EXHIBIT 10.1
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 20, 1996
AMONG
HOMESTAKE MINING COMPANY,
a Delaware corporation, as Guarantor,
HOMESTAKE MINING COMPANY OF CALIFORNIA,
a California corporation, as U.S. Borrower,
HOMESTAKE CANADA INC.,
an Ontario corporation, as Canadian Borrower,
HOMESTAKE GOLD OF AUSTRALIA LIMITED,
a South Australian corporation, as Australian Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Documentation Agent,
THE CHASE MANHATTAN BANK OF CANADA,
as Canadian Administrative Agent,
CHASE SECURITIES AUSTRALIA LIMITED,
as Australian Administrative Agent,
CHASE SECURITIES INC.,
as Arranger,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
HOMESTAKE MINING COMPANY
HOMESTAKE MINING COMPANY OF CALIFORNIA
HOMESTAKE CANADA INC.
HOMESTAKE GOLD OF AUSTRALIA LIMITED
CREDIT AGREEMENT
TABLE OF CONTENTS
Page
Section 1. DEFINITIONS.............................................................................................. 2
1.1 Certain Defined Terms.......................................................................... 2
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1.2 Accounting Terms; Utilization of GAAP for Purposes
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of Calculations Under Agreement................................................................ 37
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1.3 Other Definitional Provisions.................................................................. 37
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Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS............................................................... 37
2.1 Commitments; Loans............................................................................. 37
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2.2 Interest on the Loans.......................................................................... 47
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2.3 Fees........................................................................................... 53
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2.4 Prepayments and Reductions in Commitments; General
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Provisions Regarding Payments.................................................................. 54
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2.5 Use of Proceeds................................................................................ 59
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2.6 Special Provisions Governing Eurodollar Rate Loans,
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Bank Xxxx Swap Rate Loans and Gold Loans....................................................... 60
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2.7 Letters of Credit.............................................................................. 64
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2.8 Bankers' Acceptances........................................................................... 72
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Section 3. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND LOANS,
LETTERS OF CREDIT AND BANKERS' ACCEPTANCES............................................................... 77
3.1 Conditions to Effectiveness.................................................................... 77
3.2 Conditions to All Loans........................................................................ 82
3.3 Conditions to All Letters of Credit............................................................ 83
3.4 Conditions to All Bankers' Acceptances......................................................... 83
Section 4. REPRESENTATIONS AND WARRANTIES........................................................................... 84
4.1 Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries...................................................................... 84
4.2 Authorization of Borrowing and Guaranty, etc................................................... 85
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4.3 Valid Issuance of Stock and Subordinated
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Debentures..................................................................................... 86
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4.4 Financial Condition............................................................................ 86
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4.5 No Material Adverse Effect; No Restricted Junior
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Payments....................................................................................... 87
(i)
Page
4.6 Title to Properties; Liens..................................................................... 87
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4.7 Litigation; Adverse Facts...................................................................... 88
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4.8 Payment of Taxes............................................................................... 88
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4.9 Performance of Agreements; Materially Adverse
Agreements..................................................................................... 88
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4.10 Governmental Regulation........................................................................ 89
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4.11 Securities Activities.......................................................................... 89
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4.12 Employee Benefit Plans......................................................................... 89
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4.13 Certain Fees................................................................................... 90
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4.14 Environmental Protection....................................................................... 90
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4.15 Employee Matters............................................................................... 90
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4.16 Solvency....................................................................................... 90
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4.17 Compliance with Laws........................................................................... 90
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4.18 Disclosure..................................................................................... 90
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Section 5. AFFIRMATIVE COVENANTS.................................................................................... 91
5.1 Financial Statements and Other Reports......................................................... 91
5.2 Corporate Existence, etc....................................................................... 95
5.3 Payment of Taxes and Claims; Tax Consolidation................................................. 95
5.4 Maintenance of Properties; Insurance........................................................... 95
5.5 Inspection; Lender Meeting; Reports of
Subsidiaries................................................................................... 96
5.6 Compliance with Laws, etc...................................................................... 96
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5.7 Environmental Disclosure and Inspection........................................................ 96
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5.8 Company's Remedial Action Regarding Hazardous
Materials...................................................................................... 97
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5.9 Further Assurances............................................................................. 98
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Section 6. NEGATIVE COVENANTS....................................................................................... 98
6.1 Indebtedness................................................................................... 98
6.2 Liens and Related Matters......................................................................100
6.3 Investments; Joint Ventures....................................................................101
6.4 Contingent Obligations.........................................................................102
6.5 Restricted Junior Payments.....................................................................103
6.6 Financial Covenants............................................................................103
6.7 Restriction on Fundamental Changes; Asset Sales................................................104
6.8 Transactions with Shareholders and Affiliates..................................................105
6.9 Disposal of Material Subsidiary Stock..........................................................105
6.10 Conduct of Business............................................................................105
6.11 Prepayments and Amendments to Subordinated
Indebtedness...................................................................................106
(ii)
Page
Section 7. EVENTS OF DEFAULT.........................................................................................106
7.1 Failure to Make Payments When Due..............................................................106
7.2 Default in Other Agreements....................................................................106
7.3 Breach of Certain Covenants....................................................................107
7.4 Breach of Warranty.............................................................................107
7.5 Other Defaults Under Loan Documents............................................................107
7.6 Involuntary Bankruptcy; Appointment of Receiver,
etc............................................................................................107
7.7 Voluntary Bankruptcy; Appointment of Receiver,
etc............................................................................................108
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7.8 Judgments and Attachments......................................................................109
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7.9 Dissolution....................................................................................109
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7.10 Employee Benefit Plans.........................................................................109
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7.11 Change in Control of Borrowers.................................................................109
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Section 8. GUARANTIES OF COMPANY AND U.S. BORROWER OF
OBLIGATIONS..............................................................................................111
8.1 Guaranty by Company............................................................................111
8.2 Guaranty by U.S. Borrower......................................................................115
Section 9. AGENTS ..................................................................................................120
9.1 Appointment....................................................................................120
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9.2 Powers; General Immunity.......................................................................120
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9.3 Representations and Warranties; No Responsibility
For Appraisal of Creditworthiness..............................................................122
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9.4 Right to Indemnity.............................................................................122
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9.5 Registered Persons Treated as Owners...........................................................123
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9.6 Successor Agents...............................................................................123
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Section 10. MISCELLANEOUS...........................................................................................124
10.1 Assignments of and Participations in Commitments,
Loans and Letters of Credit; Fronting Banks....................................................124
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10.2 Expenses.......................................................................................128
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10.3 Indemnity......................................................................................129
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10.4 Set Off........................................................................................130
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10.5 Ratable Sharing................................................................................131
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10.6 Amendments and Waivers.........................................................................131
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10.7 Increased Costs; Taxes; Capital Adequacy.......................................................132
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10.8 Lenders' Obligation to Mitigate; Replacement of
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Lender.........................................................................................137
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10.9 Independence of Covenants......................................................................137
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10.10 Notices........................................................................................138
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(iii)
Page
10.11 Survival of Representations, Warranties and
Agreements.....................................................................................138
10.12 Failure or Indulgence Not Waiver; Remedies
Cumulative.....................................................................................138
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10.13 Marshalling; Payments Set Aside................................................................139
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10.14 Severability...................................................................................139
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10.15 Obligations Several; Independent Nature of Lenders'
Rights.........................................................................................139
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10.16 Headings.......................................................................................140
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10.17 Applicable Law.................................................................................140
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10.18 Successors and Assigns.........................................................................140
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10.19 Consent to Jurisdiction and Service of Process.................................................140
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10.20 Waiver of Jury Trial...........................................................................141
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10.21 Confidentiality................................................................................142
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10.22 Entire Agreement...............................................................................142
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10.23 Counterparts; Effectiveness....................................................................142
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10.24 Judgment Currency..............................................................................143
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10.25 Change in Control..............................................................................143
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(iv)
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III-A FORM OF DRAFT
III-B FORM OF DRAWING NOTICE
IV-A FORM OF CANADIAN BORROWER NOTE
IV-B FORM OF AUSTRALIAN BORROWER NOTE
IV-C FORM OF U.S. BORROWER NOTE
V FORM OF GRID GOLD ACKNOWLEDGEMENT
VI FORM OF COMPLIANCE CERTIFICATE
VII-A FORM OF OPINION OF THELEN, MARRIN, XXXXXXX & XXXXXXX
VII-B FORM OF OPINION OF XXXXX XXXX, ESQ.
