under the laws of which such Bank or
such Administrative Agent (as the case may be) is organized or any political
subdivision of any of the foregoing, and (ii) in the case of each Bank, (1)
franchise taxes imposed on or measured by net income or capital or imposed on
it in lieu of net income taxes, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof, (2) Canadian withholding
taxes in respect of payments of interest to such Bank on an Advance to the
Canadian Borrower due to the funding by such Bank of such Advance from a United
States lending office if such Bank is not prohibited from establishing and
funding Advances to the Canadian Borrower from a Canadian affiliate that would
not be subject to such withholding taxes, and (3) U.S. withholding taxes in
respect of payments of interest to such Bank on an Advance to the U.S. Borrower
due to the funding by such Bank of such Advance from a Canadian lending office
if such Bank is not prohibited from establishing and funding Advances to the
U.S. Borrower from a U.S. affiliate that would not be subject to such
withholding taxes.
"Face Amount" means, with respect to any BA Obligation, the amount payable
to the holder of such BA Obligation on its then existing Maturity Date.
"Federal Funds Rate" means, for any day, a fluctuating interest rate per
annum equal for such day to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such transactions
received by the U.S. Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereof.
"Financial Statements" means the Consolidated balance sheet and other
financial
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22
statements of the U.S. Borrower and the Consolidated Subsidiaries as at
December 31, 1995 referred to in Section 4.01(f)(i), copies of which have been
furnished to each Bank listed on the signature pages hereof.
"Fiscal Year" means a fiscal year of the U.S. Borrower ending on December
31 in any calendar year.
"Fixed Charges" means, for any period, the total amount paid by the
Borrowers and their respective Subsidiaries (other than Dividend Restricted
Subsidiaries) on a consolidated basis during such period in respect of
preferred stock dividends and interest on indebtedness (determined in
accordance with GAAP) of the Borrowers and their respective Subsidiaries (other
than Dividend Restricted Subsidiaries), including payments under Capital Lease
Obligations that are recorded as interest in accordance with GAAP and the net
payments, if any, under interest Hedge Agreements that are recorded as interest
in accordance with GAAP.
"Funded Debt" of any Person means all indebtedness of such Person that by
its terms matures more than one year after the date of determination or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year after such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year after such date.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, applied on a basis consistent with those applied in the
preparation of the Financial Statements, except for changes permitted by
Section 5.02(g).
"Guaranty" means the Guaranty duly executed by the U.S. Borrower in
substantially the form of Exhibit I.
"Hazardous Materials" means any chemicals, materials or substances,
including any petroleum and petroleum products and their byproducts or
breakdown products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas, in each case designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts, forward rate transactions, commodity swap
agreements, commodity futures,
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23
forwards and option contracts and other similar agreements.
"Indemnified Party" means each of the Administrative Agents, the Banks,
the Arranger and each director, officer, employee, Affiliate, advisor and agent
of either Administrative Agent, any Bank or the Arranger.
"Information Memorandum" means the Confidential Information Memorandum
dated February, 1997, a copy of which has been delivered to each of the Banks
listed on the signature pages hereof.
"Insufficiency" means, with respect to any Plan, the amount, if any, by
which the present value of the accrued benefits under such Plan exceeds the
fair market value of the assets of such Plan allocable to such benefits.
"Interest Period" means, for each Eurodollar Rate Advance or CD Rate
Advance comprising part of the same Borrowing, the period commencing on the
date of such Advance or the date of the Conversion of any U.S. Advance into
such an Advance and ending on the last day of the period selected by the U.S.
Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by such Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be (a)
in the case of a Eurodollar Rate Advance, one, two, three, six or (with the
consent of all U.S. Banks as to each nine month Interest Period) nine months,
and (b) in the case of a CD Rate Advance, 30, 60, 90 or 180 days, in each case
as such Borrower may, upon notice received by the U.S. Administrative Agent not
later than 11:00 A.M. (New York City time) on the third U.S. Business Day prior
to the first day of such Interest Period, select; provided that:
(i) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same
duration;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided that if such extension would cause the
last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of the
calendar
-18-
24
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month in which it would have ended if there were a
numerically corresponding day in such calendar month; and
(iv) the Borrower may not select an Interest Period for any Advance if
the last day of such Interest Period would be later than the
Termination Date or if any Event of Default under Section 6.01(a)
or Section 6.01(e) shall have occurred and be continuing at the
time of selection.
"Inti Raymi" means Empresa Minera Inti Raymi S.A., a Bolivian Sociedad
Anonima.
"Investment" means, as applied to any Person, any direct or indirect
(whether in cash or other property) (i) purchase or other acquisition by such
Person of any interest in stock, partnership interest, other ownership or
profit interest, warrants, rights, options, obligations or other securities of
any other Person, (ii) loan, advance or other Debt made by such Person to any
other Person, (iii) guaranty, assumption or other incurrence of liability by
such Person of or for any Debt or other obligation of any other Person, or (iv)
capital contribution or other investment by such Person in any other Person,
including any arrangement pursuant to which the investor incurs Debt of the
types referred to in clause (xi) or clause (xii) of the definition herein of
"Debt." The amount of any Investment shall be the amount that would be shown
on such Person's financial statements in respect of such Investment plus the
pre-tax amount of write-downs and write-offs with respect to such Investment
since the date hereof (determined in accordance with GAAP).
"Investment Fund" means (i) any single customer account, pooled separate
account or general account of an insurance company, or any other account, the
assets of which could be considered "plan assets" of any Plan under any of
Xxxxxxxx 0, 000, xx 000 xx XXXXX, (xx) any individual trust or common,
collective or group trust maintained by any bank, or any other trust, the
assets of which could be considered "plan assets" of any Plan under any of
Section 3, 401 or 403 of ERISA, or (iii) any entity or fund not previously
mentioned whose underlying assets include "plan assets" of any Plan by reason
of the investment in the entity or fund by an "employee benefit plan" (within
the meaning of Section 3(3) of ERISA) or a "plan" (within the meaning of
Section 4975(e)(1) of the Code) and the application of the U.S. Department of
Labor's "plan asset regulation."
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25
"Joint Proxy Statement" means the Joint Management Information Circular
and Proxy Statement dated June 7, 1996 of the Borrowers, a copy of which has
been delivered to each Bank listed on the signature pages hereof.
"Lien" means any mortgage, pledge, security interest, lien, charge, deed
of trust, encumbrance or any other type of preferential arrangement to secure
or provide for the payment of any obligation of any Person, whether arising by
contract, operation of law or otherwise, and whether or not filed, recorded or
otherwise perfected under applicable law (including any production payment
treated as a liability under GAAP, advance payment or similar arrangement with
respect to minerals in place (but in all events excluding interests arising
under obligations in the nature of royalty or other similar types of payments
to governmental entities not treated as a liability under GAAP), any agreement
to grant any Lien, the interest of a vendor or lessor under any conditional
sale or other title retention agreement, Capitalized Lease or sale leaseback
transaction and any agreement to file any financing statement or other Lien
perfection document to secure an obligation).
"Loan Documents" means this Agreement, the Guaranty, the Notes, the
Drafts, Bankers' Acceptances and the BA Equivalent Notes.
"Material Adverse Effect" means a material adverse effect on the business,
condition (financial or otherwise), operations, properties or reasonably
foreseeable prospects of the U.S. Borrower and the Consolidated Subsidiaries,
taken as a whole.
"Maturity Date" means, for each BA Obligation comprising part of the same
Drawing, the date on which the Face Amount for such BA Obligation becomes due
and payable in accordance with the provisions set forth below, which shall be a
Canadian Business Day occurring 1, 2, 3 or (with the consent of all Canadian
Banks as to each selection by the Canadian Borrower of 6 months ) 6 months
after the date on which such BA Obligation is purchased and/or accepted as part
of any Drawing, as the Canadian Borrower may select upon notice received by the
U.S. Administrative Agent not later than 12:00 noon (New York City time) on the
third Canadian Business Day prior to the date on which such BA Obligation is to
be accepted and purchased (whether as a new Drawing, by renewal or by
Conversion); provided that:
(a) such Borrower may not select any Maturity Date for any BA
Obligation that occurs after the Termination Date;
(b) such Borrower may not select any Maturity Date with
respect to
-20-
26
any BA Obligation if any Event of Default under Section 6.01(a) or Section
6.01(e) shall have occurred and be continuing at the time of selection;
(c) the Maturity Date for all BA Obligations comprising part
of the same Drawing shall occur on the same date; and
(d) whenever the Maturity Date for any BA Obligation would
otherwise occur on a day other than a Canadian Business Day, such Maturity Date
shall be extended to occur on the next succeeding Canadian Business Day.
"Maximum Commitment" means, with respect to any Bank at any time, the
amount set forth opposite such Bank's name on Schedule II under the caption
"Maximum Commitment" or, if such Bank has entered into one or more Assignments
and Acceptances, set forth for such Bank in the Register maintained by the U.S.
Administrative Agent pursuant to Section 8.08(c) as such Bank's "Maximum
Commitment", as such amount may be reduced at or prior to such time pursuant to
Section 2.04(c).
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to its
debt ratings business.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the U.S. Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the U.S.
Borrower or any ERISA Affiliate and at least one Person other than the U.S.
Borrower and the ERISA Affiliates or (b) was so maintained and in respect of
which the U.S. Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NML" means Niugini Mining Limited, a Papua New Guinea corporation.
"NML Subsidiaries" means each Subsidiary of NML (other than any such
Subsidiary transferred by either Borrower or any of their respective
Subsidiaries to NML or a Subsidiary of NML if the transfer was not effected as
a sale or other transfer pursuant to clause (h) of Section 5.02(j)).
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27
"Note" means a U.S. Note or a Canadian Note.
"Notice of Canadian Borrowing" has the meaning specified in Section
2.02(b).
"Notice of Drawing" has the meaning specified in Section 2.03(a).
"Notice of U.S. Borrowing" has the meaning specified in Section 2.02(a).
"OECD" means the Organization for Economic Cooperation and Development.
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Performance Pricing Level" means the applicable category (being Xxxxx X,
Xxxxx XX, Xxxxx XXX, Xxxxx XX or Level V) of pricing criteria contained in
Schedule I, which is based on the actual or implied (as contemplated by
footnote 1 to Schedule I) rating by S&P or Xxxxx'x of the U.S. Borrower's
senior unsecured long-term debt (or if no such ratings exist, the ratios of
Total Consolidated Debt to Total Capitalization and EBITDA to Fixed Charges).
"Permitted Investments" means
(a) Investments in cash and Cash Equivalents;
(b) Investments consisting of intercompany Debt permitted by
Section 5.02(b) (other than paragraphs (x) and (xi) thereof);
(c) other investments existing on the date hereof and
described on Schedule IV and any renewal, extension or refinancing thereof in
an amount not greater than the outstanding amount thereof at the time of such
renewal, extension or refinancing;
(d) (i) Investments by the U. S. Borrower in the Canadian
Borrower and (ii) Investments in Consolidated Subsidiaries (other than any
Dividend Restricted Subsidiary);
(e) purchases of all or any portion of the equity interests
that are not owned on the date hereof by either Borrower or any
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Subsidiary of either Borrower in any of the Consolidated Subsidiaries as of the
date hereof;
(f) Investments in any newly acquired or newly formed
Subsidiary that, immediately after such acquisition or formation, (i) is at
least 90% owned, directly or indirectly, by the U.S. Borrower, and (ii) is not
a Dividend Restricted Subsidiary;
(g) reasonable loans and advances to employees of either
Borrower or any of their Subsidiaries in the ordinary course of business and
reasonable loans to officers and directors of either Borrower or any of their
Subsidiaries;
(h) Investments by the U.S. Borrower in respect of the Crown
Jewel project pursuant to obligations existing on the date hereof and described
in Schedule IX; and
(i) other Investments the outstanding amount of which shall
not exceed U.S. $150,000,000 in the aggregate at any time.
"Permitted Liens" means the following Liens (except that any Lien arising
under or in connection with ERISA or any Plan shall not be a "Permitted Lien"):
(a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(d) hereof;
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising in
the ordinary course of business securing obligations that are not overdue for a
period of more than 30 days;
(c) pledges or deposits to secure obligations of the
Borrowers and their Subsidiaries under workers' compensation laws, unemployment
insurance programs or similar legislation or to secure public or statutory
obligations of the Borrowers and their Subsidiaries;
(d) easements, rights of way and other encumbrances on title
to real property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property for its
present purposes in each case in a manner that materially interferes in the
conduct of the business of the Borrowers and their Subsidiaries, taken as a
whole;
(e) Liens that (i) exist on the date hereof and (ii) if
material, are
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described in the Information Memorandum;
(f) Liens on property of a Subsidiary existing at the time
such Subsidiary becomes a Subsidiary of either Borrower and not created in
contemplation thereof (and, in the event either NML or CBR becomes a
Wholly-Owned Subsidiary of the U.S. Borrower, Liens on the property of NML or
CBR, as the case may be, existing at the time it becomes such a Wholly-Owned
Subsidiary);
(g) Any Lien on assets acquired by a Borrower securing Debt
assumed by such Borrower pursuant to its acquisition of such assets if such
Debt is permitted by Section 5.02(b)(viii);
(h) in addition to the Liens covered in paragraphs (f), (g),
(i) and (j) of this definition, (A) the interest of the lessor under any
Capitalized Lease permitted by Section 5.02(b)(iii) in the assets covered by
such Capitalized Lease, and (B) purchase money Liens on any property acquired
(directly or indirectly through the acquisition of an ownership interest in the
entity owning such property) by either Borrower or any Subsidiary of either
Borrower to secure the purchase price of such property or to secure purchase
money Debt incurred solely for the purpose of financing the direct or indirect
acquisition of such property (whether such Debt is incurred directly from the
transferor of such property or indirectly from a lender to finance such
acquisition) or extensions, renewals or replacements of any such Capital Lease,
purchase money Lien or purchase money Debt for the same or a lesser amount,
provided that no such Lien shall extend to or cover any property other than the
property covered by such Capitalized Lease or the property being acquired and
no such extension, renewal or replacement shall extend to or cover any property
not theretofore subject to the Lien being extended, renewed or replaced,
provided further that the aggregate principal amount of the Debt secured by the
Liens referred to in clause (A) of this paragraph (h) shall not exceed U.S.
$50,000,000 at any time outstanding, and the principal amount of the Debt or
other obligation secured by any Lien on acquired property pursuant to clause
(B) of this paragraph (h) shall not exceed 90% of the fair market value of such
property;
(i) Liens upon property of any Project Financing Subsidiary
or any Related Project Entity thereof securing Project Financing Debt of such
Subsidiary or Liens of the stock of such Project Financing Subsidiary or any
Related Project Entity thereof (including Liens on the stock of Inti Raymi and
the assets of Inti Raymi, in each case related to Project Financing Debt for so
long as it is a Project Financing Subsidiary);
(j) Liens securing indebtedness for borrowed money (including
under
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a financing lease) of the Borrowers and their Subsidiaries if the interest on
such indebtedness is excludable from gross income of the holder of such
indebtedness pursuant to Section 103 of the Code and if such Liens cover only
the property being acquired, constructed or improved by the Borrowers and their
Subsidiaries with the proceeds of such indebtedness and any related property
acquired in connection with such indebtedness and any related after acquired
property;
(k) Liens securing the performance of bids, tenders, leases,
contracts (other than for the repayment of Debt or gold obligations), statutory
obligations, surety and customs bonds and other obligations of like nature,
incurred by a Borrower or any Subsidiary of a Borrower as an incident to and in
the ordinary course of business, Liens securing appeal bonds of any Borrower or
any such Subsidiary in the ordinary course of business and Liens securing other
appeal bonds of any Borrower or any such Subsidiary so long as the aggregate
value of assets subject to such other appeal bonds in the aggregate does not
exceed $5,000,000;
(l) statutory landlord's Liens under any real property lease
not prohibited by this Agreement to which either Borrower or any Subsidiary of
either Borrower is a party and consensual Liens securing rent under any such
lease;
(m) Liens arising out of judgments (other than any judgment
described in Section 6.01(f) and constituting an Event of Default) in respect
of which either Borrower or any of their Subsidiaries shall in good faith be
prosecuting an appeal or proceedings for review and in respect of which such
Borrower or such Subsidiary, as the case may be, shall have secured a
subsisting stay of execution pending such appeal or proceedings for review,
provided that such Borrower or such Subsidiary, as the case may be, shall have
set aside on its books adequate reserves, in accordance with GAAP, with respect
to such judgment;
(n) any arrangement with respect to a joint venture to which
either Borrower or any of their Subsidiaries is a party where legal title to
assets in which either Borrower or any of their Subsidiaries has a beneficial
interest is held in the name of the operator or any other joint venturer party
to such joint venture or in the name of the joint venture if such arrangement
is not for the purpose of securing Debt;
(o) the paramount rights of the United States, Canada or any
other domestic governmental authority or any foreign governmental authority in
and to any unpatented mining or mill site claims or leases held by either
Borrower or any of their Subsidiaries;
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31
(p) Liens on the property being developed or operated by a
joint venture to which either Borrower or any of their Subsidiaries is a party
in favor of the operator or another joint venturer party to such joint venture
securing the respective obligations of the joint venturers party to such joint
venture to advance funds or reimburse advances of funds or to perform
obligations under the applicable joint venture agreement;
(q) Liens arising under customary joint venture agreement
provisions on a joint venturer's interest in such joint venture to secure
obligations (other than Debt) thereunder of such venturer to the other joint
venturers;
(r) Liens arising in the ordinary course of business on
minerals of the Borrowers and their Subsidiaries and real property related
thereto acquired after the date hereof related to the operation of such real
property which customarily arise in the mining business (and not in connection
with borrowed money or other Debt) under production sales agreements, division
orders, operating agreements, and other agreements for processing, producing,
transporting, marketing and exchanging produced metals;
(s) Liens arising under obligations in the nature of royalty
or other similar types of payments to governmental entities treated as
liabilities under GAAP pursuant to a change in GAAP after the date hereof and
existing on the date of such change in GAAP; and
(t) other Liens securing Debt and other obligations of the
Borrowers and their Subsidiaries in an aggregate principal amount at any one
time outstanding not to exceed U.S. $1,000,000.
"Permitted Prepaid Forward Sales" means prepaid forward sales of metals if
(i) the total outstanding amount so prepaid for all such sales does not exceed
U.S. $10,000,000 in the aggregate as of any date of determination, (ii) the
term of each such sale does not exceed one month, and (iii) each such sale and
the related prepayment occur in the ordinary course of business.
"Permitted Restrictions" means (i) restrictions on any Subsidiary of
either Borrower that is acquired after the date hereof to the extent existing
on the date of acquisition and not created in contemplation thereof, (ii)
restrictions on any Subsidiary of either Borrower set forth in the agreements
governing tax-exempt Debt of such Subsidiary permitted by Section 5.02(b)(x),
(iii) restrictions on Inti Raymi existing on the
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32
date hereof in connection with its financing agreements and (iv) restrictions
on any other Project Financing Subsidiary or Related Project Entity thereof set
forth in the agreements governing permitted Project Financing Debt of such
Project Finance Subsidiary.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof or any trustee, receiver, custodian or similar official.
"Plan" means a Single Employer Plan, a Multiple Employer Plan or a
Multiemployer Plan, in each case that is subject to ERISA.
"Pre-Commitment Information" means all information delivered by the
Borrowers to any Bank listed on the signature pages hereof prior to its
becoming a party hereto.
"Preferred Stock" (whether or nor capitalized) means, as applied to any
Person, shares of capital stock or other ownership interests of such Person
which shall be entitled to preference or priority over any other shares of
capital stock or other ownership interests of such Person in respect of either
the payment of dividends or distributions or the distribution of assets upon
liquidation.
"Prepaid Forward Sales Agreements" means physical delivery contracts for
which a Person has received or has the right to receive a cash payment in
advance of physical delivery of the subject commodity and which would be
reflected in the financial statements or footnotes thereto of such Person in
accordance with GAAP and each Hedge Agreement for which the termination value
immediately after the inception of such Hedge Agreement is not zero (excluding
customary bid/ask differentials for market level transactions).
"Pricing Grid" means the pricing information set forth in Schedule I,
including the footnotes thereto.
"Project Financing Debt" means Debt incurred by a Project Financing
Subsidiary to finance the acquisition (including any acquisition from either
Borrower or any Subsidiary of either Borrower) or construction of a mineral
property and related facilities (excluding any facilities existing as of the
date hereof and excluding any and all proven and probable reserves as of the
date hereof disclosed in the Information Memorandum, in each case at the Golden
Giant, Battle Mountain Complex (other than the Phoenix Project) or Xxxxxxxx
properties or any interests in any such facilities or reserves), which Debt
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33
does not permit or provide for recourse (whether by guaranty or otherwise)
against either Borrower (other than a completion guaranty of such facility by
the U.S. Borrower and a financing guaranty by the U.S. Borrower pending such
completion) or any Subsidiary of either Borrower (other than the Project
Financing Subsidiary that is to acquire or construct such facility, any of its
Related Project Entities and any of its Subsidiaries that is a Project
Financing Subsidiary) or to any of their respective properties (other than the
stock of the Project Subsidiary that is to acquire or construct such facility,
any of its Related Project Entities and any of its Subsidiaries that is a
Project Financing Subsidiary).
"Project Financing Subsidiary" means a Subsidiary of the U.S. Borrower
created after the date hereof that is formed and operated for the sole purpose
of developing and operating a mineral property and related facilities (and that
does not own or operate, and such property and facilities do not otherwise
include, any facilities existing as of the date hereof or any proven and
probable reserves as of the date hereof disclosed in the Information
Memorandum, in each case at the Golden Giant, Battle Mountain Complex (other
than the Phoenix Project) or Xxxxxxxx properties, or any interests in any such
facilities or reserves), and the financing for which is obtained on a basis as
to which there is no recourse (by guaranty or otherwise) to either Borrower
(other than a completion guaranty of such facility by the U.S. Borrower and a
financing guaranty by the U.S. Borrower pending such completion) or any
Subsidiary of either Borrower (other than such Project Financing Subsidiary
that is to develop and operate such facility, any of its Related Project
Entities or any of its Subsidiaries that is a Project Financing Subsidiary) or
to any of their respective properties (other than the stock or other equity
interest in such Project Financing Subsidiary that is to develop and operate
such facility, any of its Related Project Entities or any of its Subsidiaries
that is a Project Financing Subsidiary).
"Property" or "asset" (in each case, whether or not capitalized) means any
interest in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible.
"Ratio Reduction Percentage" has the meaning set forth in Section 5.02(d).
"Reference Bank" means a U.S. Reference Bank or a Canadian Reference Bank.
"Register" has the meaning specified in Section 8.08(c).
"Regulation G" means Regulation G of the Federal Reserve Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or
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34
thereof.
"Regulation U" means Regulation U of the Federal Reserve Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Related Project Entity" of any Project Financing Subsidiary means a
Subsidiary of a Borrower that is formed and operated for the primary purpose of
performing some aspect of developing and operating a mineral property and
related facilities of such Project Financing Subsidiary, but that is not itself
a Project Financing Subsidiary. Without limiting the foregoing, Servicios de
Maquinarias y Transporte, S.A. is a Related Project Entity of Inti Raymi.
"Representative" shall mean, with respect to any Person, officers,
directors, agents, employees, auditors, accountants, counsel and other advisors
of such Person.
"Required Banks" means at any time Banks owed or holding at least 66 2/3%
of the sum of (i) the aggregate Face Amount of all BA Obligations outstanding
at such time plus (ii) the aggregate principal amount of the Advances owing to
the Banks outstanding at such time (in the case of BA Obligations and Canadian
Advances, determined on the basis of the then U.S. Dollar Equivalent thereof),
or, if no such principal amount is then outstanding, Banks having at least 66
2/3% of the total Commitments; provided that for purposes of Sections 2.02(a)
and 2.08(d), "Required Banks" shall mean at any time U.S. Banks owed or holding
at least 66 2/3% of the aggregate principal amount of the U.S. Advances owing
to the U.S. Banks outstanding at such time, or if no such principal amount is
then outstanding, U.S. Banks having at least 66 2/3% of the total Commitments
held by the U.S. Banks; and provided further that for purposes of Sections
2.02(b), 2.03(a) and 2.04(d), "Required Banks" shall mean at any time Canadian
Banks owed or holding at least 66 2/3% of the sum of (i) the aggregate Face
Amount of all BA Obligations outstanding at such time plus (ii) the aggregate
principal amount of the Canadian Advances owing to the Canadian Banks
outstanding at such time, or if no such principal amount is then outstanding,
Canadian Banks having at least 66 2/3% of the total Commitments held by the
Canadian Banks.
"Restricted Payment" means any direct or indirect dividend or distribution
(whether in cash, securities or other property) or any direct or indirect
payment of any kind or character (whether in cash, securities or other
property) in consideration for or otherwise in connection with any retirement,
purchase, redemption or other acquisition of any capital stock of the U.S.
Borrower, any other ownership interest of the U.S. Borrower
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35
or any of the Exchangeable Shares or any options, warrants or rights to
purchase or acquire any such capital stock, any such other ownership interest
or any of the Exchangeable Shares; provided that the term "Restricted Payment"
shall not include (a) any dividend or distribution payable solely in shares of
common stock of the U.S. Borrower or Exchangeable Shares of the Canadian
Borrower or warrants, options or other rights to purchase such stock, or (b)
cash payments not exceeding $1,000,000 in the aggregate made (i) in lieu of
fractional shares of such stock or (ii) directly or indirectly in connection
with the "Rights" or "Exchangeable Share Rights" as such terms are defined in
the Joint Proxy Statement.
"Revolving Credit Facility" means, at any time, the aggregate amount of
the Commitments of the Banks at such time.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc. on the date hereof, or any successor to its debt ratings business.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the U.S. Borrower
or any ERISA Affiliate and no Person other than the U.S. Borrower and the ERISA
Affiliates or (b) was so maintained and in respect of which the U.S. Borrower
or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Subordinated Debt" means (a) the 6% Convertible Subordinated Debentures
of the U.S. Borrower due 2005 in the aggregate principal amount of U.S.