VIII-A FORM OF OPINION OF OSLER, XXXXXX & HARCOURT
VIII-B FORM OF OPINION OF XXXXXX & XXXXXX
IX FORM OF OPINION OF O'MELVENY & XXXXX
X-A FORM OF ASSIGNMENT AND ACCEPTANCE (CANADIAN LENDER)
X-B FORM OF ASSIGNMENT AND ACCEPTANCE (U.S. LENDER)
X-C FORM OF ASSIGNMENT AND ACCEPTANCE (AUSTRALIAN LENDER)
XI FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
XII FORM OF SUBORDINATION PROVISIONS
XIII FORM OF NOTICE OF ALLOCATION
(v)
SCHEDULES
1.1 CASH FLOW SCHEDULE
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
4.1 LIST OF SUBSIDIARIES
4.4 CONTINGENT OBLIGATIONS AND FORWARD COMMITMENTS
4.7 LITIGATION
4.12 CERTAIN EMPLOYEE BENEFIT PLANS
6.1 EXISTING INDEBTEDNESS
6.2 CERTAIN EXISTING LIENS
6.3 EXISTING INVESTMENTS
6.4 EXISTING CONTINGENT OBLIGATIONS
6.8 TRANSACTIONS WITH AFFILIATES
(vi)
HOMESTAKE MINING COMPANY
HOMESTAKE MINING COMPANY OF CALIFORNIA
HOMESTAKE CANADA INC.
HOMESTAKE GOLD OF AUSTRALIA LIMITED
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of September 20, 1996 and
entered into by and among HOMESTAKE MINING COMPANY, a Delaware corporation
("Company"), HOMESTAKE MINING COMPANY OF CALIFORNIA, a California corporation
("U.S. Borrower"), HOMESTAKE CANADA INC., an Ontario corporation ("Canadian
Borrower"), HOMESTAKE GOLD OF AUSTRALIA LIMITED, ACN 008 143 137, a South
Australia corporation ("Australian Borrower"), THE FINANCIAL INSTITUTIONS LISTED
ON THE SIGNATURE PAGES HEREOF (each individually referred to herein as a
"Lender" and collectively as "Lenders"), XXX XXXXX XXXXXXXXX XXXX XX XXXXXX, as
Canadian Administrative Agent for Lenders ("Canadian Administrative Agent"),
CHASE SECURITIES AUSTRALIA LIMITED, ACN 002 888 011, as Australian
Administrative Agent for Lenders ("Australian Administrative Agent"), CHASE
SECURITIES INC., as Arranger ("Arranger"), THE CHASE MANHATTAN BANK, as
Administrative Agent for Lenders ("Administrative Agent"), and CANADIAN IMPERIAL
BANK OF COMMERCE, as Documentation Agent for Lenders ("Documentation Agent").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in subsection 1.1 of this Agreement.
R E C I T A L S
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement dated as of September 30, 1994 (the "Existing Credit Agreement") among
Company, U.S. Borrower, Canadian Borrower, the lenders listed on the signature
pages thereof ("Existing Lenders"), managing agents and Canadian Imperial Bank
of Commerce, as administrative agent, Existing Lenders have made certain credit
facilities available to U.S. Borrower and Canadian Borrower in accordance with
the terms thereof; and
1
WHEREAS, Company, U.S. Borrower and Canadian Borrower
desire to refinance the Existing Credit Agreement and, among
other things, add Australian Borrower and increase the aggregate
Commitments of Lenders to $275,000,000;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Borrowers,
Lenders, Agents and Arranger agree as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the
following meanings:
"Adjusted Eurodollar Rate" means, for any Interest Rate
Determination Date with respect to a Eurodollar Rate Loan, the rate obtained by
dividing (i) the Eurodollar Rate on such Interest Rate Determination Date by
(ii) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable generally to any member bank
of the Federal Reserve System in respect of "Eurocurrency liabilities" as
defined in Regulation D (or any successor category of liabilities under
Regulation D). The Administrative Agent shall determine the Adjusted Eurodollar
Rate and such determination shall be conclusive absent manifest error.
"Administrative Agent" means Chase and any successor
thereto appointed pursuant to subsection 9.6.
"Affected Lender" has the meaning assigned to that term
in subsection 2.6C.
"Affected Loans" has the meaning assigned to that term
in subsection 2.6C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the
2
terms "controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Agent" or "Agents" means Administrative Agent and/or Canadian
Administrative Agent and/or Australian Administrative Agent and/or Documentation
Agent, or any of them.
"Agreement" means this Credit Agreement dated as of September
20, 1996, as it may be amended, restated, supplemented or otherwise modified
from time to time.