$100,000,000 issued pursuant to the Subordinated Debt Fiscal and Paying Agency
Agreement dated as of January 4, 1990 (the "6% Convertible Subordinated
Debentures"), and (b) Debt for money borrowed for which the U.S. Borrower is
directly and primarily obligated which arises after the date hereof which is
subordinate in right of payment to the payment of the principal of and interest
on the Notes and the Guaranty either (i) substantially at least to the extent
and in the manner the 6% Convertible Subordinated Debentures are subordinate to
the payment of the principal of and interest on the Notes or (ii) otherwise in
a manner satisfactory to the Required Banks, provided that Subordinated Debt
under this clause (b) shall not have a stated maturity prior to March 31, 2003
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust, estate or other entity of which (or
in which) more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation or entity (irrespective of whether
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36
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability company,
partnership, joint venture, or other entity, or (c) the beneficial interest in
such trust or estate, is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries; provided that (i) the Canadian
Borrower will not be considered to be a Subsidiary of the U.S. Borrower, except
for purposes of the definition herein of "Consolidated Subsidiaries", (ii)
unless CBR becomes a Wholly-Owned Subsidiary of either Borrower, neither CBR
nor any of the CBR Subsidiaries will be considered to be a Subsidiary of either
Borrower, except for purposes of the first two sentences of Section 4.01(g),
Sections 4.01(h) and 4.01(n) and the definitions herein of "Consolidated
Subsidiaries", "Dividend Restricted Subsidiary" and "Upstream Owner" and (iii)
unless NML becomes a Wholly-Owned Subsidiary of either Borrower, neither NML
nor any of the NML Subsidiaries will be considered to be a Subsidiary of the
U.S. Borrower, except for purposes of the first sentence of Section 4.01(g),
Sections 4.01(h) and 4.01(n) and the definitions herein of "Consolidated
Subsidiaries", "Dividend Restricted Subsidiary" and "Upstream Owner".
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means March 31, 2002, or the earlier date of
termination in whole of the Commitments pursuant to Section 2.04 or Section
6.01.
"Termination Event" means (i) a "reportable event", as such term is
described in Section 4043 of ERISA and the regulations issued thereunder (other
than a "reportable event" not subject to the provision for 30-day notice to the
PBGC), or an event described in Section 4062(e) of ERISA, (ii) the distribution
of a notice of intent to terminate a Plan under Section 4041(c) of ERISA or the
treatment of a Plan amendment as a termination under Section 4041(c) of ERISA,
(iii) the institution of proceedings to terminate a Plan by the PBGC under
Section 4042 of ERISA, or (iv) any other event or condition which is reasonably
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan.
"Total Capitalization" means at any date the sum of Total Consolidated
Debt at such date plus Consolidated Tangible Net Worth at such date.
"Total Consolidated Debt" means at any date the sum, without duplication,
of the following at such date:
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37
(a) indebtedness for borrowed money of the U.S. Borrower and
the Consolidated Subsidiaries determined in accordance with GAAP (including
Debt referred to in any of clauses (i), (ii), (iii), (vi) and (x) of the
definition herein of "Debt", to the extent such Debt would be included as
indebtedness of the U.S. Borrower or any of the Consolidated Subsidiaries in
accordance with GAAP), plus
(b) all obligations of the U.S. Borrower and the Consolidated
Subsidiaries under Capitalized Leases determined in accordance with GAAP, plus
(c) the aggregate principal amount of all accounts
receivables sold by the U.S. Borrower or any Consolidated Subsidiary from time
to time net of all collections received on, and write-offs in accordance with
GAAP of, such accounts receivable, plus
(d) the liability or contingent liability of the U.S.
Borrower and the Consolidated Subsidiaries pursuant to Prepaid Forward Sales
Agreements (other than Permitted Prepaid Forward Sales) as determined in
accordance with GAAP, plus
(e) the liability of the U.S. Borrower and the Consolidated
Subsidiaries referred to in clause (x) of the definition herein of "Debt" (to
the extent not included pursuant to clause (a) of this definition), plus
(f) the present value (discounted at the per annum interest
rate on five-year U.S. treasury notes at the date of determination) of
operating lease payments in excess of U.S. $10,000,000 in any year for which
the U.S. Borrower or any of the Consolidated Subsidiaries is liable, plus
(g) guaranties by the U.S. Borrower or any of the
Consolidated Subsidiaries of the obligations of Persons other than any
Consolidated Subsidiary; provided that the guaranty by NML set forth in the
Completion Agreement executed in 1995 among NML, The RTZ Corporation PLC, The
Independent State of Papua New Guinea, as sponsors, and Union Bank of
Switzerland, as agent, guaranteeing debt associated with the Lihir project will
not be considered "Total Consolidated Debt" unless NML is required to
consolidate any such debt on its balance sheet; plus
(h) guaranties by the U.S. Borrower or any of the
Consolidated Subsidiaries of the obligations of any Consolidated Subsidiary of
any type referred to in any of paragraphs (a), (b), (c), (d) and (e) of this
definition to the extent such obligations are not already included in Total
Consolidated Debt pursuant to such paragraphs, plus
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38
(i) Debt of the U.S. Borrower or any of the Consolidated
Subsidiaries referred to in clause (viii) of the definition herein of "Debt".
"Unused Commitment" means, with respect to any Bank at any time, (i) such
Bank's Commitment at such time minus (ii) the sum of the aggregate outstanding
principal amount of all Advances owed to such Bank at such time plus the
aggregate Face Amount of all BA Obligations purchased and/or accepted by such
Bank (in its capacity as a Bank) outstanding at such time (in the case of BA
Obligations and Canadian Advances, the amount thereof shall be the then U.S.
Dollar Equivalent thereof). All determinations pertaining to the Unused
Commitment of any Bank shall be made in U.S. Dollars.
"Upstream Owner" of any Person means any other Person that directly or
indirectly owns (whether through any Subsidiary or otherwise) any capital stock
of, interest in the capital or profits of, or beneficial interest in, such
first Person.
"U.S. Administrative Agent" means Citibank in its capacity as U.S.
Administrative Agent pursuant to Article VII and any successor in such capacity
pursuant to Section 7.06.
"U.S. Advance" means an advance by a U.S. Bank to the U.S. Borrower
pursuant to Section 2.01 and refers to a Base Rate Advance, a CD Rate Advance
or a Eurodollar Rate Advance (each of which shall be a "U.S. Type" of U.S.
Advance).
"U.S. Bank" means each Bank listed under the heading "U.S. Banks" on
Schedule II or identified as a U.S. Bank in the Assignment and Acceptance
pursuant to which such Bank became a Bank, as the case may be, in each case in
its capacity as such.
"U.S. Borrower" means Battle Mountain Gold Company, a Nevada corporation.
"U.S. Borrowing" means a borrowing consisting of U.S. Advances of the same
U.S. Type made on the same day by the Banks pursuant to Section 2.01 and, in
the case of CD Rate Advances and Eurodollar Rate Advances, having Interest
Periods of the same duration.
"U.S. Business Day" means a day (other than a Saturday or Sunday) of the
year on which banks are not required or authorized by law to close in New York
City and, if the applicable U.S. Business Day relates to any Eurodollar Rate
Advance, on which dealings in U.S. Dollar deposits are carried on in the London
interbank market.
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39
"U.S. Dollar Equivalent" of any Canadian Dollar amount means, on any date
of determination, the U.S. Dollar equivalent of such Canadian Dollar amount
determined by the U.S. Administrative Agent by using the quoted spot rate at
which Citibank's principal office in Toronto offers to exchange U.S. Dollars
for Canadian Dollars in Toronto at 11:00 a.m. (New York City time) on such
date, which determination shall be conclusive in the absence of manifest error,
or if such principal office is not then quoting such a rate, then such rate as
shown on page BOFC of the Reuters screen at such time on such date.
"U.S. Domestic Lending Office" means, with respect to any U.S. Bank, the
office of such Bank specified as its "U.S. Domestic Lending Office" opposite
its name on Schedule II hereto or in the Assignment and Acceptance pursuant to
which it became a Bank, or such other office of such Bank as such Bank may from
time to time specify to the U.S. Borrower and the U.S. Administrative Agent.
"U.S. Note" means a promissory note of the U.S. Borrower payable to the
order of any U.S. Bank, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the U.S. Borrower to such Bank
resulting from the U.S. Advances owing to such Bank.
"U.S. Percentage" has the meaning specified in Section 2.16.
"U.S. Reference Banks" means Citibank and Canadian Imperial Bank of
Commerce.
"U.S. Type" has the meaning specified in the definition of U.S. Advance.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of which (or in
which) 100% (including options, warrants and other rights to acquire) of (a) if
such Subsidiary is a corporation, the issued and outstanding capital stock
having ordinary voting power to elect the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) if such Subsidiary is a limited liability
company, partnership or joint venture, the interest in the capital and
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profits of such limited liability company, partnership or joint venture or (c)
if such Subsidiary is a trust or estate, the beneficial interest in such trust
or estate, is at the time directly or indirectly owned by such Person, by such
Person and one or more of its other Wholly-Owned Subsidiaries or by one or more
of such Person's other Wholly-Owned Subsidiaries.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E
of Title IV of ERISA.
Section 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
Section 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
Section 1.04. Miscellaneous. The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, Schedule and Exhibit references are to
Articles and Sections of and Schedules and Exhibits to this Agreement, unless
otherwise specified. The term "including" shall mean "including, without
limitation,".
Section 1.05. Ratings. A rating, whether public or private, by S&P or
Xxxxx'x shall be deemed to be in effect on the date of announcement or
publication by S&P or Xxxxx'x, as the case may be, of such rating or, in the
absence of such announcement or publication, on the effective date of such
rating and will remain in effect until the announcement or publication of, or
(in the absence of such announcement or publication) the effective date of, any
change in such rating. In the event the standards for any rating by Xxxxx'x or
S&P are revised, or such rating is designated differently (such as by changing
letter designations to numerical designations), then the references herein to
such rating shall be deemed to refer to the revised or redesignated rating for
which the standards are closest to, but not lower than, the standards at the
date hereof for the rating which has been revised or redesignated, all as
determined by the Required Banks in good faith. Long-term debt or preferred
stock supported by a letter of credit, guaranty or other similar credit
enhancement mechanism shall not be considered as unsecured long-term debt or
preferred stock, as the case may be, for purposes of ratings by S&P or Xxxxx'x.
If either Xxxxx'x or S&P has at any time more than one rating applicable to
senior
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unsecured long-term debt, subordinated unsecured long-term debt or preferred
stock of any Person, the lowest such rating shall be applicable for purposes
hereof. For example, if Xxxxx'x rates some senior unsecured long-term debt of
the U.S. Borrower Baa2 and other such debt of the U.S. Borrower Baa3, the
senior unsecured long-term debt of the U.S. Borrower shall be deemed to be
rated Baa3 by Xxxxx'x.
Section 1.06. "Knowledge" and "Dispositions". As used herein,
"knowledge" of either Borrower shall mean the knowledge of any officer of such
Borrower. As used herein, "dispose" and "disposition" shall include, without
limitation, any disposition by merger, consolidation or amalgamation.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND DRAWINGS
Section 2.01. The Advances; Drawings. (a) Each U.S. Bank severally
agrees, on the terms and conditions hereinafter set forth, to make U.S.
Advances in U.S. Dollars to the U.S. Borrower from time to time on any U.S.
Business Day during the period from the date hereof until the Termination Date
in an amount for each such Advance not to exceed such Bank's Unused Commitment
at such time. Each U.S. Borrowing shall be in an aggregate amount of U.S.
$10,000,000 or an integral multiple of U.S. $10,000,000 in excess thereof,
except that a U.S. Borrowing comprised of Base Rate Advances may be in an
amount of U.S. $1,000,000 or an integral multiple of U.S. $1,000,000 in excess
thereof, and shall consist of U.S. Advances of the same U.S. Type made on the
same day by the U.S. Banks ratably according to their respective Commitments.
Within the limits set forth herein, the U.S. Borrower may borrow, prepay
pursuant to Section 2.09 and reborrow under this Section 2.01(a) or draw under
Section 2.01(c).
(b) Each Canadian Bank severally agrees, on the terms and conditions
hereinafter set forth, to make Canadian Advances in Canadian Dollars to the
Canadian Borrower from time to time on any Canadian Business Day during the
period from the date hereof until the Termination Date in an amount for each
such Advance (determined on the basis of the U.S. Dollar Equivalent thereof)
not to exceed such Bank's Unused Commitment at such time. Each Canadian
Borrowing shall be in an aggregate amount of C$1,000,000 or an integral
multiple of C$100,000 in excess thereof, and shall consist of Canadian Prime
Rate Advances made on the same day by the Canadian Banks ratably according to
their respective Commitments. Within the limits set forth herein, the Canadian
Borrower may borrow, prepay pursuant to Section 2.09 and reborrow under this
Section 2.01(b).
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(c) Each Canadian Bank that is able to complete and accept bankers'
acceptances in Canada severally agrees, on the terms and conditions hereinafter
set forth, to accept Drafts (each Draft so accepted, a "Bankers' Acceptance")
for the account of the Canadian Borrower, and to purchase such Bankers'
Acceptances from time to time on any Canadian Business Day during the period
from the date hereof until the Termination Date having a Face Amount
(determined on the basis of the U.S. Dollar Equivalent thereof) for all such
Bankers' Acceptances purchased by such Bank at the time of such Drawing not to
exceed such Bank's Unused Commitment at such time. Each Canadian Bank that is
unable to complete and accept bankers' acceptances in Canada severally agrees,
on the terms and conditions hereinafter set forth, to purchase completed Drafts
(which have not been and will not be accepted by such Bank or any other Person)
(each, a "BA Equivalent Note") for the account of the Canadian Borrower from
time to time on any Canadian Business Day during the period from the date
hereof until the Termination Date having a Face Amount (determined on the basis
of the U.S. Dollar Equivalent thereof) for all such BA Equivalent Notes
purchased by such Bank at the time of such Drawing not to exceed such Bank's
Unused Commitment at such time. Each Drawing shall be comprised solely of
Canadian Dollars, shall be in an aggregate Face Amount which, together with any
Canadian Prime Rate Advances made in connection with such Drawing, equals
C$10,000,000 or an integral multiple of C$100,000 in excess thereof and shall
consist of the creation and purchase of Bankers' Acceptances or the purchase of
BA Equivalent Notes at or about the same time by the Canadian Banks ratably in
accordance with their respective Commitments. Within the limits set forth
herein, amounts drawn by the Canadian Borrower under this Section 2.01(c) and
repaid from time to time may be redrawn by the Canadian Borrower under this
Section 2.01(c) or borrowed under Section 2.01(b).
(d) Notwithstanding any other provision in this Agreement, at
no time shall there be more than eight Borrowings and Drawings outstanding;
provided that for the purposes of this Section 2.01(d), any one or more Base
Rate Advances that are outstanding at any one time collectively shall count as
a single Borrowing, and any one or more Canadian Prime Rate Advances that are
outstanding at any one time collectively shall count as a single Borrowing.
Section 2.02. Making the Advances. (a) Each U.S. Borrowing shall be
made on notice (a "Notice of U.S. Borrowing"), given not later than (i) 10:00
A.M. (New York City time) on the date of a proposed U.S. Borrowing comprised of
Base Rate Advances and (ii) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of a proposed U.S. Borrowing comprised of
Eurodollar Rate Advances or CD Rate Advances,
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by the U.S. Borrower to the U.S. Administrative Agent, which shall give to each
U.S. Bank prompt notice thereof by telecopier. Each Notice of U.S. Borrowing
shall be by telecopier, in substantially the form of Exhibit C, specifying
therein the requested (i) date of such U.S. Borrowing, (ii) U.S. Type of
Advances comprising such U.S. Borrowing (which shall be Base Rate Advances, CD
Rate Advances or Eurodollar Rate Advances), (iii) aggregate amount of such U.S.
Borrowing, and (iv) if such U.S. Borrowing is to be comprised of Eurodollar
Rate Advances or CD Rate Advances, the initial Interest Period for each such
Advance. Each Bank shall, before 12:00 noon (New York City time) on the date
of such U.S. Borrowing, make available for the account of its Applicable
Lending Office to the U.S. Administrative Agent at its address referred to in
Section 8.02, in same day funds, such Bank's ratable portion of such U.S.
Borrowing in U.S. Dollars. Promptly after (i) the U.S. Administrative Agent's
receipt of such funds and (ii) fulfillment of the applicable conditions set
forth in Article III (which fulfillment the U.S. Administrative Agent may
assume in the absence of actual knowledge, or notice received from either
Borrower or the Required Banks, to the contrary), the U.S. Administrative Agent
will make such funds available to the U.S. Borrower at an account in the United
States designated by the U.S. Borrower in the Notice of U.S. Borrowing or, if
the U.S. Borrower does not so designate, the U.S. Administrative Agent's
aforesaid address.
(b) Each Canadian Borrowing shall be made on notice (a
"Notice of Canadian Borrowing"), given not later than 11:00 A.M. (New York City
time) on the first Canadian Business Day prior to the date of a proposed
Canadian Borrowing, by the Canadian Borrower to the U.S. Administrative Agent,
which shall give to each Canadian Bank and the Canadian Administrative Agent
prompt notice thereof by telecopier. Each Notice of Canadian Borrowing shall
be by telecopier, in substantially the form of Exhibit D, specifying therein
the requested (i) date of such Canadian Borrowing, and (ii) aggregate amount of
such Canadian Borrowing. Each Bank shall, before 12:00 noon (New York City
time) on the date of such Canadian Borrowing, make available for the account of
its Applicable Lending Office to the Canadian Administrative Agent at its
address referred to in Section 8.02, in same day funds, such Bank's ratable
portion of such Canadian Borrowing in Canadian Dollars. Promptly after (i) the
Canadian Administrative Agent's receipt of such funds and (ii) fulfillment of
the applicable conditions set forth in Article III (which fulfillment the
Canadian Administrative Agent may assume in the absence of actual knowledge, or
notice received from either Borrower or the Required Banks, to the contrary),
the Canadian Administrative Agent will make such funds available to the
Canadian Borrower at an account in Canada designated by the Canadian Borrower
in the Notice of Canadian Borrowing or, if the Canadian Borrower does not so
designate, the Canadian Administrative Agent's aforesaid address.
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(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrowers. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances or CD Rate
Advances, the U.S. Borrower shall indemnify each Bank against any loss, cost or
expense actually incurred by such Bank as a result of any failure by the U.S.
Borrower to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable conditions set forth in Article III,
including any loss (excluding loss of anticipated profits), cost or expense
actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund the Advance to be made by such Bank
as part of such Borrowing when such Advance, as a result of such failure, is
not made on such date.
(d) Unless the Administrative Agent to which a Notice of U.S.
Borrowing or a Notice of Canadian Borrowing has been given shall have received
notice from a Bank prior to the date of any Borrowing that such Bank will not
make available to such Administrative Agent such Bank's ratable portion of such
Borrowing, such Administrative Agent may assume that such Bank has made such
portion available to such Administrative Agent on the date of such Borrowing in
accordance with this Section 2.02 and such Administrative Agent may, in
reliance upon such assumption, make available to the appropriate Borrower on
such date a corresponding amount. If and to the extent that such Bank shall
not have so made such ratable portion available to such Administrative Agent,
such Bank and the Borrower receiving such corresponding amount severally agree
to repay to such Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to such Borrower until the date such amount is repaid to such
Administrative Agent, at (i) in the case of such Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Bank, (a) if such Borrowing is a U.S. Borrowing, the Federal Funds
Rate and (b) if such Borrowing is a Canadian Borrowing, the Canadian Interbank
Rate. If such Bank shall repay to such Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Advance as part of
such Borrowing for all purposes.
(e) The failure of any Bank to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Bank shall be responsible for the failure of any other Bank
to make the Advance to be made by such other Bank on the date of any Borrowing.
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(f) The indebtedness of the U.S. Borrower to each U.S. Bank
resulting from Advances owing to such Bank shall be evidenced by a U.S. Note
payable to the order of such Bank in substantially the form of Exhibit A. The
indebtedness of the Canadian Borrower to each Canadian Bank resulting from
Advances owing to such Bank shall be evidenced by a Canadian Note payable to
the order of such Bank in substantially the form of Exhibit B.
Section 2.03. Drawings of BA Obligations. (a) Each Drawing shall be
made on notice, given not later than 12:00 noon (New York City time) on the
third Canadian Business Day prior to the date of the proposed Drawing, by the
Canadian Borrower to the U.S. Administrative Agent, which shall give the
Canadian Administrative Agent and each Canadian Bank prompt notice thereof by
telecopier. Each notice of a Drawing (a "Notice of Drawing") shall be by
telecopier, in substantially the form of Exhibit L, specifying therein the
requested (i) date of such Drawing (which shall be a Canadian Business Day),
(ii) aggregate Face Amount of such Drawing, and (iii) the Maturity Date for
each BA Obligation comprising part of such Drawing. Each Draft and BA
Equivalent Note in connection with any requested Drawing (A) shall be in an
amount of C$100,000 or an integral multiple of C$100,000 in excess thereof, and
(B) shall be dated the date of the proposed Drawing. In the event that the
Face Amount of any Drawing requested by the Canadian Borrower pursuant to any
Notice of Drawing is an amount which, if divided ratably among the Canadian
Banks would not result in each Canadian Bank accepting a Draft or purchasing a
BA Equivalent Note which has an undiscounted face amount equal to C$100,000 or
an integral multiple of C$100,000 in excess thereof, then notwithstanding any
provision in this Agreement to the contrary, the Canadian Administrative Agent
is authorized by the Canadian Borrower and the Canadian Banks to allocate among
the Canadian Banks, the Drafts to be accepted and purchased and BA Equivalent
Notes to be purchased in such manner and amounts as the Canadian Administrative
Agent may, in its sole discretion, acting reasonably, consider necessary,
rounding up or down, so as to ensure that no Canadian Bank is required to
accept a Draft for a fraction of $100,000 and, in such event, the Canadian
Banks' ratable share with respect to such Drafts and BA Equivalent Notes shall
be adjusted accordingly; provided that no Canadian Bank shall be required to
purchase any Bankers' Acceptance or BA Equivalent Note to the extent that the
Face Amount thereof exceeds its then Unused Commitment and such Canadian Bank
shall fund any portion of its allocated share in excess of its Bankers'
Acceptance or BA Equivalent Note in the form of a Canadian Prime Rate Advance,
which shall for all purposes be deemed to be a Canadian Borrower Advance made
pursuant to Section 2.01(b). Each Canadian Bank shall, before 12:00 noon (New
York City time) on the date of each Drawing, (1) in the case of each Canadian
Bank able to complete and accept bankers' acceptances in Canada, complete one
or more
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Drafts in accordance with the related Notice of Drawing, accept such Drafts and
purchase the Bankers' Acceptances created thereby for the Drawing Purchase
Price, or (2) in the case of each Canadian Bank that is not able to complete
and accept bankers' acceptances in Canada, complete one or more BA Equivalent
Notes in accordance with the related Notice of Drawing and purchase such
completed BA Equivalent Notes for the Drawing Purchase Price, and, in any case,
shall, before 12:00 noon (New York City time) on such date, make available for
the account of its Applicable Lending Office to the Canadian Administrative
Agent at its address referenced to in Section 8.02, in same day funds, the
Drawing Purchase Price payable by such Bank for such Drawing less the Drawing
Fee payable to such Bank with respect thereto under Section 2.06(d). Promptly
after the fulfillment of the applicable conditions set forth in Article III
(which fulfillment the Canadian Administrative Agent may assume in the absence
of actual knowledge, or notice received from either Borrower or the Required
Banks, to the contrary), the Canadian Administrative Agent will make the funds
it has received from the Canadian Banks available to the Canadian Borrower at
an account in Canada designated by the Canadian Borrower in the Notice of
Canadian Borrowing or, if the Canadian Borrower does not so designate, the
Canadian Administrative Agent's aforesaid address.
(b) Anything in Section 2.03(a) to the contrary
notwithstanding, the Canadian Borrower may not select a Drawing if the
obligation of the Canadian Banks to purchase Bankers' Acceptances shall then be
suspended pursuant to Section 2.03(d), Section 2.08 or Section 2.14.
(c) Each Notice of Drawing shall be irrevocable and binding
on the Canadian Borrower. In the case of any proposed Drawing, the Canadian
Borrower shall indemnify each Canadian Bank against any loss, cost or expense
actually incurred by such Bank as a result of any failure by the Canadian
Borrower to fulfill on or before the date specified in the Notice of Drawing
for such Drawing the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense actually incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund the Drawing Purchase
Price to be paid by such Bank as part of such Drawing when, as a result of such
failure, such Drawing is not made on such date.
(d) (i) If, with respect to any proposed Drawing, the
Canadian Administrative Agent determines in good faith that circumstances
affecting the money markets at the time any related Notice of Drawing is
delivered or is outstanding will result in no market for the Bankers'
Acceptances to be created in connection with such Drawing or an insufficient
demand for such Bankers' Acceptances to allow the Banks
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creating such Bankers' Acceptances to sell or trade the Bankers' Acceptances to
be created and purchased or discounted by them hereunder in connection with
such Drawing, then, upon notice to the Canadian Borrower and the Canadian Banks
thereof, (A) the Drawing requested therein shall not be made and the Notice of
Drawing with respect to such proposed Drawing shall be deemed to be a Notice of
Canadian Borrowing requesting a Canadian Borrowing in an amount equal to the
requested Face Amount of such Drawing and (B) the right of the Canadian
Borrower to request a Drawing, and the obligation of the Canadian Banks to
complete and accept Drafts and/or to purchase Bankers' Acceptances or BA
Equivalent Notes, shall be suspended until the Canadian Administrative Agent
shall notify such Borrower that the circumstances causing such suspension no
longer exist.
(ii) Upon the occurrence and during the continuance of
any Event of Default under Section 6.01(a) or Section 6.01(e), the obligation
of the Canadian Banks to purchase and/or accept BA Obligations, and the right
of the Canadian Borrower to request a Drawing, shall be suspended.
(e) Unless the Canadian Administrative Agent shall have
received notice from a Canadian Bank prior to the date of any Drawing that such
Bank will not make available to it such Bank's ratable share of such Drawing in
accordance with Section 2.03(a), such Administrative Agent may assume that such
Bank has made such ratable share available to it on the date of such Drawing in
accordance with Section 2.03(a) and such Administrative Agent may, in reliance
upon such assumption, make available to the Canadian Borrower on such date a
corresponding amount. If and to the extent that any such Bank shall not have
so made such ratable share available to the Canadian Administrative Agent, such
Bank and the Canadian Borrower severally agree to repay to the Canadian
Administrative Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to such Administrative
Agent, at (i) in the case of the Canadian Borrower, a rate per annum equal to
the annual yield resulting from application of the Bankers' Acceptance Rate
used in calculating the Drawing Purchase Price with respect to such Drawing,
and (ii) in the case of such Bank, the Canadian Interbank Rate. If such Bank
shall pay to the Canadian Administrative Agent such corresponding amount, such
amount so paid shall constitute such Bank's BA Obligation as part of such
Drawing for all purposes under this Agreement.
(f) To enable the Canadian Banks to create Bankers'
Acceptances or to complete BA Equivalent Notes in accordance with Section
2.01(c) and this Section 2.03, the Canadian Borrower shall supply each Canadian
Bank, (i) upon the Canadian
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Borrower's execution of this Agreement, with such number of Drafts and signed
blank BA Equivalent Notes provided to the Canadian Borrower by the Canadian
Administrative Agent as the Canadian Administrative Agent may reasonably
request and (ii) after the date hereof, such number of Drafts and signed blank
BA Equivalent Notes provided to the Canadian Borrower by the Canadian
Administrative Agent as the Canadian Administrative Agent may from time to time
reasonably request, in each case duly endorsed and executed on behalf of the
Canadian Borrower by any one or more of its duly authorized officers. Each
Canadian Bank shall exercise such care in the custody and safekeeping of any
Drafts and BA Equivalent Notes in its possession from time to time as it would
exercise in the custody and safekeeping of similar property owned by it. The
signatures of officers of the Canadian Borrower on Drafts and BA Equivalent
Notes may be mechanically reproduced in facsimile and Bankers' Acceptances and
BA Equivalent Notes bearing such facsimile signatures shall be binding upon the
Canadian Borrower as if they had been manually signed by such officers.