"Alternate Base Rate" means, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of one percent) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" means the rate of
interest per annum publicly announced from time to time by Administrative Agent
as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is publicly
announced as being effective. "Base CD Rate" means the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. "Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected by it.
"Federal Funds Effective Rate" means, for any
3
day, 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 on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
Administrative Agent from three Federal funds brokers of recognized standing
selected by it. If for any reason Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Base CD Rate or the Federal Funds Effective Rate or both
for any reason, including the inability of Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the Alternate Base
Rate shall be determined without regard to clause (b) or (c), or both, of the
first sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively. If any U.S. Base Rate Loans are outstanding,
Administrative Agent will give to U.S. Borrower notice of any such changes
promptly after the Alternate Base Rate changes; provided, however, that the
failure to give such notice shall not limit or otherwise affect the obligations
of Company or any Borrower under this Agreement or any other Loan Document.
As to any loan, the Alternate Base Rate is a reference rate
that varies from time to time and does not necessarily represent the lowest or
best rate actually charged to any customer by Administrative Agent or any U.S.
Lender for loans denominated in Dollars. Administrative Agent and U.S. Lenders
may make commercial loans or other loans denominated in Dollars at rates of
interest at, above or below the Alternate Base Rate. The Alternate Base Rate
shall automatically change upon any date that Administrative Agent announces any
change in its applicable prime rate or determines that the interest rates set
forth in clauses (b) and (c) in the first sentence of this definition have
changed, to the extent necessary to reflect any such change.
4
"Applicable Administrative Agent" means (i) Administrative
Agent in the case of U.S. Loans or U.S. Letters of Credit, (ii) Canadian
Administrative Agent in the case of Canadian Loans, Canadian Letters of Credit
or Bankers' Acceptances and (iii) Australian Administrative Agent in the case of
Australian Loans or Australian Letters of Credit.
"Applicable Margin" means, with respect to any Loan or Bankers'
Acceptance, the applicable percentage set forth below based upon the actual or
stated senior implied ratings established by S&P and Xxxxx'x, respectively,
applicable on such date to the senior, unsecured, non-credit enhanced, long-term
Indebtedness for borrowed money of Company (or, if no actual or stated senior
implied ratings are in effect, the ratings one category higher than the actual
ratings for subordinated, unsecured, non-credit enhanced long-term Indebtedness
for borrowed money):
Category S&P/Xxxxx'x Rating Percentage
1 A-/A3 0.30%
or above
2 BBB+/Baa1 0.35%
3 BBB/Baa2 0.40%
4 BBB-/Baa3 0.45%
5 BB+/Ba1 0.625%
or below
For purposes of the foregoing, (i) if neither Xxxxx'x nor S&P
shall have in effect a rating for the senior or subordinated, unsecured,
non-credit enhanced, long-term Indebtedness for borrowed money of Company (other
than by reason of the circumstances referred to in the last sentence of this
definition), then the Applicable Margin shall be based on Category 5; (ii) if
only one of Xxxxx'x and S&P shall have in effect a rating for the senior or
subordinated, unsecured, non-credit enhanced, long-term Indebtedness for
borrowed money of Company, then the Applicable Margin shall be determined on the
basis of such rating; (iii) if the ratings established or deemed
5
to have been established by Xxxxx'x or S&P for the senior or subordinated,
unsecured, long-term Indebtedness for borrowed money of Company shall fall
within different Categories, the Applicable Margin shall be based on the
Category corresponding to the higher rating; and (iv) if any rating established
or deemed to have been established by Xxxxx'x or S&P shall be changed (other
than as a result of a change in the rating system of Xxxxx'x or S&P), such
change shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Margin shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of Xxxxx'x or S&P shall change, or if any such rating agency
shall cease to be in the business of rating corporate debt obligations, Company
and Lenders shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency, and pending the
effectiveness of any such amendment, the ratings of such rating agency most
recently in effect prior to such change or cessation shall be employed in
determining the Applicable Margin.
"Applicable Monthly Determination Date" means, as of any date
of determination, the first Business Day of the month in which such date of
determination occurs.
"Arranger" has the meaning assigned to that term in the
recitals to this Agreement.
"Assessment Rate" means for any date the annual rate (rounded
upwards, if necessary, to the next .01%) most recently estimated by
Administrative Agent as the then-current net annual assessment rate that will be
employed in determining amounts payable by Administrative Agent to the Federal
Deposit Insurance Corporation (or any successor) for such date for insurance by
the Federal Deposit Insurance Corporation (or such successor) of time deposits
made in Dollars at Administrative Agent's domestic offices.
"Asset Sale" means the sale by Company or any of its
Subsidiaries to any Person other than Company or any of its Subsidiaries of (i)
any of the stock of any of Company's
6
Subsidiaries, (ii) substantially all of the assets of any division or line of
business of Company or any of its Subsidiaries, or (iii) any other assets
(whether tangible or intangible and including intercompany Indebtedness) of
Company or any of its Subsidiaries outside of the ordinary course of business;
provided that any sale of surplus assets (including land and mineral interests
but excluding intercompany Indebtedness) not being used in the day-to-day
conduct of Company's principal businesses or worn or obsolete equipment in the
ordinary course of business or assets sold in the ordinary course of business in
connection with the routine replacement of fixed or capital assets shall not be
deemed to be an "Asset Sale".
"Assignment and Acceptance" means an Assignment and Acceptance
entered into by a Lender and an Eligible Assignee, and accepted by Agents, in
substantially the form of Exhibit X-A, Exhibit X-B, or Exhibit X-C annexed
hereto, as applicable.
"Australian Administrative Agent" means Chase Securities
Australia Limited, ACN 002 888 011, a company incorporated with limited
liability in the Australian Capital Territory, Australia, and any successor
thereto appointed pursuant to subsection 9.6.
"Australian Allocation" means the portion of the Commitments
allocated to Australian Borrower in Schedule 2.1 or in the most recent Notice of
Allocation delivered by Borrowers and Company pursuant to subsection 2.1A.
"Australian Borrower" has the meaning assigned to that
term in the introduction of this Agreement.
"Australian Commitment" means the commitment of each Australian
Lender (i) to make or maintain Australian Loans pursuant to subsection 2.1A, and
(ii) to issue (in the case of the applicable Issuing Lender) or acquire risk
participations (in the case of all other Australian Lenders) in Australian
Letters of Credit pursuant to subsection 2.7 in an aggregate amount, valued in
Dollar Equivalents, at no time exceeding such Australian Lender's Pro Rata Share
of the Australian Allocation.