Notwithstanding that any of the individuals whose manual or facsimile signature
appears on any Draft or BA Equivalent Note as one of such officers may no
longer hold office at the date of such draft or at the date of its acceptance
by a Bank hereunder or at any time thereafter, any Draft or Bankers' Acceptance
or BA Equivalent Note so signed shall be valid and binding upon, and
enforceable against, the Canadian Borrower.
(g) Bankers' Acceptances purchased by a Canadian Bank in
accordance with the terms of Section 2.01(c), Section 2.03 or Section 2.19 may,
in such Bank's sole discretion, be held by such Bank for its own account until
the applicable Maturity Date or sold, rediscounted or otherwise disposed of by
it at any time prior thereto in any relevant market therefor.
(h) The failure of any Canadian Bank to fund the Drawing
Purchase Price to be funded by it as part of any Drawing shall not relieve any
other Canadian Bank of its obligation hereunder to fund its Drawing Purchase
Price on the date of such Drawing, but no Canadian Bank shall be responsible
for the failure of any other Canadian Bank to fund the Drawing Purchase Price
to be funded by such other Canadian Bank on the date of any Drawing.
Section 2.04. Fees; Reduction of Commitments. (a) The U.S. Borrower
agrees to pay to the U.S. Administrative Agent for the account of each U.S.
Bank a commitment fee on the average daily Unused Commitment of such U.S. Bank.
The Canadian Borrower agrees to pay to the Canadian Administrative Agent for
the account of each Canadian Bank a commitment fee on the average daily Unused
Commitment of such Canadian Bank. In each case payment of commitment fees will
be in respect of the
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relevant Bank's Unused Commitment from the date hereof in the case of each Bank
listed on the signature pages hereof and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Bank in the case of
each other Bank until the Termination Date, payable quarterly in arrears on the
last day of each March, June, September and December hereafter, commencing June
30, 1997, and on the Termination Date, at a rate per annum equal to the
Applicable Commitment Fee Rate in effect from time to time.
(b) Each Borrower agrees to pay to the U.S. Administrative
Agent, for its sole account, such fees as have been agreed to in a separate fee
letter dated October 23, 1996 among the U.S. Administrative Agent and the
Borrowers. Each Borrower additionally agrees to pay to each Administrative
Agent, for its sole account, such additional fees, if any, as may be agreed to
from time to time by such Borrower and such Administrative Agent, but agreement
to any such additional fees shall be in the sole discretion of each of the
Borrowers and such Administrative Agent.
(c) The Borrowers shall have the right, upon at least three
Canadian Business Days' notice to the U.S. Administrative Agent from both
Borrowers, to terminate in whole or reduce in part the Unused Commitments;
provided that (i) each partial reduction shall be in the aggregate amount of
U.S. $5,000,000 or an integral multiple of U.S. $1,000,000 in excess thereof,
and (ii) each termination or partial reduction of the Unused Commitments shall
reduce ratably the Maximum Commitments of (a) the U.S. Banks by an aggregate
amount equal to the amount of such termination or partial reduction, and (b)
the Canadian Banks by an aggregate amount equal to the amount of such
termination or partial reduction. Any such termination or reduction shall be
permanent.
(d) Upon the termination of all the Commitments (other than
pursuant to Section 6.01) and provided that (i) there are no Advances, accrued
interest thereon or fees then outstanding, (ii) all BA Obligations then
outstanding have been cash collateralized in an amount equal to 100% of the
Face Amount of such BA Obligations pursuant to and in accordance with Section
2.09(b)(ii) and Section 5.01(n) (or, if requested by the Required Banks, are
backed by a letter of credit in favor of the Canadian Administrative Agent (for
the ratable benefit of the Canadian Banks) issued by any bank named in Schedule
I to the Bank Act (Canada) in the amount of 100% of the Face Amount of such BA
Obligations), (iii) the Canadian Borrower shall remain liable in respect of
such BA Obligations and (iv) the U.S. Borrower shall remain liable therefor
under the Guaranty, then this Agreement and the other Loan Documents shall be
terminated (other than Sections 2.11, 2.12, 5.01(n) and 8.04 and any obligation
to pay any
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other amount payable on the date so terminated).
Section 2.05. Repayment of Obligations. (a) The U.S. Borrower shall
repay the principal amount of each U.S. Advance owing to each Bank on March 31,
2002 or on such earlier date as may be applicable pursuant hereto. The
Canadian Borrower shall repay the principal amount of each Canadian Advance
owing to each Bank on March 31, 2002 or on such earlier date as may be
applicable pursuant hereto.
(b) The Canadian Borrower shall, subject to Sections 2.19(a)
and 2.19(b), pay to the Canadian Administrative Agent for the ratable account
of the Canadian Banks on the Maturity Date of any BA Obligations an amount
equal to the sum of (1) the aggregate Face Amount of all such BA Obligations
maturing on such date and (2) the aggregate principal amount of all Canadian
Prime Rate Advances made pursuant to Section 2.03(a) or Section 2.19 in
connection with the Drawing of such BA Obligations. Any payment by the
Canadian Borrower of any BA Obligations in accordance with this Section 2.05(b)
shall, to the extent of such payment, satisfy the obligations of the Canadian
Borrower under the BA Obligations to which it relates and, in the case of a
Bankers' Acceptance, the Bank that has accepted such Bankers' Acceptance shall,
to the extent of such payment to such Bank, thereafter be solely responsible
for the payment thereof.
(c) The Canadian Borrower shall, on each Canadian Business
Day on which notice is given by the U.S. Administrative Agent that a prepayment
under this Section 2.05(c) is required, prepay (ratably among the Canadian
Banks) an aggregate principal amount (or an aggregate Face Amount) of the
Accommodations outstanding to such Borrower comprising part of the same
Borrowings or Drawings, as the case may be, equal to the amount by which (A)
the sum of (x) the aggregate principal amount of the Advances outstanding to
such Borrower plus (y) the aggregate Face Amount of the BA Obligations then
outstanding exceeds (B) the aggregate Commitments of the Canadian Banks on such
Business Day (after giving effect to any permanent reduction thereof on or
prior to such Business Day pursuant to Section 2.04(c) and after giving effect
to any Designation Notice that becomes effective on or prior to such Business
Day). For purposes of determining the principal amount of any outstanding
Accommodations denominated in Canadian Dollars, such amounts shall be
calculated by the U.S. Administrative Agent (and each such calculation shall be
conclusive for purposes hereof, absent manifest error) on the basis of the U.S.
Dollar Equivalent thereof, and it is expressly understood and agreed that
fluctuations in currency exchange rates will result in mandatory prepayments
hereunder to the extent any such fluctuation results in the aggregate amount of
outstanding Accommodations to the Canadian Borrower
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measured in U.S. Dollars being in excess of the amounts contemplated above
measured in U.S. Dollars.
Section 2.06. Interest; Drawing Fees. (a) The U.S. Borrower shall pay
interest on the unpaid principal amount of each U.S. Advance from the date of
such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of the Base Rate
in effect from time to time plus the Applicable Margin in effect from time to
time for Base Rate Advances, payable quarterly in arrears on the last day of
each March, June, September and December and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin in effect from time to time for
Eurodollar Rate Advances, payable on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on each day
that occurs during such Interest Period every three months from the first day
of such Interest Period and on the date such Advance shall be Converted or paid
in full.
(iii) During such periods as such Advance is a CD Rate
Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of the Adjusted CD Rate for such Interest Period plus
the Applicable Margin in effect from time to time for Adjusted CD Rate
Advances, payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than 90 days, on each day that occurs during such
Interest Period every 90 days from the first day of such Interest Period and on
the date such Advance shall be Converted or paid in full.
(b) The Canadian Borrower shall pay interest on the unpaid
principal amount of each Canadian Advance from the date of such Advance until
such principal amount shall be paid in full, at a rate per annum equal at all
times to the sum of the Canadian Prime Rate in effect from time to time plus
the Applicable Margin in effect from time to time for Canadian Prime Rate
Advances, payable quarterly in arrears on the last day of each March, June,
September and December and on the date such Canadian Prime Rate Advance shall
be Converted or paid in full.
(c) The U.S. Borrower shall pay interest, to the fullest
extent permitted
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by law, on the amount of any interest, fee, cost or other obligation (other
than principal of Advances) payable hereunder by it that is not paid when due,
from the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to the sum of the Base Rate in effect
from time to time plus 2% per annum. The Canadian Borrower shall pay interest,
to the fullest extent permitted by law, on the amount of any interest, fee,
cost or other obligation (other than principal of Advances) payable hereunder
by it that is not paid when due, from the date such amount shall be due until
such amount shall be paid in full, payable in arrears on the date such amount
shall be paid in full and on demand, at a rate per annum equal at all times to
the sum of the Canadian Prime Rate in effect from time to time plus 2% per
annum.
(d) The Canadian Borrower shall, on the date of each Drawing
of, on the date of any Conversion into, and on the date of each renewal of any
outstanding, BA Obligations, pay to the Canadian Administrative Agent, in
Canadian Dollars, for the ratable account of the Canadian Banks accepting
Drafts and purchasing Bankers' Acceptances or BA Equivalent Notes, the Drawing
Fee with respect to such BA Obligations. The Canadian Borrower irrevocably
authorizes each such Bank to deduct the Drawing Fee payable with respect to
each BA Obligation of such Bank from the Drawing Purchase Price payable by such
Bank in respect of such BA Obligation in accordance with Section 2.03 and to
apply such amount so withheld to the payment of such Drawing Fee for the
account of the Canadian Borrower and, to the extent such Drawing Fee is so
withheld and legally permitted to be so applied, the Canadian Borrower's
obligations under the preceding sentence in respect of such Drawing Fee shall
be satisfied.
Section 2.07. Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Bank, so long as such Bank shall be required under
regulations of the Federal Reserve Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Advance of such Bank
during such periods as such Advance is a Eurodollar Rate Advance, from the date
of such Advance until such principal amount is paid in full, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the Eurodollar Rate for such Interest Period for such Eurodollar Rate Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
(expressed as a decimal) equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Bank for such Interest Period, payable on each date on which
interest is payable on such Eurodollar Rate Advance. Such additional interest
shall be determined by such Bank and notified to the Borrower through the U.S.
Administrative Agent.
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Section 2.08. Interest Rate Determination. (a) Each U.S. Reference
Bank agrees to make reasonable efforts to furnish to the U.S. Administrative
Agent timely information for the purpose of determining each Eurodollar Rate
and each Adjusted CD Rate. Each Canadian Reference Bank agrees to make
reasonable efforts to furnish to the Canadian Administrative Agent timely
information for the purpose of determining each Bankers' Acceptance Rate. If
any of the Reference Banks shall not furnish such timely information to the
appropriate Administrative Agent for the purpose of determining any such
interest rate, such Administrative Agent shall determine such interest rate on
the basis of timely information furnished by the remaining Reference Bank. The
U.S. Administrative Agent shall give prompt notice to the U.S. Borrower and the
U.S. Banks of the applicable interest rate determined by the U.S.
Administrative Agent for purposes of Section 2.06(a)(ii) or (a)(iii) and the
rate, if any, furnished by each U.S. Reference Bank for the purpose of
determining the interest rate under Section 2.06(a)(ii) or (a)(iii). The
Canadian Administrative Agent shall give prompt notice to the Canadian Borrower
and the Canadian Banks of each Bankers' Acceptance Rate determined by such
Administrative Agent for purposes hereof and the rate, if any, furnished by
each Reference Bank for the purpose of determining such Bankers' Acceptance
Rate.
(b) If none of the U.S. Reference Banks furnishes timely
information to the U.S. Administrative Agent for determining the Eurodollar
Rate or Adjusted CD Rate for any Eurodollar Rate Advances or CD Rate Advances,
as the case may be:
(i) the U.S. Administrative Agent shall forthwith
notify the U.S. Borrower and the U.S. Banks that the interest rate cannot
be determined for such Eurodollar Rate Advances or CD Rate Advances, as
the case may be,
(ii) each such Eurodollar Rate Advance or CD Rate
Advance, as the case may be, will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance, unless it shall be Converted in accordance with Section 2.15
to the other U.S. Type of Advance as to which the interest rate can be
determined), and
(iii) the obligation of the U.S. Banks to make
Eurodollar Rate Advances or CD Rate Advances, as the case may be, or to
Convert Advances into Eurodollar Rate Advances or CD Rate Advances, as the
case may be, shall be suspended until the U.S. Administrative Agent shall
notify the U.S. Borrower and the U.S. Banks that the circumstances causing
such suspension no longer exist
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(which the U.S. Administrative Agent agrees to do promptly following its
becoming aware that such circumstances no longer exist).
(c) If none of the Canadian Reference Banks furnishes timely
information to the Canadian Administrative Agent for determining the Bankers'
Acceptance Rate for any BA Obligations:
(i) the Canadian Administrative Agent shall
forthwith notify the Canadian Borrower and the Canadian Banks that the
interest rate cannot be determined for such BA Obligations, and
(ii) the obligation of the Canadian Banks to
complete and accept Drafts and/or to purchase Bankers' Acceptances or BA
Equivalent Notes, or to Convert Canadian Prime Rate Advances into BA
Obligations, as the case may be, shall be suspended until the Canadian
Administrative Agent shall notify the Canadian Borrower and the Canadian
Banks that the circumstances causing such suspension no longer exist
(which the Canadian Administrative Agent agrees to do promptly following
its becoming aware that such circumstances no longer exist).
(d) If, with respect to any Eurodollar Rate Advances, the
Required Banks notify the U.S. Administrative Agent (A) that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Required Banks of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period or (B) that U.S. Dollar
deposits for the relevant amounts and Interest Period for their respective
Advances are not available to them in the London interbank market, the U.S.
Administrative Agent shall forthwith so notify the U.S. Borrower and the U.S.
Banks, whereupon
(i) each Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or will Convert into a CD Rate Advance if such
Conversion has been requested in accordance with Section 2.15), and
(ii) the obligation of the Banks to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until
the U.S. Administrative Agent shall notify the U.S. Borrower and the U.S.
Banks that the circumstances causing such suspension no longer exist
(which the U.S. Administrative Agent agrees to do promptly following its
becoming aware that
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such circumstances no longer exist).
(e) If the U.S. Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances or CD Rate Advances in
accordance with the provisions contained in the definition of "Interest Period"
in Section 1.01, the U.S. Administrative Agent will forthwith so notify the
U.S. Borrower and the U.S. Banks and such Advances will automatically, on the
last day of the then existing Interest Period therefor, Convert into Base Rate
Advances (or if such Advances are then Base Rate Advances, will continue as
Base Rate Advances).
(f) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances or CD Rate Advances having the same Interest
Period (whether comprising one or more Borrowings) shall be reduced, by payment
or prepayment or otherwise, to less than U.S. $10,000,000, such Advances shall
automatically Convert into Base Rate Advances, and on and after such date the
right of the U.S. Borrower to Convert such Advances into Eurodollar Rate
Advances or CD Rate Advances, as the case may be, shall terminate, unless when
combined with other Base Rate Advances such Conversion meets the requirements
of Section 2.15.
(g) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a) or Section 6.01(e), (i) each Eurodollar
Rate Advance and each CD Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance,
and (ii) the obligation of the Banks to make, or to Convert Advances into,
Eurodollar Rate Advances or CD Rate Advances shall be suspended.
Section 2.09. Optional Prepayments. (a) Neither Borrower shall have
any right to prepay (other than prepayments required herein) any principal
amount of any Advance other than as provided in this Section 2.09. The U.S.
Borrower may, upon notice given to the U.S. Administrative Agent before 11:00
A.M. (New York City time) on the first Business Day prior to the date of
prepayment in the case of Base Rate Advances or upon at least three Business
Days' notice to the U.S. Administrative Agent in the case of Eurodollar Rate
Advances or CD Rate Advances, in each case stating the proposed date (which
shall be a Business Day) and aggregate principal amount of the prepayment, and
if such notice is given the U.S. Borrower shall, prepay the outstanding
principal amounts of the Advances comprising part of the same U.S. Borrowing in
whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided that (x) each partial
prepayment shall be in an aggregate principal amount of U.S. $5,000,000 (or, in
the case of a partial prepayment of a Borrowing
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comprised of Base Rate Advances, U.S. $1,000,000) or an integral multiple of
U.S. $1,000,000 in excess thereof, and after giving effect thereto no U.S.
Borrowing then outstanding shall have a principal amount of less than U.S.
$10,000,000 (or, in the case of a Borrowing comprised of Base Rate Advances,
U.S. $1,000,000); and (y) in the case of any such prepayment of a Eurodollar
Rate Advance or a CD Rate Advance, the U.S. Borrower shall be obligated to
reimburse the Banks in respect thereof pursuant to Section 8.04(b). The
Canadian Borrower may, upon notice given to the Canadian Administrative Agent
before 11:00 A.M. (New York City time) on the first Business Day prior to the
date of prepayment stating the proposed date (which shall be a Business Day)
and aggregate principal amount of the prepayment, and if such notice is given
the Canadian Borrower shall, prepay the outstanding principal amounts of the
Advances comprising part of the same Canadian Borrowing in whole or ratably in
part or the Canadian Prime Rate Advances made pursuant to Section 2.03 or
Section 2.19 in whole, in each case together with accrued interest to the date
of such prepayment on the principal amount prepaid; provided that, except in
the case of prepayments of the Canadian Prime Rate Advances made on any date
pursuant to Section 2.03 or Section 2.19, each partial prepayment shall be in
an aggregate principal amount of C$1,000,000 (calculated upon the exchange rate
in effect on the last day the Agent could have received an effective notice
applicable thereto) or, except in connection with a reduction of the
Commitments under Section 2.04 or redesignation under Section 2.16, an integral
multiple of C$100,000 in excess thereof; provided, further, that, after giving
effect thereto no Canadian Borrowing then outstanding shall have a principal
amount of less than C$1,000,000. BA Obligations may not be prepaid at any time
except as required by Section 2.05.
(b) Each prepayment pursuant to Section 2.09(a) or Section 2.05(c)
shall be allocated to the Advances or BA Obligations outstanding to the
Borrower making such prepayment and shall be applied to such Advances or BA
Obligations as directed by such Borrower so long as no Event of Default has
occurred and is continuing on the date of such prepayment and, if an Event of
Default has occurred and is continuing or such Borrower has not specified the
application of any such prepayment, shall be applied:
(i) in the case of Advances outstanding to the U.S. Borrower,
to prepay (ratably among the Banks holding such Advances) U.S. Borrower
Advances then outstanding comprising part of the same Borrowings until
such Advances are paid in full; and
(ii) in the case of Advances outstanding to the Canadian
Borrower or BA Obligations, first to prepay (ratably among the Banks
holding such Advances)
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Canadian Advances then outstanding comprising part of the same Borrowings
until such Advances are paid in full, and second deposited in the Canadian
Cash Collateral Account to cash collateralize 100% of the Face Amount of
all BA Obligations then outstanding. Upon the Maturity Date of any BA
Obligation, for which funds are on deposit in the Canadian Cash Collateral
Account, such funds shall be applied to reimburse the relevant Canadian
Banks.
(c) Any prepayment by the Canadian Borrower of any BA Obligations in
accordance with this Section 2.09 shall, upon the application thereof at the
applicable Maturity Date therefor, satisfy, to the extent of such application,
the obligations of the Canadian Borrower under such BA Obligations to which it
relates and, in the case of a Bankers' Acceptance, the Bank that has accepted
such Bankers' Acceptance shall thereafter, to the extent of such application,
be solely responsible for the payment thereof.
(d) All prepayments under this Section 2.09 shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid. If any payment made under this Section 2.09 on account of Eurodollar
Rate Advances, CD Rate Advances or BA Obligations is made other than on the
last day of the applicable Interest Period or Maturity Date therefor, as the
case may be, the relevant Borrower shall also pay any amounts owing pursuant to
Section 8.04(b).
Section 2.10. Payments and Computations. (a) Each Borrower shall make
each payment hereunder and under the Notes not later than 12:00 noon (New York
City time) on the day when due to the U.S. Administrative Agent (except that
(1) payments under Section 2.07 shall be paid directly to the Bank entitled
thereto and (2) payments by the Canadian Borrower shall be made to the Canadian
Administrative Agent at its address referred to in Section 8.02) at its address
referred to in Section 8.02 in same day funds (i) in the case of all payments
in respect of any BA Obligation or of principal of or interest on Canadian
Advances, in Canadian Dollars and (ii) in the case of all payments of principal
of and interest on U.S. Advances, fees, expenses, indemnities and other amounts
(except principal of and interest on Canadian Advances), in U.S. Dollars. The
appropriate Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest or
commitment fees ratably (except amounts payable pursuant to Section 2.11,
Section 2.12 or Section 8.04(b) and except that any Bank may receive less than
its ratable share of interest to the extent Section 8.06 is applicable to it)
to the Banks for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount payable to any Bank
to such Bank for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon acceptance by
the
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U.S. Administrative Agent of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 8.08(d), from
and after the effective date specified in such Assignment and Acceptance, the
appropriate Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Bank assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves. At the time of each payment by a Borrower in
respect of a BA Obligation or of any principal of or interest on any Borrowing
to either Administrative Agent, such Borrower shall notify such Administrative
Agent of the BA Obligation or Borrowing, as the case may be, to which such
payment shall apply, subject to Section 2.09(b). In the absence of such notice
such Administrative Agent may specify the BA Obligation or Borrowing to which
such payment shall apply in accordance with Section 2.09(b).
(b) All computations of interest based on the Base Rate
(except during such times as the Base Rate is determined pursuant to clause (b)
of the definition thereof) and of commitment fees shall be made by the U.S.
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate, Adjusted CD
Rate, the Federal Funds Rate or, during such times as the Base Rate is
determined pursuant to clause (b) of the definition thereof, the Base Rate
shall be made by the U.S. Administrative Agent, and all computations of
interest pursuant to Section 2.07 shall be made by a Bank, on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. All computations of interest based on the
Canadian Prime Rate shall be made by the Canadian Administrative Agent on the
basis of a year of 365 or 366 days, as the case may be, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable. Each
determination by either Administrative Agent (or in the case of Section 2.07,
by a Bank) of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder (other than in respect of
BA Obligations or principal of or interest on the Canadian Advances) or under
the U.S. Notes shall be stated to be due on a day other than a U.S. Business
Day, such payment shall be made on the next succeeding U.S. Business Day, and
such extension of time shall in such case be included in the computation of
payment of interest and fees, as the case may be; provided, however, if such
extension would cause payment in respect of interest on or principal of
Eurodollar Rate Advances or CD Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding
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U.S. Business Day. Whenever any payment in respect of BA Obligations or
principal of or interest on Canadian Advances shall be stated to be due on a
day other than a Canadian Business Day, such payment shall be made on the next
succeeding Canadian Business Day, and such extension of time shall in such case
be included in the computation of payment of interest on Canadian
Accommodations.
(d) Unless the appropriate Administrative Agent shall have
received notice from a Borrower prior to the date on which any payment is due
to the Banks hereunder that such Borrower will not make such payment in full to
the appropriate Administrative Agent, such Administrative Agent may assume that
such Borrower has made such payment in full to such Administrative Agent on
such date and such Administrative Agent may, in reliance upon such assumption,
cause to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent that such Borrower shall not
have so made such payment in full to such Administrative Agent, each Bank shall
repay to such Administrative Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to such Administrative Agent, (i) at the Canadian Interbank Rate in the case of
payments which are due in Canadian Dollars, and (ii) otherwise at the Federal
Funds Rate.
(e) Each Borrower hereby authorizes each Bank, if and to the
extent payment owed to such Bank by such Borrower is not made when due
hereunder or under the Note held by each Bank, to charge from time to time
against any or all of such Borrower's accounts with such Bank any amount so
due.
(f) For purposes of the Interest Act (Canada), the principle
of deemed reinvestment of interest shall not apply to any interest calculation
under this Agreement in respect of Accommodations to the Canadian Borrower and
the rates of interest stipulated in this Agreement in respect of Accommodations
to the Canadian Borrower are intended to be normal and not effective rates or
yields.
Section 2.11. Increased Costs and Capital Requirements. (a) If, due
to either (i) the introduction of or any change in, or in the interpretation
(by any central bank or comparable agency or governmental authority charged
with the interpretation or administration thereof) of, any law or regulation or
(ii) the compliance with any guideline issued after the date hereof or request
made after the date hereof, in each case in this clause (ii) from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any U.S. Bank of agreeing to
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make or making, funding or maintaining any Eurodollar Rate Advance or CD Rate
Advance or any reduction of any amount received or receivable by any Bank under
any of the Loan Documents as a result of agreeing to make or making, funding or
maintaining any Eurodollar Rate Advance or any CD Rate Advance (excluding for
purposes of this Section 2.11(a) any such increased costs resulting from (A)
Taxes or Other Taxes (as to which Section 2.12 shall govern) or any change in
the Eurodollar Rate Reserve Percentage reflected in the interest charged under
Section 2.07 and (B) Excluded Taxes), then the U.S. Borrower shall from time to
time, promptly after its receipt of notice from such Bank (with a copy of such
notice delivered by such Bank to the U.S. Administrative Agent), pay to the
U.S. Administrative Agent for the account of such Bank additional amounts
sufficient to compensate such Bank for such increased cost or reduction. A
certificate as to the basis and the amount of such increased cost or reduction,
submitted to the U.S. Borrower and the U.S. Administrative Agent by such Bank,
shall be conclusive and binding for all purposes, absent manifest error,
provided that the determination thereof is made on a reasonable basis.
(b) If, due to either (i) the introduction of or any change
in, or in the interpretation (by any central bank or comparable agency or
governmental authority charged with the interpretation or administration
thereof) of, any law or regulation or (ii) the compliance with any guideline
issued after the date hereof or request made after the date hereof, in each
case in this clause (ii) from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Canadian Bank of agreeing to perform or of performing its
obligations under this Agreement under or in respect of any BA Obligations or
any reduction in any amount payable to, or any increase in any payment required
to be made by, or any forgiveness or reduction of effective return to such Bank
under or in respect of any BA Obligations (excluding for purposes of this
Section 2.11(b) any such increased costs resulting from (A) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (B) Excluded Taxes), then the
Canadian Borrower shall from time to time, promptly after its receipt of notice
from such Bank (with a copy of such notice delivered by such Bank to the
Canadian Administrative Agent), pay to the Canadian Administrative Agent for
the account of such Bank additional amounts sufficient to compensate such Bank
for such increased cost, reduction or other matter referred to in this Section
2.11(b). A certificate as to the basis and the amount of such increased cost,
reduction or other such matter, submitted to the Canadian Borrower and the
Canadian Administrative Agent by such Bank, shall be conclusive and binding for
all purposes, absent manifest error, provided that the determination thereof is
made on a reasonable basis.