"Australian Commitment Usage" means, as of any date of
determination, the aggregate outstanding principal amount of
7
(i) the Australian Loans denominated in Dollars, (ii) the Australian Loans
denominated in Australian Dollars (but valued in Dollar Equivalents as of such
date of determination), and (iii) the Australian Loans that are Gold Loans
(valued in Dollar Equivalents based on the Price of Gold as of such date of
determination) plus the Australian Letter of Credit Usage.
"Australian Dollar Loans" means Loans denominated in and
advanced to Australian Borrower in Australian Dollars.
"Australian Dollars" or "A$" means the lawful money of
Australia.
"Australian Exposure" means, with respect to any Australian
Lender as of any date of determination, the Australian Commitments of such
Australian Lender or, if the Commitments have been terminated, the sum of (a)
the aggregate outstanding principal amount of all Australian Loans (valued in
Dollar Equivalents as of such date of determination) of that Australian Lender
plus (b) in the event such Australian Lender (or a Lender in its Lending Unit)
is an Issuing Lender, the aggregate Letter of Credit Usage in respect of all
Australian Letters of Credit issued by such Australian Lender (or such Lender in
that Lending Unit) (in each case net of any participations purchased by other
Australian Lenders in such Australian Letters of Credit or any unreimbursed
drawings thereunder (valued in Dollar Equivalents as of such date of
determination)) plus (c) the aggregate amount of all participations purchased by
that Australian Lender in any outstanding Australian Letters of Credit or any
unreimbursed drawings under any Australian Letter of Credit (valued in Dollar
Equivalents as of such date of determination).
"Australian Lenders" means each of the Lenders designated as
the Australian Lender for each of the Lending Units on the signature pages
hereof or in any applicable Assignment and Acceptance.
"Australian Lending Office" means, in relation to any
Australian Lender, its Sydney, Melbourne or Canberra Australian lending office
as specified under its signature on the signature pages hereof or such other
office as is specified by such Lender in a written notice to Administrative
Agent, Australian
Administrative Agent, and Australian Borrower.
8
"Australian Letter of Credit" or "Australian Letters of Credit"
means Standby Letters of Credit issued, or deemed issued, by the applicable
Issuing Lender for the account of Australian Borrower pursuant to subsection
2.7.
"Australian Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount (in Dollar
Equivalents) which is available for drawing under all Australian Letters of
Credit then outstanding plus (ii) the aggregate amount (in Dollar Equivalents)
of all drawings under all Australian Letters of Credit honored by the applicable
Issuing Lender and not theretofore reimbursed by Australian Borrower.
"Australian Loans" means the Australian Dollar Loans, Dollar
Loans and/or Gold Loans made by Australian Lenders to Australian Borrower
pursuant to subsection 2.1A(ii).
"BA Discount Rate" means, in respect of a Bankers' Acceptance,
the rate quoted by Canadian Administrative Agent at or about 10:00 a.m.
(Toronto, Canada time) on the date of acceptance of such Bankers' Acceptance
(based on a year of 365 days), as the discount rate at which it would purchase
on such date its own bankers' acceptances having terms similar to the terms of
such Bankers' Acceptance.
"BA Facility" means the bankers' acceptance facility
established under subsection 2.8.
"BA Fee" means, in respect of a Bankers' Acceptance, a stamping
fee calculated on the Face Amount and maturity of such Bankers' Acceptance at a
rate per annum equal to the Applicable Margin, payable on the date of creation
of such Bankers' Acceptance, calculated on the basis of a year of 365 days.
"BA Usage" means, as at any date of determination, the
aggregate Face Amount (in Dollar Equivalents) of all Bankers' Acceptances
created by Canadian Lenders pursuant to subsection 2.8 which have not been
repaid by Canadian Borrower, whether or not due and whether or not held by any
Lender. For purposes of this definition, any Bankers' Acceptance which has been
cash collateralized in full in a manner satisfactory to Canadian Administrative
Agent shall not be deemed to be outstanding.
9
"Bank Xxxx Swap Rate" in relation to each Interest Period with
respect to any Bank Xxxx Swap Rate Loan, means the average Bank Xxxx Swap Rate
(expressed as a percentage per annum) for a period approximately equal to that
Interest Period, as such average appears on page "BBSW" on the Reuters Monitor
System (or any page that can reasonably be considered a replacement page) at
approximately 10:10 A.M. (Sydney time) on the first day of that Interest Period.
If the rate set forth above is not available on page BBSW on the Reuters Monitor
System (or any page that can reasonably be considered a replacement page), the
Bank Xxxx Swap Rate means the rate reasonably determined by the Australian
Administrative Agent to be the arithmetic mean of the rates (rounded upwards, if
necessary, to the next 1/16 of one percent) at which Westpac Banking
Corporation, Australia and New Zealand Banking Group Limited and Commonwealth
Bank of Australia are purchasing bills of exchange accepted by an Australian
bank for a period approximately equal to that Interest Period on such day. If
the Bank Xxxx Swap Rate cannot be determined in the manner set forth above, the
Bank Xxxx Swap Rate will be the rate most nearly approximating the rate that
would otherwise have been determined by the Australian Administrative Agent in
the manner set forth above having regard to comparable indices then available in
the xxxx or other financial markets. The Australian Administrative Agent shall
determine the Bank Xxxx Swap Rate and such determination shall be conclusive
absent manifest error.
"Bank Xxxx Swap Rate Loan" means Australian Dollar Loans made
by Australian Lenders pursuant to subsection 2.1A(ii) and bearing interest at
rates determined by reference to the Bank Xxxx Swap Rate as provided in
subsection 2.2A.
"Bankers' Acceptance" means a Draft that has been accepted by a
Canadian Lender as provided in subsection 2.8.
"Bankers' Acceptance Purchase Price" means, in respect of any
Bankers' Acceptance to be purchased by a Canadian Lender, the result (rounded to
the nearest whole cent, with one-half of one cent being rounded up) obtained by
dividing the Face Amount of such Bankers' Acceptance by the sum of one plus the
product of (x) the applicable BA Discount Rate multiplied by (y) a fraction, the
numerator of which is the term of maturity of such Bankers' Acceptance and the
denominator of which is 365.
10
"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", the Bankruptcy and Insolvency Act (Canada), Part 5 of the
Corporations Law (Australia) or any similar statute of U.S. Canadian, Australian
or other laws as now and hereafter in effect, or any successor statute.
"Base Rate Loans" means Loans that bear interest at a floating
rate of interest, which shall be either the Canadian Base Rate, in the case of
Canadian Dollar Loans, or the Alternate Base Rate or U.S. Base Rate (Canada), as
applicable, in the case of Dollar Loans.
"Board" means the Board of Governors of the Federal Reserve
System of the United States, together with its successors.
"Borrower" or "Borrowers" means U.S. Borrower and/or
Canadian Borrower and/or Australian Borrower.
"Business Day" means (i) for all purposes other than as covered
by clauses (ii), (iii), (iv) and (v) below, any day excluding Saturday, Sunday
and any day which is a legal holiday under the laws of the State of New York or
is a day on which banking institutions located in such state are authorized or
required by law or other governmental action to close, (ii) with respect to all
notices, determinations, fundings and payments in connection with Canadian
Loans, Canadian Letters of Credit and Bankers' Acceptances, any day that is a
Business Day described in clause (i) above which is not a legal holiday under
the laws of the Provinces of Ontario and British Columbia, Canada or a day on
which banking institutions located in such Provinces are authorized or required
by law or other governmental action to close, (iii) with respect to all notices,
determinations, fundings and payments in connection with Australian Loans and
Australian Letters of Credit, any day that is a Business Day described in clause
(i) above which is not a Saturday, Sunday or public holiday in Sydney, Melbourne
and Perth, Australia, (iv) with respect to all notices, determinations, fundings
and payments in connection with the Eurodollar Rate or any Eurodollar Rate
Loans, any day that is a Business Day described in clause (i) above and that is
also a day for trading by and between banks in Dollar deposits in the applicable
interbank Eurodollar market, and (v) with respect to all notices,
11
determinations, fundings and payments in connection with Gold Loans, any day
that is a Business Day described in clause (i) above and that is also a day upon
which the Price of Gold is fixed by the London Bullion Market Association.
"Canadian Administrative Agent" means Chase Canada and any
successor thereto appointed pursuant to subsection 9.6.
"Canadian Allocation" means the portion of the Commitments
allocated to Canadian Borrower in Schedule 2.1 or in the most recent Notice of
Allocation delivered by Borrowers and Company pursuant to subsection 2.1A.
"Canadian Base Rate" means, with respect to any Canadian Dollar
Loan as of any date of determination, the greater of (A) the fluctuating
interest rate per annum which Canadian Administrative Agent has announced as its
reference rate for determining interest chargeable by it on loans denominated in
Canadian Dollars made in Canada, as in effect on such date of determination, and
(B) the BA Discount Rate for such day for bankers' acceptances having a term of
30 days plus 0.625%. As to any loan, the Canadian Base Rate is a reference rate
that varies from time to time and does not necessarily represent the lowest or
best rate actually charged to any customer by Canadian Administrative Agent or
any Canadian Lender for loans denominated in Canadian Dollars. Canadian
Administrative Agent and Canadian Lenders may make commercial loans or other
loans denominated in Canadian Dollars at rates of interest at, above or below
the Canadian Base Rate. The Canadian Base Rate shall automatically change,
without notice to Company or any Borrower, upon any date that Canadian
Administrative Agent announces any change in said reference rate or determines
that the prevailing BA Discount Rate for 30-day bankers' acceptances has changed
to the extent necessary to reflect any such change. If any Canadian Base Rate
Loans are outstanding, Canadian Administrative Agent will give Canadian Borrower
notice of any such change promptly after the Canadian Base Rate changes;
provided, however, that the failure to give such notice shall not limit or
otherwise affect the obligations of Company or any Borrower under this Agreement
or any other Loan Document.
"Canadian Base Rate Loans" means Canadian Dollar Loans
made by Canadian Lenders pursuant to subsection 2.1A(i) and
12
bearing interest at rates determined by reference to the Canadian Base Rate as
provided in subsection 2.2A.
"Canadian Borrower" has the meaning assigned to that
term in the introduction of this Agreement.
"Canadian Commitment" means the commitment of each Canadian
Lender (i) to make or maintain Canadian Loans pursuant to subsection 2.1A, (ii)
to issue (in the case of the applicable Issuing Lender) or acquire risk
participations (in the case of all other Canadian Lenders) in Canadian Letters
of Credit pursuant to subsection 2.7, and (iii) to create and purchase Bankers'
Acceptances pursuant to subsection 2.8 in an aggregate amount, valued in Dollar
Equivalents, at no time exceeding such Canadian Lender's Pro Rata Share of the
Canadian Allocation.
"Canadian Commitment Usage" means, as of any date of
determination, the aggregate outstanding principal amount of (i) the Canadian
Loans denominated in Dollars, (ii) the Canadian Loans denominated in Canadian
Dollars (valued in Dollar Equivalents as of such date of determination), (iii)
the Canadian Loans that are Gold Loans (valued in Dollar Equivalents based on
the Price of Gold as of such date of determination), (iv) the Canadian Letter of
Credit Usage, and (v) the BA Usage.
"Canadian Dollar Loans" means Loans denominated in and
advanced to Canadian Borrower in Canadian Dollars.
"Canadian Dollars" or "Cdn.$" means the lawful money of
Canada.
"Canadian Exposure" means with respect to any Canadian Lender
as of any date of determination, the Canadian Commitments of such Canadian
Lender or, if the Commitments have been terminated, the sum of (a) the aggregate
outstanding principal amount of all Canadian Loans (valued in Dollar Equivalents
as of such date of determination) of that Canadian Lender plus (b) in the event
such Canadian Lender (or a Lender in its Lending Unit) is an Issuing Lender, the
aggregate Letter of Credit Usage in respect of all Canadian Letters of Credit
issued by such Canadian Lender (or such Lender in that Lending Unit) (in each
case net of any participations purchased by other Canadian Lenders in such
Canadian Letters of Credit or any unreimbursed drawings
13
thereunder (valued in Dollar Equivalents as of such date of determination)) plus
(c) the aggregate amount of all participations purchased by that Canadian Lender
in any outstanding Canadian Letters of Credit or any unreimbursed drawings under
any Canadian Letter of Credit (valued in Dollar Equivalents as of such date of
determination) plus (d) the BA Usage of that Canadian Lender.
"Canadian Lending Office" means, in relation to any Canadian
Lender, its Canadian lending office as specified under its signature on the
signature pages hereof or such other office as is specified by such Lender in a
written notice to Administrative Agent, Canadian Administrative Agent and
Canadian
Borrower.
"Canadian Lenders" means each of the Lenders designated as the
Canadian Lender for each of the Lending Units on the signature pages hereof or
in any applicable Assignment and Acceptance.
"Canadian Letter of Credit" or "Canadian Letters of Credit"
means Standby Letters of Credit issued, or deemed issued, by the applicable
Issuing Lender for the account of Canadian Borrower pursuant to subsection 2.7.