(c) If any Bank determines that compliance by such Bank with any
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law or regulation adopted after the date hereof, any change after the date
hereof in any law or regulation, any guideline issued after the date hereof
from any central bank or other governmental authority (whether or not having
the force of law) or any request made after the date hereof from any central
bank or other governmental authority (whether or not having the force of law)
increases or would increase the amount of capital required or expected to be
maintained by such Bank or any Person controlling such Bank and that the amount
of such capital is increased by or based upon the existence of such Bank's
commitment to lend or to accept, purchase and/or discount BA Obligations
hereunder and other commitments of this type or the purchase, acceptance or
maintenance of BA Obligations, then, promptly following its receipt of notice
from such Bank (with a copy of such notice delivered to such Bank to the
Administrative Agents), the Borrowers shall pay to the U.S. Administrative
Agent for the account of such Bank, from time to time as specified by such
Bank, additional amounts sufficient to compensate such Bank or such Person in
the light of such circumstances (excluding amounts resulting from (A) Taxes or
Other Taxes (as to which Section 2.12 shall govern) or any change in the
Eurodollar Rate Reserve Percentage reflected in the interest charged under
Section 2.07 and (B) Excluded Taxes), to the extent that such Bank reasonably
determines such increase in capital to be allocable to the existence of such
Bank's commitment to lend or to accept, purchase and/or discount BA Obligations
hereunder or the purchase, acceptance or maintenance of BA Obligations. A
certificate as to such amounts submitted to the Borrowers and the U.S.
Administrative Agent by such Bank shall be conclusive and binding for all
purposes, absent manifest error, provided that the determination thereof is
made on a reasonable basis.
(d) Neither Borrower shall be required to pay any Bank any
amount otherwise owed under this Section 2.11 that is incurred more than 90
days prior to notice thereof being given by such Bank to such Borrower, unless
such amount had not been imposed or was not determinable on the date that is 90
days prior to such notice.
Section 2.12. Taxes. (a) Any and all payments by either Borrower
hereunder, under the Guaranty or under the Notes or in respect of any BA
Obligation shall be made, in accordance with Section 2.10, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges and withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and each Administrative Agent, Excluded
Taxes (all such taxes, levies, imposts, deductions, charges, withholdings and
liabilities other than Excluded Taxes being hereinafter referred to (subject to
further exclusions, if any, under Section 2.12(e)) as "Taxes"). If any Taxes
are required to be withheld or deducted by any Person from or in respect of any
sum payable hereunder or under any Note or in respect of any BA Obligation to
any Bank or any Administrative
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Agent, (i) the sum payable by the relevant Borrower shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Bank or
such Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the relevant
Borrower shall make such deductions and (iii) the relevant Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law. Any such payment by a Borrower shall be
made in the name of the relevant Bank or Administrative Agent (as the case may
be).
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made by it or receipt from it
hereunder, under the Guaranty or under the Notes or in respect of any BA
Obligation or from its execution, delivery or registration of, performing
under, or otherwise with respect to, this Agreement, any BA Obligation, the
Guaranty or any of the Notes (herein referred to as "Other Taxes").
(c) The Borrowers will indemnify each Bank and each Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.12) imposed on or paid by such Bank or such
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted,
but excluding penalties, interest, expenses and other liabilities arising as a
result of the gross negligence or willful misconduct of such Bank or such
Administrative Agent (as the case may be). Payments under any indemnification
provided for in this Section 2.12(c) shall be made within 30 days from the date
such Bank or such Administrative Agent (as the case may be) makes written
demand therefor, which demand shall state the basis for, and set forth the
calculation of the amount of, such demand.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower making such payment will furnish to the U.S. Administrative Agent, at
its address referred to in Section 8.02, the original or a certified copy of a
receipt evidencing payment thereof. In the case of any payment hereunder, under
the Guaranty or under the Notes by or on behalf of the U.S. Borrower through an
account or branch outside the United States or by or on behalf of the U.S.
Borrower by a payor that is not a United States person, if the U.S. Borrower
determines that no Taxes are payable in respect thereof, the U.S. Borrower
shall furnish, or shall cause such payor to furnish, to each Administrative
Agent a written statement from each appropriate taxing authority or an
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opinion of counsel acceptable to the Administrative Agents, in either case
stating that such payment is exempt from or not subject to Taxes. In the case
of any payment hereunder, under the Guaranty or under the Notes or in respect
of BA Obligations by or on behalf of the Canadian Borrower through an account
or branch outside Canada or by or on behalf of the Canadian Borrower by a payor
that is not a Resident in Canada, if the Canadian Borrower determines that no
Taxes are payable in respect thereof, the Canadian Borrower shall furnish, or
shall cause such payor to furnish, to each Administrative Agent a written
statement from each appropriate taxing authority or an opinion of counsel
acceptable to the Administrative Agents, in either case stating that such
payment is exempt from or not subject to Taxes. For purposes of this Section
2.12(d) and Section 2.12(e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Code, and the
terms "Canada" and "Resident in Canada" shall have the meanings they have for
the purposes of the Income Tax Act (Canada).
(e) Each U.S. Bank that is not a citizen or resident of the United
States, a corporation, partnership, or other entity created or organized in or
under the laws of the United States or any state thereof, or an estate or trust
that is subject to federal income taxation regardless of source of its income,
on or prior to the date of its execution and delivery of this Agreement in the
case of each such Bank listed on the signature pages hereof and not later than
the date of the Assignment and Acceptance pursuant to which it becomes a Bank
in the case of each other such U.S. Bank, and from time to time thereafter as
requested in writing by the U.S. Borrower or the U.S. Administrative Agent (but
only so long as such Bank remains lawfully able to do so), shall provide each
of the U.S. Administrative Agent and the U.S. Borrower with two original
Internal Revenue Service Forms 1001 or 4224, as appropriate, or any successor
or other form prescribed by the Internal Revenue Service, or, in the case of a
U.S. Bank claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest",
a Form W-8, or any successor or other form prescribed by the Code (and, if such
Bank delivers a Form W-8, an annual certificate representing that (i) such Bank
is not a "bank" for purposes of Section 881(c) of the Code (and is not subject
to regulatory or other legal requirements as a bank in any jurisdiction, and
has not been treated as a bank in any filing with or submission made to any
government or rating agency), (ii) is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the U.S. Borrower and (iii) is
not a controlled foreign corporation related to the U.S. Borrower (within the
meaning of Section 864(d)(4) of the Code)), along with such other additional
forms or certificates as the U.S. Borrower or the U.S. Administrative Agent may
reasonably request, certifying that such Bank is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant
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to this Agreement or the Notes. If such forms provided by a Bank at the time
such Bank first becomes a party to this Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Bank provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for
periods governed by such form; provided that if at the date of the Assignment
and Acceptance pursuant to which a U.S. Bank assignee becomes a party to this
Agreement (other than by virtue of an assignment under Section 2.17), the U.S.
Bank assignor was entitled to payments under Section 2.12(a) in respect of
United States withholding tax with respect to interest paid at such date, then
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future and not otherwise excluded above or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Bank assignee on such date. Each U.S. Bank that
is subject to the requirements of this Section 2.12(e) and which so delivers a
Form 1001, 4224 or W-8 required by this Section 2.12(e) further undertakes to
deliver (but only so long as such Bank remains lawfully able to do so) to the
U.S. Borrower and the U.S. Administrative Agent two additional copies of such
form (or a successor form) on or before the date such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the U.S. Borrower or the
U.S. Administrative Agent, in each case certifying that such U.S. Bank is
entitled to receive payments from the U.S. Borrower under any Loan Document
without deduction or withholding of any U.S. federal income taxes, unless an
event (including any change in law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly completing
and delivering any such form with respect to it and such Bank advises the U.S.
Borrower and the U.S. Administrative Agent that it is not capable of receiving
such payments without any deduction or withholding of U.S. federal income tax.
If any form or document referred to in this Section 2.12(e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001 or 4224, that the Bank providing such form or document reasonably
considers to be confidential, such Bank shall give notice thereof to the U.S.
Borrower and shall not be obligated to include in such form or document such
confidential information, but if failure to include such confidential
information in such form or document renders such form or document ineffective
for its purpose, then such Bank shall not be entitled to reimbursement for any
increase in Taxes to the extent caused by or resulting from such
ineffectiveness.
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(f) For any period with respect to which a U.S. Bank has failed to
provide the U.S. Borrower and the U.S. Administrative Agent with the
appropriate form or certificate (or failed to provide substantially all of the
information required by such form or certificate) required by Section 2.12(e),
such Bank shall not be entitled to indemnification under Section 2.12(a) or (c)
with respect to Taxes imposed by the United States by reason of such failure or
such notification; provided that should a Bank become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrowers shall take
such steps as the Bank shall reasonably request to assist the Bank to recover
such Taxes.
(g) Any Bank claiming any additional amounts payable pursuant to this
Section 2.12 agrees to use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Eurodollar Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such additional amounts that may thereafter accrue and would
not, in the reasonable judgment of such Bank, be otherwise disadvantageous to
such Bank. Nothing herein contained shall interfere with the right of each
Bank to arrange its tax affairs in whatever manner it thinks fit nor oblige any
Bank to disclose any information relating to its tax affairs or any
computations in respect thereof, except as set forth in the last sentence of
Section 2.12(c). Nothing herein contained shall require any Bank to do
anything that would prejudice its ability to benefit from any credits, reliefs,
remissions or repayments to which it may be entitled.
(h) The agreements in this Section 2.12 shall survive the termination
of this Agreement and the payment of the Notes and all other amounts payable
hereunder.
(i) Should any Bank or Administrative Agent ever receive any refund,
credit or deduction from any taxing authority to which such Bank or
Administrative Agent, as the case may be, would not be entitled but for the
payment by a Borrower of Taxes as required by this Section 2.12 (it being
understood that the decision as to whether or not to claim, and if claimed, as
to the amount of any such refund, credit or deduction shall be made by such
Bank or Administrative Agent, as the case may be, in its sole discretion), such
Bank or Administrative Agent, as the case may be, thereupon shall repay to such
Borrower an amount with respect to such refund, credit or deduction equal to
any net reduction in taxes actually obtained by such Bank or Administrative
Agent, as the case may be, and determined by such Bank or Administrative Agent,
as the case may be, to be directly attributable to such refund, credit or
deduction.
Section 2.13. Sharing of Payments, Etc. If any U.S. Bank shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or
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otherwise) on account of the principal of or interest on the U.S. Advances
owing to it (except amounts payable pursuant to Sections 2.07, 2.11 or 2.12,
and except that any Bank may receive less than its ratable share of interest to
the extent Section 8.06 is applicable to it) in excess of its ratable share of
payments on account of the principal of or interest on the U.S. Advances
obtained by all the U.S. Banks, such Bank shall forthwith purchase from the
other U.S. Banks such participations in the Advances owing to them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably
with each of them, provided that if all or any portion of such excess payment
is thereafter recovered from such purchasing Bank, such purchase from each Bank
shall be rescinded and such Bank shall repay to the purchasing Bank the
purchase price to the extent of such Bank's ratable share (according to the
proportion of (i) the amount of the participation purchased from such Bank as a
result of such excess payment to (ii) the total amount of such excess payment)
of such recovery together with an amount equal to such Bank's ratable share
(according to the proportion of (i) the amount of such Bank's required
repayment to (ii) the total amount so recovered from the purchasing Bank) of
any interest or other amount paid or payable by the purchasing Bank in respect
of the total amount so recovered. If any Canadian Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the principal of or interest on the
Advances owing to it or on account of BA Obligations (except amounts payable
pursuant to Sections 2.07, 2.11 or 2.12, and except that any Bank may receive
less than its ratable share of interest to the extent Section 8.06 is
applicable to it) in excess of its ratable share of payments on account of the
principal of or interest on the Canadian Advances or BA Obligations, as the
case may be, obtained by all the Canadian Banks, such Bank shall forthwith
purchase from the other Canadian Banks such participations in the Advances
owing to them or BA Obligations, as the case may be, as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
them, provided that if all or any portion of such excess payment is thereafter
recovered from such purchasing Bank, such purchase from each Bank shall be
rescinded and such Bank shall repay to the purchasing Bank the purchase price
to the extent of such Bank's ratable share (according to the proportion of (i)
the amount of the participation purchased from such Bank as a result of such
excess payment to (ii) the total amount of such excess payment) of such
recovery together with an amount equal to such Bank's ratable share (according
to the proportion of (i) the amount of such Bank's required repayment to (ii)
the total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. Each Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor
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of such Borrower in the amount of such participation.
Section 2.14. Illegality. (a) Notwithstanding any other provision of
this Agreement, if any Bank ("Affected Bank") shall notify the U.S.
Administrative Agent that any law or regulation makes it unlawful, or any
central bank or other governmental authority hereafter asserts that it is
unlawful, for such Affected Bank or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate Advances or to fund or
maintain Eurodollar Rate Advances hereunder, (i) the obligation of such
Affected Bank to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended (and any request by the U.S. Borrower for a Borrowing
comprised of Eurodollar Rate Advances shall be deemed a request for a Base Rate
Advance from such Affected Bank to be made on the same date as the Eurodollar
Rate Advances of the Banks that are not Affected Banks and such Base Rate
Advances shall be considered as part of such Borrowing) until such Affected
Bank shall notify the U.S. Borrower and the Banks that the circumstances
causing such suspension no longer exist (and such Affected Bank shall give
notice promptly to the U.S. Administrative Agent and the U.S. Borrower upon
such circumstance ceasing to exist), and (ii) each Eurodollar Rate Advance of
such Affected Bank will automatically, upon such notice, Convert into a Base
Rate Advance on the last day of the then current Interest Period for such
Eurodollar Rate Advance or earlier upon such notice if the law so requires. In
the event any Affected Bank shall notify the U.S. Administrative Agent of the
occurrence of any circumstance contemplated under this Section 2.14(a), all
payments of principal that would otherwise have been applied to repay the
Eurodollar Rate Advances that would have been made by such Affected Bank or the
Converted Eurodollar Rate Advances shall instead be applied to repay the Base
Rate Advances made by such Affected Bank in lieu of such Eurodollar Rate
Advances or resulting from the Conversion of such Eurodollar Rate Advances and
shall be made at the time that payments on the Eurodollar Rate Advances of the
Banks that are not Affected Banks are made.
(b) Notwithstanding any other provision of this Agreement, if
any Bank ("Canadian Affected Bank") shall notify the Canadian Administrative
Agent that any law or regulation makes it unlawful, or any central bank or
other governmental authority asserts that it is unlawful, for such Canadian
Affected Bank or its Canadian Bankers' Acceptance Lending Office to perform its
obligations hereunder to complete and accept Drafts, to purchase Bankers'
Acceptance or BA Equivalent Notes or to continue to fund or maintain BA
Obligations hereunder, (i) the obligation of such Canadian Affected Bank to
complete and accept Drafts and/or to purchase Bankers' Acceptance or BA
Equivalent Notes, or Convert Canadian Prime Rate Advances into BA Obligations,
shall be suspended (and any request by the Canadian Borrower for a Drawing
shall be
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deemed a request for a Canadian Prime Rate Advance from such Canadian Affected
Bank to be made on the same date as the BA Obligations of the Banks that are
not Canadian Affected Banks and such Canadian Prime Rate Advance shall be
considered as part of such Drawing) until such Canadian Affected Bank shall
notify the Canadian Borrower and the Banks that the circumstances causing such
suspension no longer exist (and such Canadian Affected Bank shall give notice
promptly to the Canadian Administrative Agent and the Canadian Borrower upon
such circumstance ceasing to exist), (ii) an amount equal to the aggregate Face
Amount of all BA Obligations outstanding at such time, shall, upon such demand
(which shall only be made if reasonably deemed necessary by any Canadian Bank
to comply with applicable law), be deposited by the Canadian Borrower into the
Canadian Cash Collateral Account until the Maturity Date of each such BA
Obligation, and (iii) upon the Maturity Date of any BA Obligation in respect of
which any such deposit has been made, the U.S. Administrative Agent shall be,
and hereby is, authorized (without notice to or any further action by any
Borrower) to apply, or to direct the Canadian Administrative Agent to apply,
such amount (or the applicable portion thereof) to the reimbursement of such BA
Obligation. In the event any Canadian Affected Bank shall notify the Canadian
Administrative Agent of the occurrence of any circumstance contemplated under
this Section 2.14(b), all payments of principal that would otherwise have been
applied to repay the BA Obligations that would have been made by such Canadian
Affected Bank shall instead be applied to repay the Canadian Prime Rate
Advances made by such Canadian Affected Bank in lieu of such BA Obligations and
shall be made at the time that payments on the BA Obligations of the Canadian
Banks that are not Canadian Affected Banks are made.
Section 2.15. Conversion of U.S. Advances; Interest Periods. The U.S.
Borrower may on any Business Day, upon notice given to the U.S. Administrative
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Conversion (or in the case of notice to
Convert Eurodollar Advances or CD Rate Advances to Base Rate Advances not later
than 10:00 a.m. (New York City time) on the last day of the Interest Period for
such Eurodollar Rate Advance or such CD Rate Advance) and subject to the
provisions of Sections 2.01(d), 2.08 and 2.14, Convert all Advances of one U.S.
Type comprising the same Borrowing into Advances of another U.S. Type;
provided, however, that (i) if any Conversion of any Eurodollar Rate Advances
or CD Rate Advances into another U.S. Type of Advances is made on any day other
than the last day of an Interest Period for such Eurodollar Rate Advances or CD
Rate Advances, as the case may be, the U.S. Borrower shall be obligated to
reimburse the Banks in respect thereof pursuant to Section 8.04(b), and (ii)
Advances comprising a Borrowing may not be Converted into Eurodollar Rate
Advances or CD Rate Advances if the outstanding principal amount of such
Borrowing is less than
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U.S. $10,000,000 or if any Event of Default under Section 6.01(a) or Section
6.01(e) shall have occurred and be continuing on the date the related notice of
Conversion would otherwise be given pursuant to this Section 2.15. Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advances to be Converted, and (iii)
if such Conversion is into Eurodollar Rate Advances or CD Rate Advances, the
duration of the initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the U.S. Borrower. If any Event
of Default under Section 6.01(a) or Section 6.01(e) shall have occurred and be
continuing on the third Business Day prior to the last day of any Interest
Period for any Eurodollar Rate Advances or CD Rate Advances, the U.S. Borrower
agrees to Convert all such Advances into Base Rate Advances on the last day of
such Interest Period. The U.S. Borrower may on any U.S. Business Day, upon
notice given to the U.S. Administrative Agent not later than 11:00 a.m. (New
York City time) on the third U.S. Business Day prior to the last day of any
Interest Period designate a new Interest Period to commence on the last day of
the existing Interest Period, in accordance with the provisions of the
definition herein of "Interest Period."
Section 2.16. Designation of Commitments. On or prior to the date
hereof, the Borrowers shall execute and deliver to the U.S. Administrative
Agent a properly completed notice in the form of Exhibit J (a "Designation
Notice"), which Designation Notice delivered on or prior to the date hereof,
shall be effective upon the date hereof. After the date hereof, the Borrowers
may deliver to the U.S. Administrative Agent a Designation Notice not more
frequently than eight times in any calendar year, each such Designation Notice
complying with the provisions of this Section 2.16 to be effective at 10:00
a.m. (New York City time) either (i) five U.S. Business Days (and at least
three Canadian Business Days) after receipt by the U.S. Administrative Agent or
(ii) if any notice has been given by the U.S. Administrative Agent pursuant to
Section 2.05(c) or if the Borrowers otherwise wish to make a designation
because the conditions referred to in the first sentence of Section 2.05(c)
then exist, on the Canadian Business Day (including the same day if the
appropriate Designation Notice is received by the U.S. Administrative Agent
before 10:00 a.m. (New York City time) on such day) specified by the Borrowers
in such Designation Notice received by the U.S. Administrative Agent before
10:00 a.m. (New York City time) on such Canadian Business Day, but such
specified Canadian Business Day may not be more than three Canadian Business
Days (but may be the same Canadian Business Day or otherwise less than three
Canadian Business Days if the appropriate Designation Notice is received by the
U.S. Administrative Agent before 10:00 a.m. (New York City time) on the
specified day as contemplated above) following such notice pursuant to Section
2.05(c). Each Designation Notice shall be executed by each Borrower and shall
set forth therein the percentage of the Revolving Credit Facility
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which will be available to the U.S. Borrower ("U.S. Percentage") and the
percentage of the Revolving Credit Facility which will be available to the
Canadian Borrower ("Canadian Percentage"), in each case until the effectiveness
of a replacement Designation Notice; provided that (i) the sum of such
percentages for the Borrowers must equal 100%, (ii) the product of the U.S.
Percentage multiplied by the Revolving Credit Facility shall be an integral
multiple of U.S. $1,000,000, (iii) the product of the Canadian Percentage
multiplied by the Revolving Credit Facility shall be an integral multiple of
U.S. $1,000,000, (iv) the percentage of the Revolving Credit Facility
designated with respect to any Borrower may not be less than the percentage of
the Revolving Credit Facility outstanding to (including, in the case of the
Canadian Borrower, the outstanding BA Obligations), or subject to then pending
Notices of Borrowing and Notices of Drawing of, such Borrower on the date such
notice is received by the U.S. Administrative Agent (unless such notice
specifies how such Borrower will be in compliance with the foregoing on the
date of effectiveness of such notice) and on the date of effectiveness of such
notice (in the case of Canadian Advances and BA Obligations, determined on the
basis of the U.S. Dollar Equivalent thereof), and (v) upon the effectiveness of
each such Designation Notice, such Designation Notice shall be binding on the
Borrowers until the effectiveness of a replacement Designation Notice. No
Designation Notice may be delivered hereunder so long as any Event of Default
has occurred and is continuing. Any contrary provision of this Agreement or
any other Loan Document notwithstanding, during the effectiveness of each such
Designation Notice, no Borrower may request, and no Bank shall have any
obligation to make Advances to, or other Accommodations for, such Borrower at
any time which would cause the aggregate principal amount and Face Amount of
Advances and other Accommodations outstanding to such Borrower to exceed the
amount equal to the product of the Applicable Designated Commitment Percentage
set forth for such Borrower in such Designation Notice multiplied by the
Revolving Credit Facility at such time.
Section 2.17. Replacement of Bank. In the event that any Bank makes a
demand for payment under Section 2.11, requires any Taxes be withheld or
deducted under Section 2.12(a), makes demand for any indemnity under Section
2.12(c) or notifies either Administrative Agent of any circumstance pursuant to
Section 2.14 or 2.08(d)(B), the Borrowers may within 180 days of such demand,
if no Event of Default or Default then exists and no BA Obligations are then
outstanding (or if BA Obligations are outstanding, arrangements reasonably
satisfactory in all respects to such Bank are made to insure that such Bank
will be paid such BA Obligations in full on their Maturity Date, and the
Borrowers shall remain liable therefor), replace such Bank with an Eligible
Assignee in accordance with Section 8.08(a), (b) and (d) (including execution
of an appropriate Assignment and Acceptance) provided that (i) the Notes
payable to such Bank and all
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other obligations owed to such Bank hereunder shall be purchased or paid in
full by such Assignee, without representation or recourse (except as provided
in such Assignment and Acceptance), at par plus accrued interest at or prior to
such replacement, (ii) such Eligible Assignee shall, from and after such
replacement, be deemed for all purposes to be a "Bank" hereunder, and shall
have all of the rights, duties and obligations hereunder of the Bank being
replaced, and (iii) such other actions shall be taken by the Borrowers, such
Bank and such Eligible Assignee as may be appropriate to effect the replacement
of such Bank with such Eligible Assignee on terms such that such Eligible
Assignee has from and after such replacement all of the rights, duties and
obligations hereunder as such Bank (including, without limitation, execution
and delivery of a Note to such Eligible Assignee, redelivery to the Borrower in
due course of the Note payable to such Bank and specification of the
information contemplated by Schedule II as to such Eligible Assignee). No Bank
shall have any obligation to be such an Eligible Assignee or otherwise have any
obligation to replace any other Bank.
Section 2.18. Lending Office. Any Bank that makes demand for payment
of additional amounts under Section 2.11, requires any Taxes be withheld or
deducted under Section 2.12(a), makes demand for any indemnity under Section
2.12(c) or notifies the U.S. Administrative Agent of any circumstance pursuant
to Section 2.14 or Section 2.08(d)(B), shall use reasonable efforts (consistent
with legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such designation would avoid the need for, or
reduce the amount of, such additional amounts, withholding, deduction or
indemnity or avoid thereafter the circumstances that gave rise to such
notification; provided that no such designation need be made if such Bank
reasonably believes that it may suffer an economic, legal or regulatory
disadvantage or that such designation would be detrimental or otherwise
disadvantageous in any respect to such Bank.
Section 2.19. Renewal and Conversion of BA Obligations. (a) The
Canadian Borrower may on any Canadian Business Day, upon notice given to the
U.S. Administrative Agent not later than 12:00 noon (New York City time) on the
third Canadian Business Day prior to the date of the proposed renewal and
subject to the provisions of Sections 2.08 and 2.14, renew all or any portion
of the BA Obligations comprising part of the same Drawing; provided that:
(i) any renewal of BA Obligations shall be made only
on the then existing Maturity Date of such BA Obligations;
(ii) each renewal of BA Obligations comprising part
of the
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same Drawing shall be made ratably among the Banks holding such BA Obligations
in accordance with the respective amount of such BA Obligations so held
(counting Canadian Prime Rate Advances made under Section 2.03 or Section 2.19
in lieu thereof); and
(iii) no renewal of any BA Obligation may be made at
any time that an Event of Default under Section 6.01(a) or Section 6.01(e) has
occurred and is continuing.
Each such notice of renewal shall, within the restrictions set forth above,
specify (A) the date of such renewal (which shall be the then existing Maturity
Date of such BA Obligations and shall be a Canadian Business Day), (B) the BA
Obligations to be renewed, (C) if less than all of the BA Obligations
comprising part of any Drawing are to be renewed, the aggregate Face Amount for
such renewal and (D) the term to maturity of the renewed BA Obligations (which
shall comply with the definition of "Maturity Date" in Section 1.01). Each
Draft and BA Equivalent Note in connection with any renewal under this Section
2.19 (A) shall be in an amount of C$100,000 or an integral multiple of
C$100,000 in excess thereof, and (B) shall be dated the date of the proposed
renewal. In the event that the Face Amount of any renewal requested by the
Canadian Borrower pursuant to this Section 2.19 is an amount which, if divided
ratably among the Canadian Banks would not result in each Canadian Bank
accepting a Draft or purchasing a BA Equivalent Note which has an undiscounted
face amount equal to C$100,000 or an integral multiple of C$100,000 in excess
thereof, then notwithstanding any provision in this Agreement to the contrary,
the Canadian Administrative Agent is authorized by the Canadian Borrower and
the Canadian Banks to allocate among the Canadian Banks, the Drafts to be
accepted and purchased and BA Equivalent Notes to be purchased in such manner
and amounts as the Canadian Administrative Agent may, in its sole discretion,
acting reasonably, consider necessary, rounding up or down, so as to ensure
that no Canadian Bank is required to accept a Draft for a fraction of $100,000
and, in such event, the Canadian Banks' ratable share with respect to such
Drafts and BA Equivalent Notes shall be adjusted accordingly; provided that no
Canadian Bank shall be required to purchase any Bankers' Acceptance or BA
Equivalent Note to the extent that the Face Amount thereof exceeds its then
Unused Commitment and such Canadian Bank shall fund any portion of its
allocated share in excess of its Bankers' Acceptance or BA Equivalent Note in
the form of a Canadian Prime Rate Advance, which shall for all purposes be
deemed to be a Canadian Borrower Advance made pursuant to Section 2.01(b).
Each notice of renewal under this Section 2.19 shall be irrevocable and binding
on the Canadian Borrower. Upon any renewal of BA Obligations comprising part
of any Drawing in accordance with this Section 2.19(a), the Banks holding the
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BA Obligations to be renewed shall exchange such maturing BA Obligations for
new BA Obligations containing the terms set forth in the applicable notice of
renewal, and the Drawing Purchase Price payable for each such renewal shall be
applied, together with other necessary funds of the Canadian Borrower, to
reimburse the BA Obligations otherwise maturing on such date in accordance with
Section 2.05(b). The Canadian Borrower hereby irrevocably authorizes and
directs each Canadian Bank to apply the proceeds of each renewed BA Obligation
owing to it to the payment, in accordance with this Section 2.19(a), of the BA
Obligations owing to such Bank and maturing on such date, and the Canadian
Borrower will pay any remaining balance owing thereon.
(b) The Canadian Borrower may on any Canadian Business Day,
upon notice given to the U.S. Administrative Agent not later than 12:00 noon
(New York City time) on the third Canadian Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.08 and
2.14, (i) Convert all or any portion of Canadian Prime Rate Advances comprising
the same Borrowing or Borrowings into a Drawing comprised of BA Obligations, or
(ii) Convert all or any portion of the BA Obligations comprising part of the
same Drawing to a Canadian Borrowing comprised of Canadian Prime Rate Advances;
provided, that:
(i) any Conversion of BA Obligations shall be made
only on the then existing Maturity Date for such BA Obligations;
(ii) each Conversion of BA Obligations comprising
part of the same Drawing shall be made ratably among the Banks holding such BA
Obligations in accordance with the respective amounts of such BA Obligations so
held;
(iii) no Conversion may be made if the amount of the
Advance (determined on the basis of the U.S. Dollar Equivalent of such Advance)
to be made by any Canadian Bank in connection with such Conversion would exceed
such Bank's Unused Commitment in effect at the time of such Conversion;
(iv) each Conversion into a Canadian Borrowing shall
be in an aggregate amount of C$1,000,000 or an integral multiple of C$100,000
in excess thereof;
(v) each Conversion of Canadian Prime Rate Advances
into a Drawing shall be in an aggregate Face Amount of C$10,000,000 or an
integral multiple of C$100,000 in excess thereof and shall otherwise comply
with the requirements of, and be in accordance with, Sections 2.01(c), 2.01(d)
and 2.03; and
(vi) no Conversion of Canadian Prime Rate Advances
into a
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Drawing may be made at any time that an Event of Default under Section 6.01(a)
or Section 6.01(e) has occurred and is continuing.
Each such notice of Conversion shall, within the restrictions set forth above,
specify (A) the date of such Conversion (which shall be, in the case of any
Conversion of BA Obligations, the then existing Maturity Date of such BA
Obligations and shall be a Canadian Business Day), (B) the BA Obligations or
Canadian Prime Rate Advances, as the case may be, to be Converted, (C) if less
than all of the BA Obligations comprising part of any Drawing are to be
Converted into Canadian Prime Rate Advances, the aggregate Face Amount of such
Conversion, and (D) in the case of Conversion into BA Obligations, the term to
maturity of such BA Obligations (which shall comply with the definition of
"Maturity Date" in Section 1.01). Each Draft and BA Equivalent Note in
connection with any such Conversion into BA Obligations under this Section 2.19
(A) shall be in an amount of C$100,000 or an integral multiple of C$100,000 in
excess thereof, and (B) shall be dated the date of the proposed Conversion. In
the event that the Face Amount of any such Conversion requested by the Canadian
Borrower pursuant to this Section 2.19 is an amount which, if divided ratably
among the Canadian Banks would not result in each Canadian Bank accepting a
Draft or purchasing a BA Equivalent Note which has an undiscounted face amount
equal to C$100,000 or an integral multiple of C$100,000 in excess thereof, then
notwithstanding any provision in this Agreement to the contrary, the Canadian
Administrative Agent is authorized by the Canadian Borrower and the Canadian
Banks to allocate among the Canadian Banks, the Drafts to be accepted and
purchased and BA Equivalent Notes to be purchased in such manner and amounts as
the Canadian Administrative Agent may, in its sole discretion, acting
reasonably, consider necessary, rounding up or down, so as to ensure that no
Canadian Bank is required to accept a Draft for a fraction of $100,000 and, in
such event, the Canadian Banks' ratable share with respect to such Drafts and
BA Equivalent Notes shall be adjusted accordingly; provided that no Canadian
Bank shall be required to purchase any Bankers' Acceptance or BA Equivalent
Note to the extent that the Face Amount thereof exceeds its then Unused
Commitment and such Canadian Bank shall fund any portion if its allocated share
in excess of its Bankers' Acceptance or BA Equivalent Note in the form of a
Canadian Prime Rate Advance, which shall for all purposes be deemed to be a
Canadian Borrower Advance made pursuant to Section 2.01(b). Each notice of
Conversion under this Section 2.19 shall be irrevocable and binding on the
Canadian Borrower. Upon any Conversion of BA Obligations comprising part of
the same Drawing in accordance with this Section 2.19(b), the obligation of the
Canadian Borrower to repay the Banks under Section 2.05 in respect of the BA
Obligations otherwise maturing on such date shall, to the extent of such
Conversion, be Converted to an obligation to repay on the Termination Date the
Canadian Banks making the Canadian
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Borrower Advances made in respect of such maturing BA Obligations on such date
ratably in accordance with the amount of the Canadian Advances held by such
Bank at the time of repayment. The Canadian Borrower hereby irrevocably
authorizes and directs each Canadian Bank to apply the net proceeds of each
Canadian Prime Rate Advance made by such Canadian Bank pursuant to this Section
2.19(b) to the payment of the BA Obligations owing to such Bank and maturing on
such date, and the Canadian Borrower will pay any remaining balance on such
date.
(c) If any Event of Default under Section 6.01(a) or Section
6.01(e) shall have occurred and be continuing or if the Canadian Borrower shall
fail (i) to deliver a properly completed notice of renewal under Section
2.19(a) or a properly completed notice of Conversion under Section 2.19(b)
indicating its intention to renew or to Convert any maturing BA Obligations or
(ii) to pay the Canadian Banks for any BA Obligations comprising part of the
same Drawing pursuant to Section 2.05, the Canadian Administrative Agent will
forthwith so notify the U.S. Administrative Agent, the Canadian Borrower and
the Canadian Banks, and each of such BA Obligations will automatically, on the
then existing Maturity Date of such BA Obligations, Convert into a Canadian
Prime Rate Advance.
Section 2.20. Canadian Borrower. Notwithstanding anything to the
contrary contained herein, nothing in this Agreement shall require the Canadian
Borrower to pay any amounts that are obligations of the U.S. Borrower (other
than those that are obligations of the U.S. Borrower by virtue of the Guaranty)
in respect of (i) any U.S. Advance or the U.S. Commitments, including (A) any
principal of, or interest on, any U.S. Advance; (B) any increased costs,
breakage costs or taxes payable in respect of any U.S. Advance pursuant to this
Agreement; (C) any other fees, costs or expenses relating to a U.S. Advance;
(D) any enforcement costs relating to a U.S. Advance; (ii) any fees owed to the
U.S. Administrative Agent or a U.S. Bank, including any commitment fee in
respect of the U.S. Commitments and any other Agent's fees or other fees
relating to the U.S. Commitments or the U.S. Advances; (iii) any reimbursement,
indemnification, contribution or other similar payment payable to any U.S. Bank
or the U.S. Administrative Agent; or (iv) any other amounts payable to a U.S.
Bank or the U.S. Administrative Agent or in respect of, or relating to, the
U.S. Commitments or any U.S. Advance. Notwithstanding the foregoing, all
amounts referred to in this Section 2.20 shall be and remain the obligations of
the U.S. Borrower.
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ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Condition Precedent to Initial Accommodations. The
obligation of each Bank to make its initial Accommodation is subject to the
conditions precedent that (i) all fees and expenses of the Administrative
Agents and the Arranger then due and payable (including the reasonable fees and
expenses of counsel to the Administrative Agents if a detailed invoice therefor
shall have been provided at least forty-eight hours prior to closing) shall
have been paid; (ii) all governmental and third party consents and approvals
necessary in connection with any of the Loan Documents or the transactions
contemplated hereby shall have been obtained (without the imposition of any
conditions that are not acceptable to the Banks) and shall remain in effect,
all applicable waiting periods shall have expired without any adverse action
being taken by any competent authority, and no law or regulation shall be
applicable to the Borrowers and the Consolidated Subsidiaries, taken as a
whole, in the judgment of the Banks that restrains, prevents or imposes
materially adverse conditions upon the Borrowers and the Consolidated
Subsidiaries, taken as a whole, any of the Loan Documents or the transactions
contemplated thereby, (iii) the Banks shall be satisfied with the corporate and
legal structure and capitalization of the Borrowers, including the charters and
by-laws of the Borrowers and each agreement or instrument relating to such
corporate structure, legal structure, and capitalization, (iv) the Banks shall
have completed a due diligence investigation of the Borrowers and the
Consolidated Subsidiaries in scope, and with results, satisfactory to the
Banks, and (v) the U.S. Administrative Agent shall have received on or before
the day of the initial Accommodation the following, each dated on or before
such day, in form and substance satisfactory to the U.S. Administrative Agent
and (except for the Notes) in sufficient copies for each Bank:
(a) The U.S. Notes payable to the order of the respective U.S. Banks,
duly executed by the U.S. Borrower, and the Canadian Notes payable to the order
of the respective Canadian Banks, duly executed by the Canadian Borrower.
(b) The Guaranty, duly executed by the U.S. Borrower.
(c) A certificate of the Secretary or an Assistant Secretary of the
U.S. Borrower certifying on behalf of the U.S. Borrower (i) copies of the
resolutions of the Board of Directors of the U.S. Borrower approving this
Agreement, the Guaranty and the U.S. Notes and of all documents evidencing
other necessary corporate action and government approvals, if any, with respect
to this Agreement, the Guaranty and the U.S. Notes; (ii) that attached thereto
are true and complete copies of the certificate of incorporation and by-laws of
the U.S. Borrower; and (iii) the names and true signatures of the officers of
the U.S. Borrower authorized to sign this Agreement, the Guaranty and the
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U.S. Notes.
(d) A certificate of the Secretary or an Assistant Secretary of the
Canadian Borrower certifying on behalf of the Canadian Borrower (i) copies of
the resolutions of the Board of Directors of the Canadian Borrower approving
this Agreement, the Canadian Notes, the Drafts and the BA Equivalent Notes and
of all documents evidencing other necessary corporate action and government
approvals, if any, with respect to this Agreement, the Canadian Notes, the
Drafts and the BA Equivalent Notes; (ii) that attached thereto are true and
complete copies of the certificate of incorporation and by-laws of the Canadian
Borrower; and (iii) the names and true signatures of the officers of the
Canadian Borrower authorized to sign this Agreement, the Canadian Notes, the
Drafts and the BA Equivalent Notes .
(e) An opinion of Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., U.S. counsel
for the Borrowers, substantially in the form of Exhibit E-1, an opinion of
Xxxxxxx, Xxxxxxxx & Xxxxxxxx, Canadian counsel for the Borrowers, substantially
in the form of Exhibit E-2 and an opinion of Xxxx X. Xxxxx, Esq., General
Counsel of the U.S. Borrower, substantially in the form of Exhibit E-3.
(f) An opinion of Xxxxxxxxx & Xxxxxxxxx, L.L.P., special U.S. counsel
to the U.S. Administrative Agent, substantially in the form of Exhibit F, and
an opinion of Tory Xxxx XxxXxxxxxxx & Binnington, special Canadian counsel to
the Canadian Administrative Agent, substantially in the form of Exhibit G.
(g) A certificate of an officer of the U.S. Borrower stating on
behalf of the U.S. Borrower (i) the ratings by each of S&P and Xxxxx'x of the
preferred stock of the U.S. Borrower as in effect on the date hereof and (ii)
that on the date hereof neither S&P nor Xxxxx'x has outstanding any rating of
the senior unsecured long-term debt or subordinated unsecured long-term debt of
the U.S. Borrower.
(h) A certificate of an officer of the U.S. Borrower certifying on
behalf of the U.S. Borrower, as of the date hereof, that the representations
and warranties contained in Section 4.01 are correct and that no Default or
Event of Default exists.
(i) Such other approvals, opinions or documents as any Bank through
the U.S. Administrative Agent may reasonably request.
Section 3.02. Conditions Precedent to Each Accommodation. The
obligation of each Bank to make an Accommodation (other than (a) a renewal or
Conversion under
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Section 2.19, in each case under this clause (a) that does not result in any
increase in the amount of credit extended by any Canadian Bank to the Canadian
Borrower hereunder in the currency in which such credit was extended, (b) the
designation of a new Interest Period for an existing CD Rate Advance or
Eurodollar Advance or (c) any Conversion made other than pursuant to Section
2.19) on the occasion of each such Accommodation (including the initial
Borrowing or Drawing) shall be subject to the further conditions precedent that
on the date of such Accommodation the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing or Notice of Drawing
by a Borrower and the acceptance by such Borrower of the proceeds of such
Accommodation shall constitute a representation and warranty by such Borrower
that on the date of such Accommodation such statements are true):
(i) the representations and warranties contained in Section 4.01 and
the representations and warranties contained in the Guaranty are
true and correct on and as of the date of such Accommodation,
before and after giving effect to such Accommodation and any
other Accommodations being made by other Banks on such date and
to the application of the proceeds therefrom, as though made on
and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Accommodation or any other Accommodations being made by
other Banks on such date or from the application of the proceeds
therefrom, which constitutes a Default or an Event of Default,
and
(iii) after giving effect to such Accommodation and all other
Accommodations which have been requested on or prior to such date
to be outstanding on the date of such Accommodation, the sum of
the aggregate principal amount of all Canadian Advances plus the
aggregate Face Amount of all BA Obligations (in each case,
determined on the basis of the U.S. Dollar Equivalent thereof)
will not exceed the aggregate amount of the Commitments of the
Canadian Banks.
Section 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each Bank
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Banks unless an officer of the
U.S. Administrative Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Bank prior to the initial
Advance or Drawing specifying its objection thereto and such Bank
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shall not have made available to either Administrative Agent such Bank's
ratable portion of any Borrowing or Drawing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) The U.S. Borrower is a corporation duly organized and in good
standing under the laws of the State of Nevada, is duly qualified to do
business and is in good standing in every jurisdiction where such qualification
is required and has all requisite corporate power and authority to own its
properties and to conduct its business as now being conducted, except in each
case where the failure to do so would not reasonably be expected to have a
Material Adverse Effect. The Canadian Borrower is a corporation duly
incorporated under the laws of the Province of Ontario, is duly qualified to do
business and is in good standing in every jurisdiction where such qualification
is required and has all requisite corporate power and authority to own its
properties and to conduct its business as now being conducted, except in each
case where the failure to do so would not reasonably be expected to have a
Material Adverse Effect. Each Borrower is a validly existing corporation under
the laws of its jurisdiction of incorporation. Each Subsidiary of either
Borrower is a corporation or other entity duly organized or validly formed,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has all requisite power and authority to own its
properties and to conduct its business as now being conducted and is duly
qualified to do business and is in good standing in every jurisdiction where
such qualification is required, except in each case where the failure to do so
would not reasonably be expected to have a Material Adverse Effect.
(b) The U.S. Borrower owns all of the outstanding capital stock of
the Canadian Borrower, except for certain of the Exchangeable Shares. Each
Dividend Restricted Subsidiary, as of the date hereof, is listed on Schedule
VII.
(c) The execution, delivery and performance by the U.S. Borrower of
this Agreement, the Guaranty and the U.S. Notes and the consummation of the
transactions contemplated hereby (including each U.S. Borrowing hereunder) and
the transactions contemplated thereby (i) are within the U.S. Borrower's
corporate power, (ii) have been duly authorized by all necessary corporate
action, (iii) do not contravene or violate the
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U.S. Borrower's certificate of incorporation or by-laws or any law, rule,
regulation, order, writ, injunction, judgment, determination, award or decree
applicable to the U.S. Borrower, (iv) do not conflict with or result in the
breach of, constitute a default under, any contract, agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting the
U.S. Borrower, any Subsidiary of the U.S. Borrower or any of their properties,
except where such conflicts, defaults and breaches would not reasonably be
expected to have a Material Adverse Effect, and (v) will not result in or
require the creation or imposition of any Lien prohibited by this Agreement.
The execution, delivery and performance by the Canadian Borrower of this
Agreement, the Canadian Notes and the other Loan Documents executed by the
Canadian Borrower from time to time and the consummation of the transactions
contemplated hereby (including each Canadian Borrowing and each Drawing
hereunder) and the transactions contemplated thereby (i) are within the
Canadian Borrower's corporate power, (ii) have been duly authorized by all
necessary corporate action, (iii) do not contravene or violate the Canadian
Borrower's certificate of incorporation or by-laws or any law, rule,
regulation, order, writ, injunction, judgment, determination, award or decree
applicable to the Canadian Borrower, (iv) do not conflict with or result in the
breach of, or constitute a default under, any contract, agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting the
Canadian Borrower, any Subsidiary of the Canadian Borrower or any of their
properties, except where such conflicts, defaults and breaches would not
reasonably be expected to have a Material Adverse Effect, and (v) will not
result in or require the creation or imposition of any Lien prohibited by this
Agreement.
(d) No authorization, approval, consent, license or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required on the part of the U.S. Borrower or any of its Subsidiaries for the
due execution, delivery and performance by the U.S. Borrower of this Agreement,
the Guaranty and the U.S. Notes, or for the consummation of the transactions
contemplated hereby (including each U.S. Borrowing hereunder). No
authorization, approval, consent, license or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required on
the part of the Canadian Borrower or any of its Subsidiaries for the due
execution, delivery and performance by the Canadian Borrower of this Agreement,
the Canadian Notes and the other Loan Documents executed by the Canadian
Borrower from time to time, or for the consummation of the transactions
contemplated hereby (including each Canadian Borrowing and each Drawing
hereunder). As of the date hereof, neither the execution and delivery by the
U.S. Borrower or Canadian Borrower of the Loan Documents nor the performance of
their respective obligations thereunder will conflict with or result in any
breach of, or constitute a default under any indenture, mortgage,
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deed of trust, agreement or other instrument required to be filed by the U.S.
Borrower pursuant to item 601(b)(10) of Regulation S-K under the Securities
Exchange Act of 1934, as in effect on the date hereof. All authorizations,
licenses, consents, filings, approvals and certificates that are necessary to
enable each Borrower and each Subsidiary of each Borrower to carry on the
business in which it is engaged have been obtained or made and are in full
force and effect, and there has been no default by either Borrower or any such
Subsidiary under any of the terms thereof applicable to it, where the failure
to obtain such authorizations, licenses, consents, filings, approvals and
certificates, or such defaults, would reasonably be expected (in the aggregate)
to have a Material Adverse Effect.
(e) This Agreement, the Guaranty and the U.S. Notes have been duly
executed and delivered by the U.S. Borrower and constitute legal, valid and
binding obligations of the U.S. Borrower enforceable against the U.S. Borrower
in accordance with their respective terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally or by general principles of
equity. This Agreement and the Canadian Notes have been duly executed and
delivered by the Canadian Borrower and constitute, and each other Loan Document
when executed by the Canadian Borrower from time to time will constitute,
legal, valid and binding obligations of the Canadian Borrower enforceable
against the Canadian Borrower in accordance with their respective terms, except
as such enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally
or by general principles of equity.
(f) (i) The Consolidated balance sheet of the U.S. Borrower and the
Consolidated Subsidiaries as at December 31, 1995, and the related Consolidated
statements of income and cash flows of the U.S. Borrower and the Consolidated
Subsidiaries for the year then ended, a copy of which has been delivered to
each Bank listed on the signature pages hereof, have been reported on by Price
Waterhouse LLP and fairly present in all material respects the Consolidated
financial position of the U.S. Borrower and the Consolidated Subsidiaries as at
such date and the Consolidated results of their operations and cash flows for
the year then ended.
(ii) The pro forma Consolidated balance sheet of the U.S.
Borrower and the Consolidated Subsidiaries as at December 31, 1995, and the
related pro forma Consolidated statements of income and cash flows of the U.S.
Borrower and the Consolidated Subsidiaries for the year then ended, included in
the Joint Proxy Statement fairly present in all material respects the
information shown therein.
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(iii) The unaudited Consolidated balance sheet of the U.S.
Borrower and the Consolidated Subsidiaries as at September 30, 1996 and the
related unaudited Consolidated statements of income and cash flows of the U.S.
Borrower and the Consolidated Subsidiaries for the nine months then ended, a
copy of which has been furnished to each Bank listed on the signature pages
hereof, fairly present in all material respects, subject to year-end audit
adjustments, the Consolidated financial condition of the U.S. Borrower and the
Consolidated Subsidiaries as at such date and the Consolidated results of the
operations of the U.S. Borrower and the Consolidated Subsidiaries for the nine
months ended on such date.
(iv) The Consolidated balance sheet of the U.S. Borrower and the
Consolidated Subsidiaries as at December 31, 1996, and the related Consolidated
statements of income and cash flows of the U.S. Borrower and the Consolidated
Subsidiaries for the year then ended, a copy of which has been delivered to
each Bank listed on the signature pages hereof, have been reported on by Price
Waterhouse LLP and fairly present in all material respects the Consolidated
financial position of the U.S. Borrower and the Consolidated Subsidiaries as at
such date and the Consolidated results of their operations and cash flows for
the year then ended.
(v) Since December 31, 1996, there has been no material adverse
change in the business, condition (financial or otherwise), operations,
properties or reasonably foreseeable prospects of the U.S. Borrower and the
Consolidated Subsidiaries, taken as a whole.
(g) There is no pending or, to the knowledge of either Borrower,
threatened action, suit, litigation, investigation or proceeding (including any
Environmental Action, but excluding the Disclosed Litigation) affecting either
Borrower, any Subsidiary of either Borrower or any of its or their respective
rights or properties by or before any court, arbitrator or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that would reasonably be expected to have a Material Adverse Effect or
that in any manner draws into question or purports to affect any Accommodation
or the legality, validity, binding effect or enforceability of any of the Loan
Documents. There has been no material adverse change in the status, or
financial effect on the U.S. Borrower and the Consolidated Subsidiaries taken
as a whole, of the Disclosed Litigation. Neither Borrower nor any Subsidiary
of either Borrower is in default with respect to any applicable order, writ,
injunction or decree of any court, governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which default may
reasonably be expected to have a Material
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Adverse Effect or that in any manner draws into question or purports to affect
any Accommodation or the legality, validity, binding effect or enforceability
of any of the Loan Documents.
(h) (i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan, (ii) neither the U.S. Borrower nor any ERISA
Affiliate has incurred or is reasonably expected to incur any Withdrawal
Liability or has been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA, (iii) no Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of ERISA,
(iv) the respective Plans are, in all respects, funded in accordance with the
minimum statutory requirements, (v) to the knowledge of the U.S. Borrower and
the ERISA Affiliates, no termination of, or withdrawal from, any Plan has
occurred or is contemplated, and (vi) neither the U.S. Borrower nor any of the
Consolidated Subsidiaries has any liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of Financial
Accounting Standards No. 106 in addition to the amount disclosed in the U.S.
Borrower's report on Form 10-K for the year ended December 31, 1995, except
where the failure to comply with the foregoing would not reasonably be expected
to result in an aggregate liability in excess of U.S. $10,000,000. All
contributions or premiums required to be paid by the Canadian Borrower have
been paid in a timely fashion in accordance with the terms of all registered
pension plans sponsored or contributed to by the Canadian Borrower on behalf of
the employees of its Canadian operations except where the failure to do so
would not reasonably be expected to result in a liability of the Canadian
Borrower in excess of U.S. $10,000,000. To the knowledge of the Canadian
Borrower, no event has occurred and no condition or circumstance exists that
would reasonably be expected to result in any of its pension plans being
ordered or required to be terminated or wound-up in whole or in part, as a
result of which termination or winding up, the Canadian Borrower could
reasonably be expected to incur liability in excess of U.S. $10,000,000.
(i) Except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect, the Borrowers and each of their
Subsidiaries have filed all Federal, both U.S. and Canadian, and state and
provincial income tax returns which, to the knowledge of either Borrower, are
required to be filed, and each has paid all taxes as shown on said returns and
on all assessments received by it to the extent that such taxes and assessments
have become due (other than any taxes or assessments the amount, applicability
or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which the Borrowers and their Subsidiaries have
established adequate reserves in accordance with GAAP) with the appropriate
taxing
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authority. Federal, both U.S. and Canadian, and state and provincial income
tax returns of the Borrowers and their respective Subsidiaries have been
examined and reported on by the taxing authorities or closed by applicable
statutes and satisfied for all fiscal years prior to and including 1990.
(j) Neither Borrower is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. No Consolidated Subsidiary is required to be
registered under such Act, as amended.
(k) Neither the Borrower nor any Subsidiary of either Borrower is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U) or margin stock
(within the meaning of Regulation G). Following the application of the
proceeds of each Accommodation, not more than 25% of the value of the assets of
the U.S. Borrower will consist of assets which are any margin stock referred to
in this Section 4.01(k), not more than 25% of the value of the assets of the
Canadian Borrower will consist of assets which are any such margin stock, not
more than 25% of the value of the assets of the U.S. Borrower and its
Subsidiaries will consist of assets which are any such margin stock and not
more than 25% of the value of the assets of the Canadian Borrower and its
Subsidiaries will consist of assets which are any such margin stock. No
proceeds of any Accommodation will be used in any manner that is not permitted
by Section 5.02(k).
(l) Neither Borrower nor any Subsidiary of either Borrower is in
default under or with respect to any contract, agreement, lease or other
instrument to which either Borrower or any such Subsidiary is a party which
would reasonably be expected to have a Material Adverse Effect, and no Default
or Event of Default exists.