"Canadian Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount (in Dollar
Equivalents) which is available for drawing under all Canadian Letters of Credit
then outstanding plus (ii) the aggre-
gate amount (in Dollar Equivalents) of all drawings under all Canadian Letters
of Credit honored by the applicable Issuing Lender and not theretofore
reimbursed by Canadian Borrower.
"Canadian Loans" means the Canadian Dollar Loans, Dollar
Loans and/or Gold Loans made by Canadian Lenders to Canadian
Borrower pursuant to subsection 2.1A(i).
"Capital Lease", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is or should be accounted for as an asset, with a
corresponding liability, on the balance sheet of that Person.
14
"Cash" means money, currency or a credit balance in a
Deposit Account.
"Cash Flow Analysis" means an analysis of projected cash flow,
substantially in the form of Schedule 1.1 annexed hereto.
"Chase" means The Chase Manhattan Bank.
"Chase Canada" means The Chase Manhattan Bank of Canada,
a bank named in Schedule II to the Bank Act (Canada).
"CIBC" means Canadian Imperial Bank of Commerce.
"Commitments" means the commitments of the Lender(s) of each
Lending Unit to make Canadian Loans, to make U.S. Loans, to make Australian
Loans, to participate in Letters of Credit, and, in the case of the Canadian
Lender(s), to create and purchase Bankers' Acceptances, initially in an
aggregate amount equal to $275,000,000.
"Commitment Fee Percentage" means on any date the applicable
percentage set forth below based upon the actual or stated senior implied
ratings established by S&P and Xxxxx'x, respectively, applicable on such date to
the senior, unsecured, non-credit enhanced, long-term Indebtedness for borrowed
money of Company (or, if no actual or stated senior implied ratings are in
effect, the ratings one category higher than the ratings for subordinated,
unsecured, non-credit enhanced long-term Indebtedness for borrowed money):
Category S&P/Xxxxx'x Rating Percentage
1 A-/A3 0.10%
or above
2 BBB+/Baa1 0.125%
3 BBB/Baa2 0.15%
4 BBB-/Baa3 0.1875%
5 BB+/Ba1 0.225%
or below
15
For purposes of the foregoing, (i) if neither Xxxxx'x nor S&P
shall have in effect a rating for the senior or subordinated, unsecured,
non-credit enhanced, long-term Indebtedness for borrowed money of Company (other
than by reason of the circumstances referred to in the last sentence of this
definition), then the Commitment Fee Percentage shall be based on Category 5;
(ii) if only one of Xxxxx'x and S&P shall have in effect a rating for senior or
subordinated, unsecured, non-credit enhanced, long-term Indebtedness for
borrowed money of Company, then the Commitment Fee Percentage shall be
determined on the basis of such rating; (iii) if the ratings established or
deemed to have been established by Xxxxx'x or S&P for the senior or
subordinated, unsecured, non-credit enhanced, long-term Indebtedness for
borrowed money of Company shall fall within different Categories, the Commitment
Fee Percentage shall be based on the Category corresponding to the higher
rating; and (iv) if any rating established or deemed to have been established by
Xxxxx'x or S&P shall be changed (other than as a result of a change in the
rating system of Xxxxx'x or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Commitment Fee Percentage shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of Xxxxx'x or S&P
shall change, or if either of such rating agencies shall cease to be in the
business of rating corporate debt obligations, Company and Lenders shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such changed rating system or the non- availability of
ratings from such rating agency, and pending the effectiveness of any such
amendment, the ratings of such rating agency most recently in effect prior to
such change or cessation shall be employed in determining the Commitment Fee
Percentage.
"Commitment Termination Date" means September 20, 2001.
"Company" has the meaning assigned to that term in the
introduction to this Agreement.
"Company Change of Control" has the meaning assigned to
that term in subsection 10.25A.
16
"Compliance Certificate" means a certificate substantially in
the form of Exhibit VI annexed hereto delivered to Lenders by Company and
Borrowers pursuant to subsection 5.1(iii).
"Consolidated Net Worth" means, as at any date of
determination, the sum of the capital stock and additional paid-in capital plus
retained earnings (or minus accumulated deficits) of Company and its
Subsidiaries on a consolidated basis determined in conformity with GAAP.
"Consolidated Total Debt" means, as at any date of
determination, the aggregate amount of all Indebtedness of Company and its
Subsidiaries plus (without duplication) the aggregate amount of all Contingent
Obligations of Company and its Subsidiaries (other than Contingent Obligations
in the form of guarantees, letters of credit and surety bonds, in each case
securing reclamation and other performance obligations in the ordinary course of
business); provided that the obligations (contingent or otherwise) of Company or
any of its Subsidiaries under any Interest Rate Protection Agreement, Currency
Protection Agreement, or any option, forward sales contract or futures contract
designed to protect Company and its Subsidiaries from fluctuations in interest
rates, currency values or the Price of Gold shall be valued collectively on a
net aggregate xxxx-to-market basis where a net aggregate xxxx-to-market value
for all obligations under such Interest Rate Protection Agreements, Currency
Protection Agreements, options and contracts greater than zero shall not be
deducted from the sum of the aggregate amounts of Indebtedness and Contingent
Obligation used to calculate Consolidated Total Debt and a net aggregate
xxxx-to-market value for all obligations under such Interest Rate Protection
Agreements, Currency Protection Agreements, options and contracts of less than
zero shall be added to the sum of the aggregate amounts of Indebtedness and
Contingent Obligations to calculate Consolidated Total Debt.
"Contingent Obligation", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
17
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Interest Rate Protection Agreements, Currency
Protection Agreements and options, forward sales contracts and futures contracts
designed to protect Company and its Subsidiaries from fluctuations in interest
rates, currency values or the Price of Gold. Contingent Obligations shall
include, without limitation, (a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other party or parties
to an agreement, and (c) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (X) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise) or
(Y) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under
subclauses (X) or (Y) of this sentence, the primary purpose or intent thereof is
as described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject. "Contractual Obligations" shall
include the Subordinated Debentures.
"Covered Tax" means any Tax that is not an Excluded Tax.
18
"Currency Protection Agreement" means any foreign exchange
contract, currency swap agreement, futures contract, option contract or other
similar agreement or arrangement designed to protect Company or any of its
Subsidiaries against fluctuations in currency values.
"Delivered" or "Delivery" to a particular party means that such
party receiving Gold hereunder has received confirmation from the bullion
depository designated hereunder by such party that it is holding Gold for such
party's account in an allocated or unallocated account.