(m) As of the date hereof, there are no outstanding options, warrants
or other rights to purchase or acquire any capital stock of, or other ownership
interest in, the U.S. Borrower's direct or indirect interest in any Subsidiary
of the U.S. Borrower except conversion rights of the International Finance
Corporation with respect to 3.8% of the stock of Inti Raymi.
(n) The operations and properties of each Borrower and of each
Subsidiary of either Borrower comply with all applicable Environmental Laws and
Environmental Permits and all past non-compliance with such Environmental Laws
and Environmental Permits relating to the operations and properties of each
Borrower and each Subsidiary of a Borrower has been resolved without ongoing
obligations or costs to either Borrower or
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any such Subsidiary, except to the extent any failure to so comply, such past
non-compliance or such obligations and costs, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, and no
circumstances exist of which either Borrower has knowledge that would be
reasonably expected to (i) form the basis of an Environmental Action against
the Borrower or any of its Subsidiaries or any of their properties that would
reasonably be expected to have a Material Adverse Effect or (ii) cause any such
property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that would reasonably be expected
to have a Material Adverse Effect.
(o) Each Borrower and each Subsidiary of each Borrower have complied
with all laws, rules, regulations, judgments and orders applicable to it,
except where the failure to so comply (in the aggregate for all such failures)
would not reasonably be expected to have a Material Adverse Effect; provided
that compliance with Environmental Laws shall be as provided in Section
4.01(n).
(p) All written statements, information, exhibits, representations,
warranties and reports contained in any Loan Document or furnished to either
Administrative Agent or any Bank in connection with or pursuant to any Loan
Document or the preparation or negotiation of any Loan Document (including the
Pre-Commitment Information) taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements contained therein, in light of the circumstances under which
they were made, not misleading at the time of delivery or on the date hereof;
provided that the Borrowers' representation as to any projections included in
the foregoing are only that such projections were prepared in good faith on the
basis of the assumptions stated therein, which assumptions were believed to be
reasonable in light of the conditions existing at the time of delivery of such
projections and, with respect to the projections included in the Pre-Commitment
Information only, on the date hereof, it being understood that actual results
during the period or periods covered by such projections may differ therefrom.
ARTICLE V
COVENANTS OF THE BORROWERS
Section 5.01. Affirmative Covenants. So long as any Advance or any
other amount payable by either Borrower hereunder or under any Note shall
remain unpaid or any BA Obligation shall be outstanding or any Bank shall have
any Commitment hereunder, each Borrower will:
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(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable law, rules, regulations and orders
except to the extent that failure to so comply (in the aggregate for all such
failures) would not reasonably be expected to have a Material Adverse Effect;
provided that compliance with Environmental Laws shall be as provided in
Section 5.01(i).
(b) Preservation of Existence, Etc. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its existence, rights,
franchises and privileges, and qualify and remain qualified, and cause each of
its Subsidiaries to qualify and remain qualified, as a foreign corporation or
other entity in each jurisdiction in which qualification is necessary, except
where the failure to comply with this Section 5.01(b) would not (in the
aggregate for all such failures) reasonably be expected to have a Material
Adverse Effect; provided that nothing contained in this Section 5.01(b) shall
prevent any transaction permitted by Section 5.02(e) or Section 5.02(j);
provided further that in any event each Borrower agrees to preserve and
maintain its corporate existence (even if failure to do so would not reasonably
be expected to have a Material Adverse Effect).
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, with responsible and reputable insurance companies or
associations, insurance in such amounts and covering such risks as are usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which such Borrower or such Subsidiary
operates (which may include self-insurance in such amounts and covering such
risks as are usually self-insured by companies engaged in similar businesses
and owning similar properties in the same general areas in which such Borrower
or such Subsidiary operates) and insurance as may be required by law.
(d) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments, charges and like levies levied or imposed upon it or
upon its income, profits or property prior to the date on which penalties
attach thereto, and (ii) all other lawful claims that, if unpaid, might by law
become a Lien upon its property; provided that neither Borrower nor any
Subsidiary of either Borrower shall be required to pay and discharge any such
tax, assessment, charge, levy or claim if the failure to do so (in the
aggregate for all such failures) (1) would not result in one or more Liens in
excess of U.S. $10,000,000 in the aggregate and (2) would not reasonably be
expected to have a Material Adverse Effect.
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(e) Reporting Requirements. Furnish to each Bank (and the furnishing
by either Borrower of any item required by this Section 5.01(e) shall satisfy
the obligation of the other Borrower under this Section 5.01(e) to furnish such
item):
(i) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each
fiscal year of the U.S. Borrower, the Consolidated
balance sheet of the U.S. Borrower and the Consolidated
Subsidiaries as at the end of such quarter, the related
Consolidated statements of income and cash flows of the
U.S. Borrower and the Consolidated Subsidiaries for the
period commencing at the end of the previous fiscal year
and ending with the end of such quarter, the
consolidating balance sheet of the U.S. Borrower and the
Consolidated Subsidiaries as at the end of such quarter
(which consolidating balance sheet shall include a
consolidated balance sheet of the Canadian Borrower and
its Subsidiaries as at the end of such quarter) and the
consolidating income statement of the U.S. Borrower and
the Consolidated Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with
the end of such quarter (which consolidating income
statement shall include a consolidated income statement
of the Canadian Borrower and its Subsidiaries for such
period) in the case of each consolidated balance sheet
and statement of income setting forth, in comparative
form, the corresponding figures for the corresponding
period of the preceding fiscal year, all in reasonable
detail and certified on behalf of the U.S. Borrower by
the chief financial officer, treasurer or controller of
the U.S. Borrower as having been prepared in accordance
with GAAP subject, however, to year-end audit
adjustments, together with a certificate of such officer
on behalf of the U.S. Borrower (a) stating that he has no
knowledge that an Event of Default or Default has
occurred and is continuing or, if an Event of Default or
Default has occurred and is continuing, a statement as to
the nature thereof and the action, if any, which the
Borrowers propose to take with respect thereto, (b)
showing in reasonable detail the calculations of the
financial covenants set forth in Sections 5.03(a) and
5.03(b) as at the end of such quarter and the financial
covenant set forth in Section 5.03(c) for the four
quarter period ending at the end of such quarter, and (c)
listing each Dividend Restricted Subsidiary at the end of
such quarter;
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(ii) as soon as available and in any event within 100 days
after the end of each fiscal year of the U.S. Borrower,
(1) the audited Consolidated balance sheet of the U.S.
Borrower and the Consolidated Subsidiaries as at the end
of such fiscal year and the related audited Consolidated
statements of income and cash flows of the U.S. Borrower
and the Consolidated Subsidiaries for such fiscal year,
all reported on by Price Waterhouse LLP or other
independent certified public accountants of recognized
national standing, (2) the unaudited consolidating
balance sheet of the U.S. Borrower and the Consolidated
Subsidiaries as at the end of such fiscal year (which
consolidating balance sheet shall include a consolidated
balance sheet of the Canadian Borrower and its
Subsidiaries as at the end of such fiscal year) and the
unaudited consolidating income statement of the U.S.
Borrower and the Consolidated Subsidiaries for such
fiscal year (which consolidating income statement shall
include a consolidated income statement of the Canadian
Borrower and its Subsidiaries for such period), and (3) a
certificate of the chief financial officer, treasurer or
controller of the U.S. Borrower on behalf of the U.S.
Borrower (a) stating that he has no knowledge that an
Event of Default or Default has occurred and is
continuing or, if an Event of Default or Default has
occurred and is continuing, a statement as to the nature
thereof and the action, if any, which the Borrowers
propose to take with respect thereto, (b) showing in
reasonable detail the calculations of the financial
covenants set forth in Sections 5.03(a) and 5.03(b) as at
the end of such year and the financial covenant set forth
in Section 5.03(c) for the four quarter period ending at
the end of such year, and (c) listing each Dividend
Restricted Subsidiary at the end of such year;
(iii) promptly, and in any event within five U.S. Business Days
after either of the Borrowers has knowledge of the
occurrence of any Default or Event of Default continuing
on the date of such notice, a notice of the chief
financial officer, treasurer or controller of the U.S.
Borrower on behalf of the U.S. Borrower describing the
nature thereof in reasonable detail and the actions that
each Borrower has taken and proposes to take with respect
thereto;
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(iv) promptly, and in any event within five U.S. Business Days
after either of the Borrowers has knowledge of any
litigation, investigation or proceeding involving either
Borrower, any Subsidiary of either Borrower or any of
their respective property that would reasonably be
expected to have a Material Adverse Effect, written
notice thereof setting forth the details thereof and the
actions that each Borrower has taken and proposes to take
with respect thereto;
(v) promptly, and in any event within five U.S. Business
Days, after any commencement of, change in, or withdrawal
or termination of, the rating of any senior unsecured
long-term debt, subordinated unsecured long-term debt or
preferred stock of the U.S. Borrower by S&P or Xxxxx'x,
notice thereof;
(vi) promptly upon becoming available and in any event within
100 days after the end of each fiscal year of the U.S.
Borrower, the annual business plan of the U.S. Borrower
and the Consolidated Subsidiaries and forecasts prepared
by management of the U.S. Borrower, in form consistent
with that provided in connection with the Information
Memorandum, of balance sheets, income statements and cash
flow statements on an annual basis (including projected
production) for each of the next five fiscal years of the
U.S. Borrower (other than fiscal years commencing after
December 31, 2002) following such fiscal year then ended;
(vii) promptly after the sending or filing thereof, copies of
all reports that either Borrower sends to its
securityholders generally, and copies of all reports and
registration statements that either Borrower or any
Subsidiary of either Borrower files with the Securities
and Exchange Commission or any national securities
exchange;
(viii) promptly after either Borrower has knowledge of the
commencement thereof, notice of all actions and
proceedings before any court, governmental agency or
arbitrator affecting either Borrower or any Subsidiary of
either Borrower of the type described in Section 4.01(g);
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(ix) promptly and in any event within 10 days after the U.S.
Borrower knows that any ERISA Event has occurred, a
statement of an officer of the U.S. Borrower on behalf of
the U.S. Borrower describing such ERISA Event and the
action, if any, that the U.S. Borrower or any relevant
ERISA Affiliate has taken and proposes to take with
respect thereto;
(x) promptly and in any event within five Business Days after
receipt thereof by the U.S. Borrower, or within five
Business Days after the Borrower has knowledge of the
receipt thereof by any ERISA Affiliate, copies of each
notice from the PBGC stating its intention to terminate
any Plan or to have a trustee appointed to administer any
Plan;
(xi) promptly and in any event within 30 days after the
receipt thereof by the U.S. Borrower, or within five
Business Days after the U.S. Borrower has knowledge of
the receipt thereof, by any ERISA Affiliate, a copy of
the annual actuarial report for each Plan the funded
currently liability percentage (as defined in Section
302(d)(8) of ERISA) of which is less than 90% or the
unfunded current liability of which exceeds $1,000,000;
(xii) promptly and in any event within five Business Days after
receipt thereof by the U.S. Borrower, or within five
Business Days after the U.S. Borrower has knowledge of
the receipt thereof by any ERISA Affiliate, from the
sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of
any such Multiemployer Plan or (C) the amount of
liability incurred, or that may be incurred, by the U.S.
Borrower or any ERISA Affiliate in connection with any
event described in clause (A) or (B);
(xiii) promptly after either Borrower has knowledge of the
assertion or occurrence thereof, notice of any
Environmental action against or of any noncompliance by
either Borrower or any Subsidiary of either Borrower with
any Environmental Law or Environmental Permit that in the
case of any of the foregoing would reasonably be expected
to have a Material Adverse Effect;
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(xiv) promptly, and in any event within five Business Days
after footnote 2 of Schedule I is applicable, a
certificate of an officer of the U.S. Borrower certifying
on behalf of the U.S. Borrower the ratio of Total
Consolidated Debt to Total Capitalization as of December
31, 1996 and the ratio of EBITDA to Fixed Charges for the
four quarter period ended December 31, 1996, but no
certificate shall be required hereunder unless such
footnote 2 becomes applicable prior to July 1, 1997; and
(xv) such other information relating to the business,
operations, property, reasonably foreseeable prospects or
condition (financial or otherwise) of either Borrower or
any of their respective Subsidiaries as any Bank through
the U.S. Administrative Agent may from time to time
reasonably request.
(f) Visitation Rights. At any reasonable time during the Borrowers'
normal business hours and from time to time on reasonable notice to the U.S.
Borrower, permit each Administrative Agent or each of the Banks or any agents
or representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, each Borrower and
each Subsidiary of each Borrower, and to discuss the affairs, finances and
accounts of each Borrower and each Subsidiary of each Borrower with any of
their officers (but any expense of such Administrative Agent or such Bank, as
the case may be, in exercising its rights under this Section 5.01(f) shall be
borne by such Administrative Agent or such Bank, as the case may be, except
after the occurrence and during the continuance of an Event of Default as
contemplated by Section 8.04).
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which proper entries shall be made
of financial transactions and the assets and business of each Borrower and each
such Subsidiary in accordance with GAAP in accordance with Section 5.02(g).
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries, to maintain and preserve, all of its properties that
are used or useful in the conduct of their respective businesses in good
working order and condition, ordinary wear and tear excepted, provided that
this Section 5.01(h) shall not prevent either Borrower or any Subsidiary of
either Borrower from discontinuing the operation or maintenance of any of such
properties if such discontinuance would not reasonably be
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expected to have a Material Adverse Effect.
(i) Compliance with Environmental Laws. Except to the extent that
any failure to do any of the following would not reasonably be expected to have
a Material Adverse Effect, (i) comply, and cause each of its Subsidiaries, and
use commercially reasonable efforts to cause all lessees and other Persons
operating or occupying its properties to comply, in all material respects, with
all applicable Environmental Laws and Environmental Permits; (ii) obtain and
renew and cause each of its Subsidiaries, to obtain and renew all Environmental
Permits necessary for its operations and properties; and (iii) conduct, and
cause each of its Subsidiaries, to conduct, any investigation, study, sampling
and testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, that neither Borrower nor any of their Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to the extent
that its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such
circumstances.
(j) Maintenance of Permits, etc. Except to the extent that any
failure to do any of the following would not be reasonably expected to have a
Material Adverse Effect, (i) comply, cause each of its Subsidiaries to comply,
and use commercially reasonable efforts to cause all lessees and other Persons
operating or occupying its properties to comply, in all material respects, with
all permits, licenses, intellectual property and approvals (other than
Environmental Permits); and (ii) preserve, maintain, renew and keep in full
force and effect and cause each of its Subsidiaries to preserve, maintain,
renew and keep in full force and effect, all permits, licenses, intellectual
property and approvals (other than Environmental Permits); provided that
nothing contained in this Section 5.01(j) shall prevent any transaction
permitted by Section 5.02(e) or 5.02(j).
(k) Separate Operations. Cause each of its Dividend Restricted
Subsidiaries to conduct its business and operations separately from that of
each Borrower and its Subsidiaries, including (i) not allowing funds or other
assets of any of its Dividend Restricted Subsidiaries to be commingled with the
funds or other assets of either Borrower or its Subsidiaries except to the
extent segregated in the Borrowers' books and records and by intercompany
accounts, (ii) maintaining with respect to each of its Dividend Restricted
Subsidiaries corporate and financial records separate from those of either
Borrower and its Subsidiaries and observing appropriate corporate or other
organizational formalities, including maintaining corporate or other
organizational minute books and acting pursuant to corporate or other
organizational resolutions, and
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(iii) causing each of its Dividend Restricted Subsidiaries (other than NML and
CBR and, with respect to NML and CBR, the U.S. Borrower shall use reasonable
efforts to the extent consistent with the fiduciary duties of the U.S. Borrower
as a shareholder of NML and CBR and of the representatives of the U.S. Borrower
on NML's and CBR's Boards of Directors) to maintain (or be entitled to coverage
under) insurance adequate to meet its business needs.
(l) Material Contracts. Perform and observe, and cause each
Subsidiary of either Borrower to perform and observe, all of the terms and
provisions of all leases, documents, contracts and other agreements, except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
(m) ERISA. Comply in the case of the U.S. Borrower, and cause each
of its Subsidiaries (in the case of the U.S. Borrower) to comply, with ERISA
and all applicable law, rules, regulations and orders pertaining thereto and
not have any liability with respect to "expected post retirement obligations"
within the meaning of Statement of Financial Accounting Standards No. 106 in
addition to the amount disclosed in the U.S. Borrower's report on Form 10-K for
the year ended December 31, 1995, except where the failure to comply with this
Section 5.01(m) would not reasonably be expected to result in an aggregate
liability in excess of $10,000,000.
(n) Collateral Account. In the event that the Banks shall have
declared the Notes to be due and payable pursuant to Section 6.01 or if a
deposit in the Canadian Cash Collateral Account is required pursuant to Section
2.09 or 2.14 or made pursuant to Section 2.04(d), take such actions, to the
extent not prohibited by applicable law, as may be requested by the Canadian
Administrative Agent to establish and maintain, and create and maintain a
perfected first priority security interest in favor of the Canadian
Administrative Agent for the equal and ratable benefit of the Canadian Banks
securing repayment of the BA Obligations in, one or more collateral accounts
(collectively, the "Canadian Cash Collateral Account"), over which the Canadian
Administrative Agent shall have sole dominion and control, for purposes of
making and holding the deposits required or permitted hereunder to be made to
the Canadian Cash Collateral Account and any Canadian treasury obligations
acquired in accordance with the next sentence hereof. To the extent that a
perfected first priority security interest cannot be taken and maintained in
the Canadian Cash Collateral Account under applicable Canadian law or to the
extent that any such deposits under the sole dominion and control of the
Canadian Administrative Agent are not retained in the Canadian Cash Collateral
Account, the Canadian Administrative Agent may (and if instructed by the
Required Banks, shall) invest such deposits in Canadian treasury obligations,
and such Canadian treasury
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obligations shall be subject to such security interest.
Section 5.02. Negative Covenants. So long as any Advance or any other
amount payable by either Borrower hereunder or under any Note shall remain
unpaid or any BA Obligation shall be outstanding or any Bank shall have any
Commitment hereunder, neither Borrower will:
(a) Liens. Create, assume, incur or suffer to exist, or permit any
of its Subsidiaries to create, assume, incur or suffer to exist, any Lien on or
in respect of any property, whether now owned or hereafter acquired, of the
Borrower or any Subsidiary of the Borrower, or assign, or permit any of its
Subsidiaries to assign any right to receive income (other than any right to
receive income that is accounted for as a sale in accordance with GAAP) except
that the Borrower and any such Subsidiary may create, incur, assume or suffer
to exist Permitted Liens.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt other
than:
(i) principal of and interest on the Accommodations;
(ii) trade accounts payable (including trade accounts payable
in the ordinary course of business between and among the Borrowers and the
Consolidated Subsidiaries);
(iii) Capitalized Leases, not to exceed in the aggregate
$50,000,000 at any time outstanding;
(iv) unsecured Debt of the U.S. Borrower, which unsecured Debt
ranks subordinate to or pari passu with Debt under this Agreement
(including all obligations of the U.S. Borrower in respect of its Prepaid
Forward Sales Agreements);
(v) Debt that (A) exists on the date hereof and (B) if
material, is described in the Information Memorandum or described on
Schedule V;
(vi) purchase money debt not in excess of 90% of the value of
the assets acquired;
(vii) Debt of any Person that becomes a Subsidiary of either
Borrower
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(including any Person that becomes a Subsidiary of either Borrower upon
CBR or NML becoming a Wholly-Owned Subsidiary of either Borrower) after
the date hereof that is existing at the time such Person becomes a
Subsidiary of such Borrower (other than Debt incurred in contemplation of
such Person becoming a Subsidiary of either Borrower);
(viii) Debt assumed by a Borrower pursuant to its acquisition of
assets of another Person if the sum of such Debt plus all other Debt of
any Person secured by any of such assets acquired does not exceed 90% of
the fair market value of such assets so acquired;
(ix) Debt between and among the Borrowers and their
Subsidiaries that are not Dividend Restricted Subsidiaries; provided that
Debt owed by the U.S. Borrower to the Canadian Borrower or any Subsidiary
of either Borrower shall be subordinated on the terms set forth on Exhibit
M-1 to the "Senior Debt" as therein defined and Debt owed by the Canadian
Borrower to any such Subsidiary shall be subordinated on the terms set
forth on Exhibit M-2 to the "Senior Debt" as therein defined;
(x) tax-exempt Debt of the type described in paragraph (j) of
the definition herein of "Permitted Liens" secured by Liens permitted by
such paragraph (j);
(xi) secured and unsecured Project Financing Debt on
properties (excluding any facilities existing as of the date hereof and
excluding any and all proven and probable reserves as of the date hereof
disclosed in the Information Memorandum, in each case at the Golden Giant,
Battle Mountain Complex (other than the Phoenix Project) or Xxxxxxxx
properties or any interests in any such facilities or reserves);
(xii) interest rate, foreign exchange and commodity price
hedging obligations entered into in the ordinary course of business or in
connection with Debt otherwise permitted by this Section 5.02(b), in each
case other than for speculative purposes, and guaranties by the U.S.
Borrower of such obligations of the Consolidated Subsidiaries and other
Affiliates of the U.S. Borrower;
(xiii) Subordinated Debt of the U.S. Borrower;
(xiv) Debt that constitutes Permitted Investments.
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(xv) additional unsecured Debt (including Debt related to
Prepaid Forward Sales Agreements) of the Canadian Borrower and
Subsidiaries of either Borrower in an aggregate outstanding principal
amount not exceeding U.S. $100,000,000 at any time;
(xvi) additional obligations in an aggregate outstanding
principal amount not exceeding U.S. $1,000,000 at any time secured by the
Permitted Liens described in paragraph (t) of the definition herein of
"Permitted Liens"; and
(xvii) renewals, extensions and refinancings of the Debt
described in paragraphs (v), (vi), (vii), (viii), (x) and (xi) of this
Section 5.02(b) so long as the amount thereof does not exceed the amount
outstanding at the time of such renewal, extension or refinancing and no
Lien related to such renewal, extension or refinancing is placed on any
property that did not secure such Debt immediately prior to such renewal,
extension or refinancing.
(c) Change in Nature of Business. Make, or permit any Subsidiary of
either Borrower to make, any change in the nature of their respective
businesses if after giving effect to such change the nature of the business of
the Borrowers and their Subsidiaries, taken as a whole, would have changed in
any material respect from that existing on the date hereof.
(d) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Funded Debt
(other than any of the Accommodations) outstanding on the date hereof, or
permit any Subsidiary of either Borrower to do so, other than (i) the
prepayment of the Advances in accordance with the terms of this Agreement, (ii)
regularly scheduled or required repayments or redemptions of Subordinated Debt,
or any mandatory prepayment or mandatory conversion of indebtedness of Inti
Raymi existing on the date hereof and described on Schedule VI, in each case on
the terms existing on the date hereof, (iii) conversion of any Debt into
capital stock of the U.S. Borrower and cash payments not exceeding $1,000,000
in the aggregate in lieu of fractional shares of such stock, (iv) prepayments,
redemptions or purchases of Subordinated Debt made from Equity Proceeds or from
the net proceeds received from the sale of Subordinated Debt of the U.S.
Borrower after the date of this Agreement which Debt has an average life and
maturity no shorter than the Subordinated Debt being so prepaid, redeemed or
purchased and (v) prepayments of Subordinated Debt, redemptions of Subordinated
Debt and purchases of Subordinated Debt, each in an
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amount less than or equal to the amount then outstanding (and whether or not in
connection with a simultaneous partial refinancing from Equity Proceeds or by
the issuance of other Subordinated Debt having an average life and maturity no
shorter than the refinanced Subordinated Debt), if, in each case under this
clause (v), (1) no Advances or BA Obligations are outstanding, (2) no Default
or Event of Default exists or would result, and (3) no proceeds of any Advance
or Drawing are directly or indirectly used for such redemption, prepayment,
purchase or refinancing, and upon any such redemption, prepayment or purchase,
the maximum Total Consolidated Debt to Total Capitalization ratio covenant set
forth in Section 5.03(a) will be reduced ratably by 1% for each $10,000,000 of
Subordinated Debt that is so redeemed, purchased or prepaid in excess of
$10,000,000 until (if ever) subsequently refinanced from Equity Proceeds or by
other Subordinated Debt having an average life and maturity no shorter than the
refinanced Subordinated Debt (the aggregate of such percentage reductions at
any time being the "Ratio Reduction Percentage"). For example, if an aggregate
of $23,000,000 of Subordinated Debt is redeemed under such clause (v), the
Ratio Reduction Percentage would be 1.3%.
(e) Mergers, Etc. Merge, amalgamate or consolidate with or into, or
permit any of its Subsidiaries to merge, amalgamate or consolidate with or
into, any Person or convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions), or permit any such Subsidiary
to convey, transfer, lease or otherwise dispose of (whether in one transaction
or in a series of transactions), all or substantially all of its assets to any
Person; provided that this Section 5.02(e) shall not prohibit any transaction
if (1) at the time of, and after giving effect to, such transaction, no Default
or Event of Default exists or would result therefrom, and (2) both Borrowers
continue to exist after giving effect to any such transaction (other than an
amalgamation involving the Canadian Borrower) or, in the case of any
amalgamation involving the Canadian Borrower, the U.S. Borrower continues to
exist and the amalgamated entity resulting from such amalgamation assumes in
writing all of the obligations of the Canadian Borrower under the Loan
Documents.
(f) Restrictions on Dividends, Loans and Investments. Create or
otherwise cause or permit to exist or become effective, or permit any of its
Subsidiaries to create or otherwise cause or permit to exist or become
effective, any consensual encumbrance or restriction (other than this
Agreement) on the ability of the Canadian Borrower or, except for Permitted
Restrictions, any Subsidiary of either Borrower to (i) pay dividends or make
any other distributions on capital stock or pay any Debt owed to any Upstream
Owner of the Canadian Borrower or such Subsidiary, as the case may be, (ii)
make any loans or advances to or investments in either Borrower or any Upstream
Owner of the
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Canadian Borrower or such Subsidiary, as the case may be, or (iii) transfer any
property to either Borrower or any Upstream Owner of the Canadian Borrower or
such Subsidiary, as the case may be.
(g) Accounting. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in (i) accounting policies or reporting practices
(other than (A) changes permitted by GAAP, unless its auditors state in their
report that they do not concur with such changes, and (B) changes required by a
change in GAAP) or (ii) its Fiscal Year (except that any Subsidiary that has,
on the date hereof or at the time it becomes a Subsidiary of either Borrower, a
fiscal year that does not end on December 31 may maintain such fiscal year).
(h) Affiliate Transaction. Make, or permit any of its Subsidiaries
to make, directly or indirectly: (i) any transfer, sale, lease or other
disposition of any Property to any Affiliate of either Borrower or of any
Subsidiary of either Borrower or any purchase or acquisition of any Property
from any such Affiliate; or (ii) any other arrangement or transaction directly
or indirectly with or for the benefit of any such Affiliate (including
guaranties and assumptions of obligations of an Affiliate); provided that (A)
the Borrower and any Subsidiary of either Borrower may enter into any
arrangement or other transaction with any such Affiliate if the arrangement or
other transaction is substantially at least as advantageous to such Borrower or
such Subsidiary, as the case may be, as would be obtained in a comparable arm's
length transaction with a Person not an Affiliate; (B) any of the Borrowers and
Wholly-Owned Subsidiaries of the U.S. Borrower that are not Dividend Restricted
Subsidiaries may engage in transactions with any of (1) the other Wholly- Owned
Subsidiaries of the U.S. Borrower that are not Dividend Restricted Subsidiaries
and (2) the Borrowers; (C) the Borrowers and their Consolidated Subsidiaries
may engage in transactions between and among each other if such transactions
are not detrimental in any material respect to either Borrower; (D) the
Borrowers and their Subsidiaries may pay reasonable compensation and make
reasonable advances to employees and reasonable loans to officers and
directors; (E) the Borrowers and their Subsidiaries may make Investments set
forth in clauses (b), (d) and (g) of the definition herein of Permitted
Investments, even though such Investments are not made on an arm's length
basis; and (F) the Borrowers and their Subsidiaries may make Investments set
forth in clauses (c) and (h) of the definition herein of Permitted Investments
if such Investments are not materially detrimental to any Borrower, even though
such Investments are not made on an arm's length basis.
(i) Restricted Payments. Directly or indirectly, declare (in the
case of the U.S. Borrower), pay or make, or permit any of its Subsidiaries,
directly or indirectly, to
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pay or make, any Restricted Payment, unless (i) no Default or Event of Default
exists at the time of such Restricted Payment and (ii) no Default or Event of
Default would result from such Restricted Payment; provided that this Section
5.02(i) will not prohibit the U.S. Borrower from paying any dividend or other
distribution in respect of its capital stock within 90 days of the declaration
thereof if at such date of declaration such payment would have complied with
the provisions of this Section 5.02(i).
(j) Asset Disposition. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any property of either Borrower or any Subsidiary of either
Borrower, except (a) sales, leases, transfers and other dispositions of
inventory in the ordinary course of business, including Permitted Prepaid
Forward Sales, (b) sales, leases, transfers and other dispositions in the
ordinary course of business of equipment that is obsolete or no longer used by
either Borrower or any Subsidiary of either Borrower, (c) sales, leases,
transfers and other dispositions of assets to the Borrowers or to Subsidiaries
of either Borrower that are not Dividend Restricted Subsidiaries, (d) forward
sales of metals if the aggregate amount of any metal required to be delivered
pursuant to such forward sales in any calendar year does not exceed 80% of the
projected production of such metal by the Borrowers and their Subsidiaries as
shown in the most recent business plan delivered to the Banks pursuant hereto,
(e) sales of assets described in, and on the conditions set forth in, a letter
dated the date hereof from the U.S. Borrower to the Banks listed on the
signature pages hereof and the Administrative Agents referring to this Section
5.02(j), (f) sales, leases, transfers, and other dispositions of assets from a
Dividend Restricted Subsidiary to another Dividend Restricted Subsidiary, (g)
the transfer of 3.8% of the stock of Inti Raymi pursuant to the arrangement
with the International Finance Corporation described in Section 4.01(m), and
(h) sales, transfers, leases and other dispositions of assets for fair market
value not otherwise permitted by this Section 5.02(j) if the aggregate fair
market value of all such assets does not exceed, in any fiscal year of the U.S.
Borrower, 7% of the Consolidated Tangible Net Worth at the close of the
immediately preceding year. Notwithstanding the foregoing, this Section
5.02(j) shall not restrict the making of any Investment permitted under Section
5.02(l) by an investor using any asset (other than cash) in any Person, and in
the event that (X) such Investment is not otherwise excepted from this Section
5.02(j) under any of clauses (a) through (f) of this Section 5.02(j), and (Y)
such asset shall become subject to a subsequent sale, lease, transfer or
disposition, which is not otherwise excepted from this Section 5.02(j) by any
of clauses (a) through (f) of this Section 5.02(j), by such Person, then upon
the occurrence and at the time of such subsequent sale, lease, transfer or
disposition, such asset shall be subject to clause (h) of this Section 5.02(j)
if, and only if, at the time such Investment was originally made, the Borrower
or Subsidiary that made such Investment did so with the original intention that
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such asset would become subject to such subsequent sale, lease, transfer or
disposition by such other Person. Any use of cash not otherwise prohibited by
this Agreement shall be permitted under this Section 5.02(j).
(k) Use of Proceeds. Use the proceeds of any Advance or other
Accommodation for any purpose other than for working capital for, and general
business purposes of, the Borrowers and, subject to the terms of this
Agreement, their Consolidated Subsidiaries, including acquisitions; or use any
such proceeds to purchase or carry any margin stock (as defined in Regulation
U) or any margin stock (as defined in Regulation G), or to extend credit to
others for that purpose.
(l) Investments. Make or hold any Investment, or permit any of its
Subsidiaries to make or hold, any Investment except Permitted Investments.
(m) Partnerships. Become, or permit any of its Subsidiaries (other
than through a Consolidated Subsidiary the sole asset of which consists of its
interest in such partnership or joint venture) to become, a general partner in
any partnership or joint venture such that it is fully and generally liable for
the obligations thereof.
(n) Ownership. Sell, issue or otherwise dispose of or commit to
sell, issue or otherwise dispose of, or create, incur, assume or suffer to
exist any consensual Lien (other than Liens described in paragraphs (e), (f),
(g), (i) and (q) of the definition herein of "Permitted Liens") on or in
respect of, or permit any of its Subsidiaries to sell, issue or otherwise
dispose of or commit to sell, issue or otherwise dispose of, or create, incur,
assume or suffer to exist any consensual Lien (other than Liens described in
paragraphs (e), (f), (g), (i) and (q) of the definition herein of "Permitted
Liens") on or in respect of, minority interests in the Canadian Borrower or,
except as permitted by Section 5.02(j), any Subsidiary of either Borrower
(including, in each case, options, warrants and other rights to acquire any
such interest) nor issue preferred stock or other preferred or puttable equity
interests in the Canadian Borrower or, except as permitted by Section 5.02(j),
any Subsidiary of either Borrower (including, in each case, options, warrants
and other rights to acquire any such interest); provided that nothing in this
Section 5.02(n) shall restrict any issuances of common stock of the Canadian
Borrower substantially similar to the Exchangeable Shares.
(o) Certain Assets. Except as otherwise permitted by clauses (a),
(b), (d) and (h) of Section 5.02(j), sell, lease, transfer or otherwise
dispose of, or permit any Subsidiary of either Borrower to sell, lease,
transfer or otherwise dispose of, any facilities existing as of the date hereof
or any proven and probable reserves as of the date hereof
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disclosed in the Information Memorandum, in each case at the Golden Giant,
Battle Mountain Complex (other than the Phoenix Project) or Xxxxxxxx properties
or any interests in any such facilities or reserves, to any Person other than a
Wholly-Owned Subsidiary of the U.S. Borrower that is not a Dividend Restricted
Subsidiary, or permit any Person that on or after the date hereof has received
any facilities existing as of the date hereof or any proven and probable
reserves as of the date hereof disclosed in the Information Memorandum, in each
case at the Golden Giant, Battle Mountain Complex (other than the Phoenix
Project) or Xxxxxxxx properties or any interests in any such facilities or
reserves, to cease to be a Wholly-Owned Subsidiary of the U.S. Borrower that is
not a Dividend Restricted Subsidiary.
Section 5.03. Financial Covenants. So long as any Advance or any other
amount payable by either Borrower hereunder or under any Note shall remain
unpaid or any BA Obligation shall be outstanding or any Bank shall have any
Commitment hereunder, the U.S. Borrower will:
(a) Debt to Capitalization. Maintain at all times a ratio of Total
Consolidated Debt to Total Capitalization equal to or less than (i) 42.5% minus
(ii) the Ratio Reduction Percentage, if any, at such time.
(b) Minimum Consolidated Tangible Net Worth. Maintain at all times a
Consolidated Tangible Net Worth equal to or greater than the sum of (i) U.S.
$430,000,000, plus (ii) 50% of cumulative Consolidated net income of the U.S.
Borrower, if positive, after September 30, 1996, plus (iii) 50% of aggregate
Equity Proceeds received by the U.S. Borrower after September 30, 1996 plus
(iv) 50% of the principal amount of any Debt of the U.S. Borrower or any
Consolidated Subsidiary converted into capital stock of the U.S. Borrower after
September 30, 1996.
(c) Fixed Charge Coverage Ratio. Cause (i) for each period of four
consecutive fiscal quarters of the U.S. Borrower ending on or before September
30, 1998, the ratio of EBITDA to Fixed Charges to be equal to or greater than
2.75 to 1, and (ii) for each period of four consecutive fiscal quarters of the
U.S. Borrower ending after September 30, 1998, the ratio of EBITDA to Fixed
Charges to be equal to or greater than 3.5 to 1.
Section 5.04. Non-Wholly Owned Entities and Joint Ventures. In respect
of all covenants and agreements of the Borrowers to cause or permit or not
permit any activities by any Subsidiaries of any Borrower or other entities or
joint ventures that are not wholly-owned (directly or indirectly) by any
Borrower, each of the Borrowers expressly
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advises the Administrative Agents and the Banks that: (a) each of the
Borrowers may be subject to fiduciary or other duties as shareholders, partners
or otherwise or to legal obligations under or in connection with relevant joint
venture or other organizational agreements or documents (such duties and
obligations herein referred to as "Duties"); and (b) each of the Borrowers
fully intends to comply with all of its respective Duties. Each of the
Borrowers expressly agrees that all provisions of this Agreement and the other
Loan Documents will be construed and enforced without reference to the
foregoing sentence of this Section 5.04. Without limitation to the foregoing,
each of the Borrowers understands and agrees that, in the event that a Duty of
a Borrower with respect to a non-wholly-owned entity were to conflict with such
Borrower's compliance of a covenant or agreement in this Agreement or any other
Loan Document, such Borrower's failure to comply with such covenant or
agreement would not be excused and would have the same consequences as if such
Borrower had failed to comply with such covenant or agreement with respect to a
wholly-owned entity.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Either Borrower (1) shall fail to pay any principal of any Advance or
any portion of any BA Obligation (other than as required by Section 2.05(c))
when the same becomes due and payable, whether at the due date thereof or by
acceleration thereof or otherwise or (2) shall fail to pay any amount required
by Section 2.05(c) or any interest on any Advance or any fees hereunder or
other amount payable hereunder, in each case covered by this clause (2) within
five days of when the same becomes due and payable, whether at the due date
thereof or by acceleration thereof or otherwise; or
(b) Any representation, warranty or certification made by either Borrower
herein or by either Borrower (or any officer on behalf of either Borrower)
pursuant to or in connection with this Agreement or the Guaranty or in any
certificate or notice furnished to any Bank pursuant to or in connection with
this Agreement or the Guaranty, or any representation or warranty deemed to
have been made by either Borrower pursuant to Section 3.02, shall not be
correct in all material respects when made or so deemed to have been made,
except as specifically provided in the proviso to Section 4.01(p) with respect
to projections; or
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(c) Either Borrower shall fail to perform or observe (i) any covenant
or agreement contained in the second proviso to Section 5.01(b), Section
5.01(c), 5.01(k), 5.01(n) (except to the extent Section 5.01(n) is applicable
as a result of Section 2.14), 5.02(d), 5.02(e), 5.02(f), 5.02(i), 5.02(k),
5.02(n), 5.03(a), 5.03(b) or 5.03(c) or Section 1 of the Guaranty on its part
to be performed or observed, (ii) any covenant or agreement contained in
Section 5.01(n) to the extent Section 5.01(n) is applicable as a result of
Section 2.14, 5.02(a), 5.02(b), 5.02(c), 5.02(h), 5.02(j), 5.02(l) or 5.02(m)
and such failure shall remain unremedied for 10 days after either Borrower has
knowledge of such failure or notice thereof shall have been given to the U.S.
Borrower by either Administrative Agent or by any Bank, or (iii) any other
covenant or agreement contained in this Agreement or the Guaranty (other than
any covenant or agreement covered by clause (i) or clause (ii) of this Section
6.01(c) or by Section 6.01(a)) and such failure shall remain unremedied for 30
days after either Borrower has knowledge of such failure or notice thereof
shall have been given to the U.S. Borrower by either Administrative Agent or by
any Bank; or
(d) Either Borrower or any Subsidiary of either Borrower shall
default in the payment when due (subject to any applicable grace period and
subject, in the case of any guaranty, to payment under such guaranty having
become due), whether by scheduled maturity, required prepayment, demand,
acceleration or otherwise, of any Debt (whether principal, interest, premium or
otherwise, but excluding any Project Financing Debt and any Debt covered by
Section 6.01(a)) of, or directly or indirectly guaranteed by, either Borrower
or any Subsidiary of either Borrower, as the case may be, having a principal
amount or net payment obligation in excess of $10,000,000 then outstanding or
either Borrower or any Subsidiary of either Borrower shall default in the
performance or observance of, shall breach or shall fail to perform or observe,
any obligation or condition with respect to any such Debt if the effect of such
default, breach or failure (whether or not such default, breach or failure is
denominated a "default") after giving effect to any applicable grace period is
to accelerate the maturity of any such Debt; or
(e) Either Borrower or any Subsidiary of either Borrower shall be
adjudicated a bankrupt or insolvent by a court of competent jurisdiction, or
"generally not pay its debts as such debts become due" within the meaning of a
bankruptcy, insolvency or similar law, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against either
Borrower or any Subsidiary of either Borrower seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, provisional liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of
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debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the foregoing
actions sought in such proceeding (including the entry of an order for relief
against it or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its Property) shall
occur; or either Borrower or any Subsidiary of either Borrower shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 over the amount covered by insurance or any non-monetary judgment
or order (other than those non-monetary judgments and orders that would not
reasonably be expected to have a Material Adverse Effect) shall be rendered
against either Borrower or any Subsidiary of either Borrower and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days
during which such judgment or order shall remain unsatisfied (in the case of a
monetary judgment) and unstayed; or
(g) The U.S. Borrower or any of its ERISA Affiliates shall incur, or
shall be reasonably likely to incur, liability in excess of $10,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence of
any ERISA Event; (ii) the partial or complete withdrawal of the U.S. Borrower
or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; or
(h) Any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or the
liability of the U.S. Borrower and the ERISA Affiliates related to such ERISA
Event) exceeds $10,000,000; or
(i) The U.S. Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid after the date hereof to Multiemployer
Plans by the U.S. Borrower and the ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification), exceeds $10,000,000; or
(j) The U.S. Borrower or any ERISA Affiliate shall have been notified
by the
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sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate
contributions of the Borrowers and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $10,000,000
for all plan years; or
(k) The Canadian Borrower shall fail to pay in a timely fashion in
accordance with the terms of any registered pension plan sponsored or
contributed to by the Canadian Borrower on behalf of the employees of its
Canadian operations any contribution or premium required to be paid by the
Canadian Borrower to such pension plan, where all such failures in the
aggregate result in a liability of the Canadian Borrower in excess of U.S.
$10,000,000; or
(l) The occurrence of any event or existence of any condition or
circumstance that would reasonably be expected to result in any of the Canadian
Borrower's pension plans being ordered or required to be terminated or wound-
up in whole or in part, as a result of which termination or winding up, the
Canadian Borrower would reasonably be expected to incur liability in excess of
U.S. $10,000,000; or
(m) Any of the Loan Documents (other than the Canadian Notes, the
Drafts and the BA Equivalent Notes) shall for any reason cease to be the legal,
valid, binding and enforceable obligation of the U.S. Borrower or any of the
Loan Documents (other than the Guaranty and the U.S. Notes) shall cease to be
the legal, valid, binding and enforceable obligation of the Canadian Borrower
or either Borrower shall so state in writing;
then, and in any such event, the U.S. Administrative Agent (i) shall at the
request, or may with the consent, of the Required Banks, by notice to the
Borrowers, declare the obligation of each Bank to make Advances and of each
Canadian Bank to accept and/or purchase BA Obligations to be terminated,
whereupon the same (and all of the Commitments) shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Required Banks, by
notice to the Borrowers, declare the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Notes, all such interest and all such other amounts shall become and be
forthwith due and payable, without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or any other notice of any kind,
all of which are
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hereby expressly waived by the Borrowers (other than the notices provided in
the immediately preceding clauses (i) and (ii) above); provided, however, that
in the event of any Event of Default described in Section 6.01(e), (A) the
obligation of each Bank to make Advances and of each Canadian Bank to accept
and/or purchase BA Obligations (and all of the Commitments) shall automatically
be terminated, and (B) the Notes, all interest thereon and all other amounts
payable under this Agreement shall automatically and immediately become and be
due and payable, without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration, or any other notice of any kind, all of
which are hereby expressly waived by the Borrowers.
Section 6.02 Actions in Respect of BA Obligations. (a) If any Event
of Default shall have occurred and be continuing and the Canadian Notes shall
have been declared to be, or shall have automatically become, due and payable
pursuant to Section 6.01 or, if any BA Obligation shall be outstanding on or
after the Termination Date, the U.S. Administrative Agent shall at the request,
or may with the consent, of the Required Banks, irrespective of whether it is
taking any of the actions described in Section 6.01 or otherwise, make demand
upon the Canadian Borrower to, and forthwith upon such demand such Borrower
will, pay to the Canadian Administrative Agent on behalf of the Canadian Banks,
in same day funds, at the Canadian Administrative Agent's office designated in
such demand, for deposit in the Canadian Cash Collateral Account, an amount
equal to the aggregate Face Amount of all BA Obligations then outstanding.
(b) If any Event of Default shall have occurred and be continuing and
the Canadian Notes shall have been declared to be, or shall have automatically
become, due and payable pursuant to Section 6.01, or if any BA Obligation shall
be outstanding on or after the Termination Date, and either Administrative
Agent determines that any funds held in the Canadian Cash Collateral Account
are subject to any right or claim of any Person other than the Canadian Banks
to secure repayment of the BA Obligations or that the total amount of such
funds is less than the aggregate Face Amount of all outstanding BA Obligations,
the Canadian Borrower will, forthwith upon demand by the Canadian
Administrative Agent, pay to the Canadian Administrative Agent as additional
funds to be deposited and held in the Canadian Cash Collateral Account, an
amount equal to the excess of (A) the aggregate Face Amount of all outstanding
BA Obligations over (B) the total amount of funds, if any, then held in the
Canadian Cash Collateral Account that the Canadian Administrative Agent
reasonably determines to be free and clear of any such right or claim.
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ARTICLE VII
THE ADMINISTRATIVE AGENTS
Section 7.01. Authorization and Action. Each Bank hereby appoints and
authorizes each Administrative Agent to take such action as such agent on its
behalf and to exercise such powers under the Loan Documents as are delegated to
such Administrative Agent by the terms hereof or of any other Loan Document,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement (including
enforcement or collection of the Guaranty or any of the Notes), no
Administrative Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Required Banks and such instructions shall be binding upon all Banks and
all holders of Notes; provided, however, that no Administrative Agent shall be
required to take any action which exposes such Administrative Agent to personal
liability or which is contrary to any Loan Document or applicable law. The
U.S. Administrative Agent agrees to give to each U.S. Bank prompt notice of
each notice received by it pertaining to a U.S. Borrowing or a payment thereon
and to each Bank prompt notice of each other notice received by it (unless
notice thereof is given by the Canadian Administrative Agent). The Canadian
Administrative Agent agrees to give to each Canadian Bank prompt notice of each
notice received by it pertaining to a Canadian Borrowing, a Drawing or a
payment thereon and to each Bank prompt notice of each other notice received by
it (unless notice thereof is given by the U.S. Administrative Agent).
Section 7.02. Administrative Agents' Reliance, Etc. Neither
Administrative Agent nor any director, officer, agent or employee of either
Administrative Agent shall be liable to any Bank for any action taken or
omitted to be taken by it or them under or in connection with any Loan
Document, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Administrative
Agent: (i) may treat the payee of any Note as the holder thereof until such
Administrative Agent receives and accepts an Assignment and Acceptance entered
into by the Bank which is the payee of such Note, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 8.08; (ii) may consult with legal
counsel, independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants or experts;
(iii) makes no warranty or representation to any Bank and shall not be
responsible to any Bank for any statements, warranties or representations
(whether written or oral) made in or in connection with any of the Loan
Documents or any other instrument or document; (iv) shall not have any duty to
any Bank to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or
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conditions of any of Loan Documents or any other instrument or document on the
part of either Borrower or any Subsidiary of either Borrower or to inspect the
property (including the books and records) of either Borrower or any Subsidiary
of either Borrower; (v) shall not be responsible to any Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of any of the Loan Documents or any other instrument or document; and
(vi) shall incur no liability to any Bank under or in respect of any of Loan
Documents or any other instrument or document by acting upon any notice
(including telephonic notice), consent, certificate or other instrument or
writing (which may be by telecopier, telegram or telex) believed by it to be
genuine and signed, given or sent by the proper party or parties.
Section 7.03. Citibank, Citibank Canada and Affiliates. With respect
to its Commitment, the Advances owed to it and the Notes issued to it, each of
Citibank and Citibank Canada shall have the same rights and powers under the
Loan Documents as any other Bank and may exercise the same as though it were
not an Administrative Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include Citibank and Citibank Canada in its
individual capacity. Each of Citibank and Citibank Canada and their respective
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, the Borrowers, any Affiliate of either Borrower
and any Person who may do business with or own securities of either Borrower or
any Affiliate of either Borrower, all as if Citibank or Citibank Canada, as the
case may be, were not an Administrative Agent and without any duty to account
therefor to the Banks.
Section 7.04. Bank Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon either Administrative Agent or any
other Bank and based on the Financial Statements and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it
will, independently and without reliance upon either Administrative Agent or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents or any other instrument or document.
SECTION 7.05. INDEMNIFICATION. THE BANKS AGREE TO INDEMNIFY EACH
ADMINISTRATIVE AGENT (TO THE EXTENT NOT REIMBURSED BY THE BORROWER), RATABLY
ACCORDING TO THE RESPECTIVE PRINCIPAL AMOUNTS OF THE NOTES THEN HELD BY EACH OF
THEM (OR IF NO ADVANCES ARE AT THE TIME OUTSTANDING OR IF ANY NOTES ARE HELD BY
PERSONS WHICH ARE NOT BANKS, RATABLY ACCORDING TO EITHER (A) THE RESPECTIVE
AMOUNTS OF THEIR
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COMMITMENTS, OR (B) IF NO COMMITMENTS ARE AT THE TIME OUTSTANDING, THE
RESPECTIVE AMOUNTS OF THE COMMITMENTS IMMEDIATELY PRIOR TO THE TIME THE
COMMITMENTS CEASED TO BE OUTSTANDING), FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH
MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST SUCH ADMINISTRATIVE AGENT
IN ANY WAY RELATING TO OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OTHER
INSTRUMENT OR DOCUMENT FURNISHED PURSUANT HERETO OR IN CONNECTION HEREWITH, OR
ANY ACTION TAKEN OR OMITTED BY SUCH ADMINISTRATIVE AGENT UNDER ANY OF THE LOAN
DOCUMENTS OR ANY OTHER INSTRUMENT OR DOCUMENT FURNISHED PURSUANT HERETO OR IN
CONNECTION HEREWITH; PROVIDED THAT NO BANK SHALL BE LIABLE FOR ANY PORTION OF
SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES OR DISBURSEMENTS RESULTING FROM SUCH ADMINISTRATIVE
AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Without limitation of the
foregoing, each Bank agrees to reimburse either Administrative Agent promptly
upon demand for such Bank's ratable share of any out-of-pocket expenses
(including counsel fees) incurred by such Administrative Agent in connection
with enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, any of the
Loan Documents or any other instrument or document furnished pursuant hereto or
in connection herewith to the extent that such Administrative Agent is not
reimbursed for such expenses by the Borrower.
Section 7.06. Successor Administrative Agents. Subject to the
appointment of and acceptance by a successor Administrative Agent as provided
below, each Administrative Agent may resign at any time by giving written
notice thereof to the Banks and the Borrowers and may be removed at any time
with or without cause by the Required Banks. Upon any such resignation or
removal, the Required Banks shall have the right to appoint any Bank, or with
the consent of the U.S. Borrower (which consent shall not be unreasonably
withheld), any Eligible Assignee as a successor Administrative Agent to assume
the duties of such resigning or removed Administrative Agent. If no such
successor Administrative Agent shall have been so appointed by the Required
Banks (and, if not a Bank, approved by the Borrower), and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving of notice of resignation or the Required Banks' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Banks, appoint any Bank, or with the consent of the U.S. Borrower (which
consent shall not be unreasonably withheld), any Eligible Assignee as a
successor Administrative Agent. Upon the acceptance of any appointment as an
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the
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retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any
retiring Administrative Agent's resignation or removal hereunder as an
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was an
Administrative Agent under this Agreement. If any Administrative Agent resigns
or is removed as an Administrative Agent and if any Affiliate thereof continues
to perform its duties as an Administrative Agent ("Continuing Administrative
Agent"), upon the written request of the U.S. Borrower, the Continuing
Administrative Agent shall resign and may be replaced in accordance with the
provisions of this Section 7.06.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or any Note, nor consent to any departure by the Borrowers
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Banks, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that no such amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the following: (a) waive any of
the conditions specified in Section 3.01 or clause (iii) of Section 3.02, (b)
increase the Commitment of any Bank or subject any Bank to any additional
obligations (provided that no amendment or waiver of, or consent to any
departure from, any representation or warranty, covenant or Event of Default,
any of which would not otherwise require the approval of all of the Banks,
shall be deemed to "subject any Bank to any additional obligations" for the
purposes of this clause (b) only), (c) reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
BA Obligations or Drawing Fees payable hereunder, (e) change the percentage of
the Commitments or of the aggregate unpaid principal amount of the Notes and
aggregate Face Amount of BA Obligations which shall be required for the Banks
or any of them to take any action hereunder, (f) change the definition herein
of "Termination Date", or (g) amend this Section 8.01; and provided, further,
that no amendment, waiver or consent shall, unless in writing and signed by an
Administrative Agent in addition to the Banks required above to take such
action, affect the rights or duties of such Administrative Agent under this
Agreement or any of the Notes.