"Deposit Account" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Dollar Equivalents" means (i) with respect to the amount of
any Loan funded in Canadian Dollars or with respect to the aggregate amount
which is available for drawing, or which is drawn under, any Canadian Letter of
Credit denominated in Canadian Dollars or the Face Amount of any Bankers'
Acceptances, the amount of Dollars which is equivalent to such amount of
Canadian Dollars determined at the rate of exchange quoted by The Bank of Canada
at 12:00 Noon (New York time) on the date of determination for the spot purchase
in the foreign exchange market of Dollars with an equivalent amount of Canadian
Dollars, (ii) with respect to the amount of any Loan funded in Australian
Dollars or with respect to the aggregate amount which is available for drawing,
or which is drawn under, any Australian Letter of Credit denominated in
Australian Dollars, the amount of Dollars which is equivalent to such amount of
Australian Dollars determined at the spot rate calculated by the Australian
Administrative Agent as the "United States Dollar hedge settlement rate (vs.
Australian Dollars)" that appears on the HSRA page on the Reuters Screen under
the heading "US Dollar hedge settlement rate" (or any page that can reasonably
be considered a replacement page) at 9:45 A.M. (Sydney time) on the date of
determination for the spot purchase in the foreign exchange market of Dollars
with an equivalent amount of Australian Dollars or (iii) with respect to the
amount of any Loan funded in Gold, the amount in Dollars which is the product
19
of the number of Ounces of Gold comprising such Loan multiplied by the Price of
Gold as in effect on the date of determination.
"Dollar Loans" means Loans denominated and advanced to
any Borrower in Dollars.
"Dollars" and the sign "$" mean the lawful money of the
United States of America.
"Draft" means, at any time, a xxxx of exchange in substantially
the form of Exhibit III-A annexed hereto, or in substantially the form
customarily used by the applicable Canadian Lender, in each case drawn by
Canadian Borrower on a Canadian Lender and bearing such distinguishing letters
and numbers as such Canadian Lender may determine, but which at such time,
except as otherwise provided herein, has not been accepted by such Canadian
Lender as a Bankers' Acceptance.
"Drawing Date" means any Business Day fixed pursuant to
subsection 2.8 for the creation of Bankers' Acceptances.
"Drawing Notice" has the meaning assigned to that term
in subsection 2.8B.
"Effective Date" means the date on or before September 30, 1996
on which the conditions set forth in subsection 3.1 are satisfied or waived.
"Eligible Assignee" means (A)(i) a commercial bank or trust
company organized under the laws of the United States or any state thereof; (ii)
a savings and loan association or savings bank organized under the laws of the
United States or any state thereof; (iii) a commercial bank or trust company
organized under the laws of any other country or a political subdivision
thereof; provided that (x) such bank or trust company is acting through a branch
or agency located in the United States or (y) such bank or trust company is
organized under the laws of a country that is a member of the Organization for
Economic Cooperation and Development or a political subdivision of such country;
and (iv) any other entity which is an "accredited investor" (as defined in
Regulation D under the Securities Act) which extends credit or buys loans funded
in Dollars, Canadian Dollars, Australian Dollars and Gold as one of its
businesses, in each
20
case (under clauses (i) through (iv) above) that is reasonably acceptable to the
Applicable Administrative Agent and Administrative Agent; and (B) any Lender and
any Affiliate of any Lender; provided that no Affiliate of Company shall be an
Eligible Assignee; and provided further that such Eligible Assignee must have at
the time of determination unimpaired capital and surplus of not less than
$100,000,000.
"Employee Benefit Plan" means any "employee benefit plan" as
defined in Section 3(3) of ERISA that is subject to Title I of ERISA (a) that
is, or was within the past six years, maintained or contributed to by Company or
any of its ERISA Affiliates and (b) with respect to which Company or any of its
ERISA Affiliates retains any liability.
"Environmental Claim" means any notice of violation, claim,
demand, abatement order or other order or direction (conditional or otherwise)
by any governmental authority or any Person for any damage, including, without
limitation, personal injury (including sickness, disease or death), tangible or
intangible property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restrictions, in
each case relating to, resulting from or in connection with Hazardous Materials
and relating to Company, any of its Subsidiaries, any Affiliates of Company or
any Facility.
"Environmental Laws" means all statutes, ordinances,
orders, rules, regulations or decrees relating to (i) environmental matters,
including, without limitation, those relating to fines, injunctions, penalties,
damages, contribution, cost recovery compensation, losses or injuries resulting
from the Release or threatened Release of Hazardous Materials, (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials, or
(iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner applicable
to Company or any of its Subsidiaries or any or their respective properties.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
21
"ERISA Affiliate", as applied to any Person, means (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member.
"ERISA Event" means (i) a "reportable event" within the meaning
of Section 4043 of ERISA and the regulations issued thereunder with respect to
any Pension Plan (excluding those for which the provision for 30-day notice to
the PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a material
required installment under Section 412(m) of the Internal Revenue Code with
respect to any Pension Plan or the failure to make any material required
contribution to a Multiemployer Plan; (iii) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in Section
4041(c) of ERISA; (iv) the withdrawal by Company or any of its ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in material liability pursuant to Sections
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
would reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan;
(vi) the imposition of material liability on Company or any of its ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the complete or partial
withdrawal by Company or any of its ERISA Affiliates (within the meaning of
Sections 4203 and 4205 of ERISA) from any Multiemployer Plan, or the receipt by
Company or any of its ERISA
22
Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA, in any such
case if such event would reasonably be expected to result in material liability
to Company or its ERISA Affiliates; (viii) the occurrence of an act or omission
which could give rise to the imposition on Company or any of its ERISA
Affiliates of material fines, penalties, taxes or related charges under Chapter
43 of the Internal Revenue Code or under Section 409 or 502(c), (i) or (l) or
4071 of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a
material claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
Company or any of its ERISA Affiliates in connection with any such Employee
Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the
failure of any Pension Plan (or any other Employee Benefit Plan intended to be
qualified under Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of any trust forming
part of any Pension Plan to qualify for exemption from taxation under Section
501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant
to Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to
ERISA with respect to any Pension Plan.