Section 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier communication)
and mailed,
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telecopied, or delivered, (a) if to the U.S. Borrower, at its address at 000
Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000, Attention: Treasurer, Telecopier: (713)
650-3636 (with a copy to General Counsel, Telecopier: (000) 000-0000); and if
to the Canadian Borrower, at its address at Royal Trust Tower, Suite 2500, 77
King Street West, Toronto, Ontario MK5 1JS, Attention: Treasurer, Telecopier:
(000) 000-0000 (with a copy to the U.S. Borrower); (b) if to any U.S. Bank
listed on the signature pages hereof, at its U.S. Domestic Lending Office
specified opposite its name on Schedule II; (c) if to any other U.S. Bank, at
its U.S. Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it becomes a Bank; (d) if to any Canadian Bank listed on the
signature pages hereof, at its Canadian Lending Office specified opposite its
name on Schedule II; (e) if to any other Canadian Bank, at its Canadian Lending
Office specified in the Assignment and Acceptance pursuant to which it becomes
a Bank; (f) if to the U.S. Administrative Agent, at its address at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Petroleum, Metals and
Mining Department, Telecopier: (000) 000-0000; and (g) if to the Canadian
Administrative Agent, at its address at 000 Xxxxx Xxxxxx West, 10th Floor,
Toronto, Ontario, Canada X0X 0XX, Attention: Xxxxxxxx Xxxxxxx, Telecopier:
(000) 000-0000; or, as to either Borrower or either Administrative Agent, at
such other address as shall be designated by such party in a written notice to
the other parties hereto and, as to each other party, at such other address as
shall be designated by such party in a written notice to the Borrower and the
Administrative Agents. Each such notice or communication shall be effective
(i) if mailed, three U.S. Business Days after deposit in the U.S. mail, (ii) if
delivered by hand (including by overnight delivery service), upon delivery, and
(iii) if telecopied, upon transmission and receipt of electronic confirmation
except that any notice or communication to any Administrative Agent pursuant to
Sections 2.02(a), 2.02(b), 2.03(a), 2.04(c), 2.09(a), 2.10, 2.15, 2.16 or 2.19
of this Agreement shall not be effective until actually received by such
Administrative Agent.
Section 8.03. No Waiver; Remedies. No failure on the part of any Bank
or either Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 8.04. Expenses and Taxes; Compensation; INDEMNITY. (a) Each
Borrower agrees to pay promptly, and in any event within 15 Business Days after
receiving a reasonably detailed statement setting forth the amount and nature
thereof, all reasonable out-of-pocket costs and expenses of each Administrative
Agent, the Arranger
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and their respective Affiliates in connection with the preparation, execution,
delivery, administration, modification, syndication and amendment of the Loan
Documents and the other documents to be delivered hereunder, including the
reasonable due diligence, syndication, transportation, computer, duplication,
printing, distribution and bank meeting expenses (but excluding allocated
overhead costs) and the reasonable fees and out-of-pocket expenses (excluding
allocated overhead costs) of counsel for each Administrative Agent with respect
thereto and with respect to advising either Administrative Agent as to its
rights and responsibilities under the Loan Documents and, after the occurrence
and during the continuance of an Event of Default, all reasonable out-of-pocket
costs and expenses of each Administrative Agent and each Bank, if any
(including reasonable counsel fees and expenses but excluding allocated
overhead costs), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of the Loan Documents and the
other documents to be delivered hereunder, including reasonable counsel fees
and expenses (but excluding allocated overhead costs) in connection with the
enforcement of rights under this Section 8.04(a).
(b) If any payment (or purchase pursuant to Section 2.17) of
principal of, or Conversion of, any Eurodollar Rate Advance or CD Rate Advance
is made other than on the last day of the Interest Period for such Advance, as
a result of a payment or Conversion pursuant to Section 2.08, Section 2.09,
Section 2.14 or Section 2.15, acceleration of the maturity of the U.S. Notes
pursuant to Section 6.01 or for any other reason or as a result of any such
purchase pursuant to Section 2.17, the U.S. Borrower shall, within 15 days
after demand by any Bank (with a copy of such demand to the U.S. Administrative
Agent), pay to the U.S. Administrative Agent for the account of such Bank any
amounts required to compensate such Bank for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment, purchase or
Conversion, including any loss (excluding loss of anticipated profits), cost or
expense actually incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Bank to fund or maintain such Advance.
A certificate as to the amount of such additional losses, costs or expenses,
submitted to the U.S. Borrower and the U.S. Administrative Agent by such Bank,
shall be conclusive and binding for all purposes, absent manifest error;
provided that the determination thereof is made on a reasonable basis. Such
certificate shall be in reasonable detail but such Bank shall not be required
to disclose any confidential or proprietary information therein. If any
payment of principal of, or Conversion of, any BA Obligation is made other than
on the Maturity Date for such BA Obligation, as a result of a payment or
Conversion pursuant to Section 2.08, Section 2.09, Section 2.14 or Section
2.15, acceleration or for any other reason the Canadian Borrower shall, within
15 days after demand by any Bank (with a copy of such demand to the Canadian
Administrative Agent), pay to the Canadian
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Administrative Agent for the account of such Bank any amounts required to
compensate such Bank for any additional losses, costs or expenses which it may
actually incur as a result of such payment, purchase or Conversion, including
any loss (excluding loss of anticipated profits), cost or expense actually
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Bank to fund or maintain such BA Obligation. A
certificate as to the amount of such additional losses, costs or expenses,
submitted to the Canadian Borrower and the Canadian Administrative Agent by
such Bank, shall be conclusive and binding for all purposes, absent manifest
error; provided that the determination thereof is made on a reasonable basis.
Such certificate shall be in reasonable detail but such Bank shall not be
required to disclose any confidential or proprietary information therein.
(c) EACH BORROWER AGREES TO INDEMNIFY AND HOLD HARMLESS EACH
INDEMNIFIED PARTY FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES,
LIABILITIES AND EXPENSES (INCLUDING REASONABLE FEES AND EXPENSES OF COUNSEL,
BUT EXCLUDING ALLOCATED OVERHEAD AND EXCLUDING, PRIOR TO THE OCCURRENCE OF AN
EVENT OF DEFAULT, LEGAL COSTS OF ANY OF THE BANKS OR ANY DIRECTOR, OFFICER,
EMPLOYEE, AFFILIATE, ADVISOR OR AGENT OF ANY OF THE BANKS) THAT MAY BE INCURRED
BY OR ASSERTED OR AWARDED AGAINST SUCH INDEMNIFIED PARTY, IN EACH CASE ARISING
OUT OF OR IN CONNECTION WITH OR BY REASON OF, OR IN CONNECTION WITH THE
PREPARATION FOR A DEFENSE OF, ANY INVESTIGATION, LITIGATION, OR PROCEEDING
ARISING OUT OF, RELATED TO OR IN CONNECTION WITH ANY OF THE COMMITMENTS OR ANY
LOAN DOCUMENT, WHETHER OR NOT SUCH INDEMNIFIED PARTY IS A PARTY THERETO, AND
WHETHER OR NOT ANY BORROWING OR DRAWING IS MADE HEREUNDER, AND INCLUDING ANY
SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE RESULTING FROM THE NEGLIGENCE OF
SUCH INDEMNIFIED PARTY, EXCEPT TO THE EXTENT SUCH CLAIM, DAMAGE, LOSS,
LIABILITY OR EXPENSE IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNIFIED PARTY.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, all obligations of the Borrowers under Section 2.11,
Section 2.12 and this Section 8.04 shall survive the termination of the
Commitments and this Agreement and the payment in full of all amounts hereunder
and under the Notes.
Section 8.05. Right of Set-Off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making by the Required Banks
of the request or the granting by the Required Banks of the consent specified
by Section 6.01 to authorize the U.S. Administrative Agent to declare the Notes
due and payable pursuant to the provisions of Section 6.01, each Bank is hereby
authorized at any time and from time
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to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank (or by any
branch thereof) to or for the credit or the account of either Borrower against
any and all of the obligations of such Borrower now or hereafter existing under
this Agreement or any Note held by such Bank, whether or not such Bank shall
have made any demand under this Agreement, the Guaranty or any such Note and
although such obligations may be unmatured. Each Bank agrees promptly to
notify the applicable Borrower after any such set-off and application made by
such Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Bank under this
Section are in addition to other rights and remedies (including other rights of
set-off) which such Bank may have.
Section 8.06. Limitation and Adjustment of Interest. (a)
Notwithstanding anything to the contrary set forth herein, in any other Loan
Document or in any other document or instrument, no provision of any of the
Loan Documents or any other instrument or document furnished pursuant hereto or
in connection herewith is intended or shall be construed to require the payment
or permit the collection of interest in excess of the maximum non-usurious rate
permitted by applicable law. Accordingly, if the transactions with any Bank
contemplated hereby would be usurious under applicable law, if any, then, in
that event, notwithstanding anything to the contrary in any Note payable to
such Bank, this Agreement, any other Loan Document or any other document or
instrument, it is agreed as follows: (i) the aggregate of all consideration
which constitutes interest under applicable law that is contracted for, taken,
reserved, charged or received by such Bank under any Note payable to such Bank,
this Agreement or any other Loan Document or under any other document or
instrument shall under no circumstances exceed the maximum amount allowed by
such applicable law, and any excess shall be canceled automatically and, if
theretofore paid, shall, at the option of such Bank, be credited by such Bank
on the principal amount of the indebtedness owed to such Bank by the relevant
Borrower or refunded by such Bank to such Borrower, and (ii) in the event that
the maturity of any Note payable to such Bank is accelerated or in the event of
any required or permitted prepayment, then such consideration that constitutes
interest under law applicable to such Bank may never include more than the
maximum amount allowed by such applicable law and excess interest, if any, to
such Bank provided for in this Agreement or otherwise shall be canceled
automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall, at the option of such Bank, be credited by such Bank
on the principal amount of the indebtedness owed to such Bank by the relevant
Borrower or refunded by such Bank to such Borrower. In determining whether or
not the interest contracted for, taken, reserved, charged or received by any
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Bank exceeds the maximum non-usurious rate permitted by applicable law, such
determination shall be made, to the extent that doing so does not result in a
violation of applicable law, by amortizing, prorating, allocating and
spreading, in equal parts during the period of the full stated term of the
loans hereunder, all interest at any time contracted for, taken, charged,
received or reserved by such Bank in connection with such loans.
(b) In the event that at any time the interest rate applicable to any
Advance made by any Bank would exceed the maximum non-usurious rate allowed by
applicable law, the rate of interest to accrue on the Advances by such Bank
shall be limited to the maximum non-usurious rate allowed by applicable law,
but shall accrue, to the extent permitted by law, on the principal amount of
the Advances made by such Bank from time to time outstanding, if any, at the
maximum non-usurious rate allowed by applicable law until the total amount of
interest accrued on the Advances made by such Bank equals the amount of
interest which would have accrued if the interest rates applicable to the
Advances pursuant to Article II had at all times been in effect. In the event
that upon the final payment of the Advances made by any Bank and termination of
the Commitment of such Bank, the total amount of interest paid to such Bank
hereunder and under the Notes is less than the total amount of interest which
would have accrued if the interest rates applicable to such Advances pursuant
to Article II had at all times been in effect, then the Borrower agrees to pay
to such Bank, to the extent permitted by law, an amount equal to the excess of
(a) the lesser of (i) the amount of interest which would have accrued on such
Advances if the maximum non-usurious rate allowed by applicable law had at all
times been in effect or (ii) the amount of interest which would have accrued on
such Advances if the interest rates applicable to such Advances pursuant to
Article II had at all times been in effect over (b) the amount of interest
otherwise accrued on such Advances in accordance with this Agreement.
(c) Notwithstanding any provision to the contrary contained in this
Agreement, in no event shall the aggregate "interest" (as defined in Section
347 of the Criminal Code (Canada), as the same may be amended, replaced or
re-enacted from time to time) payable under this Agreement by the Canadian
Borrower exceed the maximum amount of interest on the "credit advanced" (as
defined in that section) under this Agreement to the Canadian Borrower lawfully
permitted under that section and, if any payment, collection or demand pursuant
to this Agreement in respect of "interest" (as defined in that section) payable
by the Canadian Borrower is determined to be contrary to the provisions of that
section, such payment, collection or demand shall be deemed to have been made
by mutual mistake of the Canadian Borrower, the Canadian Administrative Agent
and the Canadian Banks and the amount of such payment or collection in excess
of the amount lawfully permitted shall be refunded to the Canadian
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Borrower. For purposes of this Agreement, the effective annual rate of
interest on all such "credit advanced" to the Canadian Borrower shall be
determined in accordance with generally accepted actuarial practices and
principles over the term the Revolving Credit Facility is outstanding on the
basis of annual compounding of the lawfully permitted rate of interest and, in
the event of any dispute, a certificate of Fellow of the Canadian Institute of
Actuaries appointed by the Canadian Administrative Agent will be conclusive for
the purposes of such determination.
Section 8.07. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrowers and the Administrative Agents
and when the U.S. Administrative Agent shall have, as to each Bank, either
received a copy of a signature page hereof executed by such Bank or been
notified by such Bank that such Bank has executed it and thereafter shall be
binding upon and inure to the benefit of the Borrowers, the Administrative
Agents and each Bank and their respective successors and assigns, except that
neither Borrower shall have the right to assign its rights hereunder or under
any other Loan Document or any interest herein or therein without the prior
written consent of all of the Banks.
Section 8.08. Assignments and Participations. (a) Each Bank may
assign to one or more banks or other entities all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Notes held by it);
provided, however, that, except as provided in Section 8.08(g), (i) except with
respect to any assignment to an Affiliate, each Bank may enter into any such
assignment only if each of such Bank's Affiliates which is a Bank hereunder
simultaneously assigns to an Affiliate of the proposed assignee a percentage of
its Maximum Commitment equal to the percentage of the Maximum Commitment of
such Bank being assigned (for example, if a U.S. Bank assigns 40% and any
Affiliate of it is a Canadian Bank, each such Canadian Bank shall also assign
40%), (ii) and each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of this
Agreement, (iii) except in the case of an assignment of all of a Bank's rights
and obligations under this Agreement or an assignment to another Bank, the
amount of the Commitment of the assigning Bank being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) plus the amount of any Commitment of an
Affiliate of an assigning Bank being assigned pursuant to clause (i) of this
Section 8.08(a) shall in no event be less than the lesser of 3 1/2% of the
aggregate amount of the Commitments or U.S. $5,000,000, (iv) each such
assignment shall be to an Eligible Assignee or an Affiliate of a Bank that is
not an Investment Fund, (v) each such assignment to an Eligible Assignee (other
than an Affiliate of a Bank that is
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not an Investment Fund) or to any Affiliate of a Bank that is not an Eligible
Assignee shall be subject to the consent of the U.S. Administrative Agent and
the U.S. Borrower, which consent shall not be unreasonably withheld, and (vi)
the assigning Bank and the assignee shall execute and deliver to the U.S.
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with the Notes subject to such assignment
and a processing and recordation fee of $3,000; provided further, however, that
no assignment under this Section 8.08 shall result in any increase at the time
of such assignment in any amount payable by either Borrower hereunder
(including the withholding taxes which either Borrower is required to pay under
Section 2.12). Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Bank hereunder and (y) the
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Bank assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document
or any other instrument or document furnished pursuant hereto or in connection
herewith or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument or document
furnished pursuant hereto or in connection herewith; (ii) such assigning Bank
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of either Borrower or any other Person or the
performance or observance by either Borrower or any other Person of any of its
respective obligations under any Loan Document or any other instrument or
document furnished pursuant hereto or in connection herewith; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the Financial Statements and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon either Administrative Agent, such assigning Bank or any
other Bank and based on such documents and information as it
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shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement, any of the other Loan
Documents or any other instrument or document; (v) such assignee confirms that
it is an Eligible Assignee or an Affiliate of a Bank that is not an Investment
Fund; (vi) such assignee appoints and authorizes each Administrative Agent to
take such action as an Administrative Agent on its behalf and to exercise such
powers and discretion under the Loan Documents as are delegated to such
Administrative Agent by the terms hereof or thereof, together with such powers
and discretion as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Bank.
(c) The U.S. Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Banks and the Commitment of, and the principal amount of the
Advances owing to, each Bank from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, each Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee or
an Affiliate of a Bank that is not an Investment Fund and consented to by the
U.S. Borrower and U.S. Administrative Agent where so required by this
Agreement, together with the Notes subject to such assignment, the U.S.
Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit H, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers. Within five
Business Days after its receipt of such notice, the Borrowers, at their
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note a new Note payable to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and, if the assigning Bank has retained a Commitment hereunder,
a new Note payable to the order of the assigning Bank in an amount equal to the
Commitment retained by it hereunder (such new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibits A or B as the case may
be).
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(e) Each Bank may sell participations to one or more banks or other
entities (other than either Borrower or any of their respective Affiliates) in
or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances and other Accommodations owing to it and the Notes held by it);
provided that (i) such Bank's obligations under this Agreement (including,
without limitation, its Commitment to the Borrower hereunder) shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain
the holder of any such Notes for all purposes of this Agreement, (iv) the
Borrowers, the Administrative Agents and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement, (v) the terms of any such participation shall
not restrict such Bank's ability to make any amendment or waiver of this
Agreement or any Note or such Bank's ability to consent to any departure by the
Borrowers therefrom without the approval of the participant, except that the
approval of the participant may be required to the extent that such amendment,
waiver or consent would release or impair the Guaranty, reduce the principal
of, or interest on, the Notes, the BA Obligations or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, or
postpone any date fixed for any payment of principal of, or interest on, the
Notes, the BA Obligations or any fees payable hereunder, in each case to the
extent subject to such participation, and (vi) no Participant shall have any
rights under this Agreement or any of the other Loan Documents, with each
participant's rights against the granting Bank in respect of any participation
to be those set forth in the participation agreement, and all amounts payable
by the Borrower hereunder shall be determined as if such Bank had not granted
such participation.
(f) Any Bank may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.08, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to either Borrower or any Subsidiary of either Borrower
furnished to such Bank by or on behalf of either Borrower or any such
Subsidiary; provided, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree for the benefit of
the Borrowers and such Bank to comply with Section 8.13.
(g) Notwithstanding any other provision set forth in this Agreement,
any Bank may at any time create a security interest in all or any portion of
its rights under this Agreement (including the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal Reserve System, but
no such assignment shall release such Bank from its
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obligations hereunder.
Section 8.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be as effective as delivery of a manually
executed counterpart of this Agreement.
Section 8.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York. Without limiting the intent of the parties set forth above, (i) Chapter
15, Subtitle 3, Title 79, of the Revised Civil Statutes of Texas, 1925, as
amended (relating to revolving loans and revolving triparty accounts), shall
not apply to this Agreement, the Notes or the transactions contemplated hereby,
and (ii) to the extent that any Bank may be subject to Texas law limiting the
amount of interest payable for its account, such Bank shall utilize the
indicated (weekly) rate ceiling from time to time in effect as provided in
Article 5069-1.04 of the Revised Civil Statutes of Texas, as amended.
Section 8.11. JURISDICTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT SITTING
IN NEW YORK COUNTY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE NOTES, THE
GUARANTY OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT ARISING OUT OF ANY OF THE FOREGOING, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING AND ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT. EACH BORROWER HEREBY AGREES THAT SERVICE OF COPIES OF THE
SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH
PROCESS TO SUCH BORROWER AT ITS ADDRESS SPECIFIED IN SECTION 8.02. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING HEREIN SHALL AFFECT
THE RIGHTS OF ANY BANK OR EITHER ADMINISTRATIVE AGENT TO SERVE LEGAL
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PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT THAT ANY PARTY
HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, ANY OF THE NOTES, THE GUARANTY OR ANY OTHER INSTRUMENT OR DOCUMENT
FURNISHED PURSUANT HERETO OR IN CONNECTION HEREWITH IN THE COURTS OF ANY OTHER
JURISDICTION.
Section 8.12. WAIVER OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE
AGENTS, AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY OF THE NOTES, THE GUARANTY OR ANY OTHER INSTRUMENT OR
DOCUMENT FURNISHED PURSUANT HERETO OR IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.13. Confidentiality. Each Administrative Agent and each Bank
agrees that it will use reasonable efforts not to disclose any Confidential
Information without the prior consent of the U.S. Borrower (other than to
Representatives of either Administrative Agent or any Bank who are informed by
such Administrative Agent or Bank of, or are aware of, the confidential nature
thereof and who are bound, for the benefit of the Borrowers and such
Administrative Agent or Bank, by the terms and conditions hereof and who are
bound, for the benefit of the Borrowers and such Administrative Agent or Bank,
to not use any such Confidential Information except for the purposes of the
Loan Documents and the Accommodations), provided that any Bank or
Administrative Agent may disclose any such information (a) as has become
generally available to the public, (b) as may be required or appropriate in any
report, statement or testimony submitted to or required by any municipal,
provincial, territorial, state or Federal regulatory body having or claiming to
have regulatory authority over any Bank or Administrative Agent, or submitted
to or required by the Federal Reserve Board, the Comptroller of the Currency or
the Federal Deposit Insurance Corporation or similar organizations (whether in
the United States or elsewhere) or their successors in each case having or
claiming to have regulatory authority over any Bank or Administrative Agent,
(c) as may be required or appropriate in response to any summons or subpoena in
connection with any litigation, (d) in order to comply with any law, order,
regulation or ruling applicable to any Bank or Administrative Agent, (e) as
contemplated by Section 8.08(f), (f) in connection with the exercise of any
remedy by any Bank or Administrative Agent pertaining to this Agreement, any of
the Notes, any BA Obligation or any other document delivered in connection
herewith, (g) in connection with any litigation between any Borrower and any
Administrative Agent or any Bank pertaining to any Loan Document or any other
document delivered in connection herewith, (h) to any Bank or either
Administrative Agent, or (i) to any Affiliate of any Bank or Administrative
Agent that is informed by
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such Bank or Administrative Agent of, or is aware of, the confidential nature
thereof and that is bound, for the benefit of the Borrowers and such Bank or
Administrative Agent, by the terms and conditions hereof and that is bound, for
the benefit of the Borrowers and such Bank or Administrative Agent, to not use
any such Confidential Information except for the purposes of the Loan Documents
and the Accommodations, provided that in the event of any disclosure of
Confidential Information pursuant to either of clauses (c) and (d) of this
Section 8.13, such Administrative Agent or Bank making such disclosure shall
make a good faith attempt, to the extent practicable, to notify the U.S.
Borrower of any such disclosure of such Confidential Information at least three
U.S. Business Days prior to such disclosure, and in any event shall notify the
U.S. Borrower of such disclosure as soon as practicable, but no notice shall be
required pursuant to this proviso if giving such notice would conflict with any
law, order, regulation or ruling.
Section 8.14. Judgment Currency. (a) If, for the purposes of obtaining
judgment in any court, it is necessary to convert any sum due or owing
hereunder or under the Guaranty or any other Loan Document to either
Administrative Agent or any one or more of the Banks in any currency (the
"Original Currency") into another currency (the "Other Currency"), the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures such Administrative Agent or Bank, as the case may be, could
purchase the Original Currency with the Other Currency on the Business Day
preceding that on which final judgment is granted, together with any premiums
and costs of exchange payable in connection with such purchase.
(b) The obligations of the Borrowers in respect of any sum due in the
Original Currency from it to either Administrative Agent or any Bank under any
of the Loan Documents shall, notwithstanding any judgment in any Other
Currency, be discharged only to the extent that on the Business Day following
receipt by such Administrative Agent or Bank, as the case may be, of any sum
adjudged to be so due or owing in such Other Currency, such Administrative
Agent or Bank, as the case may be, may in accordance with normal banking
procedures purchase the Original Currency with such Other Currency. IF THE
AMOUNT OF THE ORIGINAL CURRENCY SO PURCHASED IS LESS THAN THE SUM ORIGINALLY
DUE OR OWING TO SUCH ADMINISTRATIVE AGENT OR BANK, AS THE CASE MAY BE, IN THE
ORIGINAL CURRENCY, EACH BORROWER AGREES, AS A SEPARATE OBLIGATION AND
NOTWITHSTANDING ANY SUCH JUDGMENT, TO INDEMNIFY SUCH ADMINISTRATIVE AGENT OR
SUCH BANK, AS THE CASE MAY BE, AGAINST SUCH LOSS, AND IF THE AMOUNT OF THE
ORIGINAL CURRENCY SO PURCHASED EXCEEDS THE SUM ORIGINALLY DUE OR OWING TO SUCH
ADMINISTRATIVE AGENT OR SUCH BANK, AS THE CASE MAY BE, IN THE ORIGINAL
CURRENCY, SUCH ADMINISTRATIVE AGENT OR SUCH BANK, AS THE CASE MAY BE, SHALL
REMIT SUCH EXCESS
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TO SUCH BORROWER.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWERS:
BATTLE MOUNTAIN GOLD COMPANY
By:
-----------------------------------
Xxx Xxxxxxxx
Senior Vice President
By:
-----------------------------------
Xxxxxx X. Xxxxxx
Treasurer
BATTLE MOUNTAIN CANADA LTD.
By:
-----------------------------------
Xxx Xxxxxxxx
Senior Vice President
By:
-----------------------------------
Xxxxxx X. Xxxxxx
Treasurer
U.S. ADMINISTRATIVE AGENT:
CITIBANK, N.A.,
as U.S. Administrative Agent
By:
-----------------------------------
Authorized Officer
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CANADIAN ADMINISTRATIVE AGENT:
CITIBANK CANADA,
as Canadian Administrative Agent
By:
-----------------------------------
Authorized Officer
BANKS:
CITIBANK, N.A., as a U.S. Bank
By:
-----------------------------------
Authorized Officer
CITIBANK CANADA, as a Canadian Bank
By:
-----------------------------------
Authorized Officer
THE BANK OF NOVA SCOTIA, as a U.S. Bank
By:
-----------------------------------
Authorized Officer
THE BANK OF NOVA SCOTIA,
as a Canadian Bank
By:
-----------------------------------
Authorized Officer
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000
XXXXXXXX XXXXXXXX XXXX XX XXXXXXXX,
as a U.S. Bank
By:
-----------------------------------
Authorized Officer
By:
-----------------------------------
Authorized Officer
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Canadian Bank
By:
-----------------------------------
Authorized Officer
By:
-----------------------------------
Authorized Officer
ROYAL BANK OF CANADA, as a U.S. Bank
By:
-----------------------------------
Authorized Officer
ROYAL BANK OF CANADA, as a Canadian Bank
By:
-----------------------------------
Authorized Officer
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THE FIRST NATIONAL BANK OF CHICAGO, as
a U.S. Bank
By:
-----------------------------------
Authorized Officer
FIRST CHICAGO NBD BANK, CANADA
as a Canadian Bank
By:
-----------------------------------
Authorized Officer
ABN AMRO BANK N.V., CAYMAN ISLANDS
BRANCH, as a U.S. Bank
By:
-----------------------------------
Authorized Officer
By:
-----------------------------------
Authorized Officer
ABN AMRO BANK CANADA, as a Canadian Bank
By:
-----------------------------------
Authorized Officer
By:
-----------------------------------
Authorized Officer
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XXXXXXXX XXXXXXXX XXXX XX XXX XXXX,
as a U.S. Bank
By:
-----------------------------------
Authorized Officer
REPUBLIC NATIONAL BANK OF NEW YORK
(CANADA), as a Canadian Bank
By:
-----------------------------------
Authorized Officer
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