"Eurodollar Rate" means, for any Interest Rate Determination
Date with respect to a Eurodollar Rate Loan, the rate (expressed as a percentage
per annum) which is the arithmetic mean (rounded upwards, if necessary, to the
next 1/16 of one percent) of the offered rates for Dollar deposits for a period
equal to the Interest Period for such Eurodollar Rate Loan that appears on the
LIBO page on the Reuters Screen (or any page that can reasonably be considered a
replacement page) at approximately 11:00 a.m., London time, on such Interest
Rate Determination Date. If the rate set forth above is not available on the
Reuters Screen, such rate shall be the rate (rounded upwards, if necessary, to
the next 1/16 of one percent) equal to the arithmetic mean of the respective
rates per annum at which Dollar deposits approximately equal in principal amount
to such Eurodollar Rate Loan and for a maturity comparable to such Interest
Period are offered in immediately available funds to the London branches of the
Reference Lenders in the London interbank market at approximately 11:00 a.m.,
London time, on such Interest
23
Rate Determination Date. The Administrative Agent shall determine the
Eurodollar Rate and such determination shall be conclusive absent manifest
error.
"Eurodollar Rate Loans" means Dollar Loans bearing interest at
rates determined by reference to the Adjusted Eurodollar Rate or the Eurodollar
Rate, as the case may be, as provided in subsection 2.2A.
"Event of Default" means each of the events set forth in
Section 7.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Excluded Tax" means any of the following taxes, levies,
imposts, duties, deductions, withholdings or charges, and all liabilities with
respect thereto: taxes (without regard to whether such taxes are collected by
withholding or otherwise) imposed by a government or taxing authority (and any
interest, additions to tax, penalties, fines or other charges in respect thereof
other than those arising from a breach by Company or any Borrower of its
obligations hereunder) on any Lender or any Agent that (i) are imposed on, based
on or measured by gross or net income or gross or net receipts (including,
without limitation, capital gains taxes, excess profits taxes, minimum taxes,
alternative minimum taxes and taxes on tax preference items) or (ii) are
capital, net worth, intangible, excise, franchise, doing business, accumulated
earnings, personal holding company, or similar taxes other than franchise, doing
business or similar taxes imposed solely as a result of the transactions
contemplated hereby.
"Existing Credit Agreement" has the meaning assigned to that
term in the recitals of this Agreement.
"Existing Lenders" has the meaning assigned to that term
in the recitals of this Agreement.
"Exposure" means the Australian Exposure, the Canadian
Exposure and/or the U.S. Exposure.
24
"Face Amount" means, in respect of a Draft or a Bankers'
Acceptance, as the case may be, the amount payable to the holder thereof on its
maturity.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period 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 immediately preceding
Business Day) by the Federal Reserve Bank of New York, or if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fiscal Year" means the fiscal year of Company ending on
December 31 of each calendar year.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the appli-
cation thereof set forth in subsection 1.2, generally accepted accounting
principles set forth in opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
state-
ments by such other entity as may be approved by a significant segment of the
United States accounting profession, in each case as the same are applicable to
the circumstances as of the date of determination.
"Gold" means unallocated or pool account gold or refined gold
in bar form (which bears the stamp of a smelter and assayer from the good
delivery list of the London Bullion Market Association, as such terms are
understood in the gold trade) of a purity (i.e. the ratio of fine gold per 1,000
parts of gold, expressed to the fourth decimal place) of at least .9950 or such
other ratio as Borrowers and Lenders may agree with respect to any Gold Loan.
"Gold Advance Date" means, in relation to any outstanding Gold
Loan (including any Gold Loan that has been
25
continued for successive Interest Periods), the date upon which such Gold Loan
initially was funded.
"Gold Loan" means a loan of Gold made by Lenders to any
Borrower hereunder and upon which interest shall accrue at the Gold Rate.
"Gold Rate" means, with respect to any Gold Loan advanced by
any Lender for any Interest Period applicable thereto, the rate of interest per
annum, calculated on the basis of a 360 day year (rounded upwards, if necessary,
to the next 1/16% of one percent) equal to the greater of (i) the Applicable
Margin, and (ii) the Eurodollar Rate plus the Applicable Margin less the mean
rate quoted in the London Interbank Forward Bullion Market as set forth on the
Reuters GOFO page at 11:00 A.M. (London Time) two Business Days prior to the
first day of such Interest Period. If the rate set forth above is not available
on the Reuters GOFO page, the Gold Rate shall be the rate of interest per annum,
calculated on the basis of a 360 day year, equal to the arithmetic average
(rounded upwards, if necessary, to the next 1/16% of one percent) of the rates
offered by the Gold Rate Reference Lenders two Business Days prior to the first
day of the applicable Interest Period.
"Gold Rate Reference Lenders" means Chase and CIBC.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
federal, state or local governmental authority, agency or court.
"Government Acts" has the meaning assigned to that term
in subsection 2.7H.
"Grid Gold Acknowledgement" means an acknowledgement by a
Borrower substantially in the form of Exhibit V annexed hereto.
"Hazardous Materials" means any pollutant, contaminant, toxic
or hazardous substance, toxic or hazardous material, toxic or hazardous
constituent or toxic or hazardous waste, as such terms are defined in or
pursuant to any Environmental Law.
26
"Indebtedness", as applied to any Person, means (i) all
indebtedness for borrowed money or gold loans, (ii) that portion of obligations
with respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP, (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money, (iv) any obligation owed for all or any part of the deferred
purchase price of property or services, which purchase price is (A) due more
than 90 days from the date of incurrence of the obligation in respect thereof or
(B) evidenced by a note or similar written instrument, and (v) all obligations
of the type described in clauses (i) through (iv) above secured by any Lien on
any property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person. Obligations under Interest Rate
Protection Agreements, Currency Protection Agreements, and options, forward
sales contracts and futures contracts designed to protect Company and its
Subsidiaries from fluctuations in interest rates, currency values or the Price
of Gold (excluding any Gold Loans) constitute Contingent Obligations and not
Indebtedness.
"Indemnitee" has the meaning assigned to that term in
subsection 10.3.
"Intellectual Property" means all patents, trademarks,
tradenames, copyrights, technology, know-how and processes used in or necessary
for the conduct of the business of Company and its Subsidiaries as currently
conducted that are material to the condition (financial or otherwise), business
or operations of Company and its Subsidiaries, taken as a whole.
"Interest Payment Date" means (i) with respect to any Base Rate
Loan, March 31, June 30, September 30 and December 31 of each year, commencing
on the first such date to occur after the Effective Date, and (ii) with respect
to any Eurodollar Rate Loan, Bank Xxxx Swap Rate Loan or Gold Loan, the last day
of each Interest Period applicable to such Loan; provided that in the case of
each Interest Period of longer than three months or 90 days, as the case may be,
"Interest Payment Date" shall also include each three month or 90 day, as the
case may be, anniversary of the commencement of such Interest Period.
27
"Interest Period" means (i) with respect to each Eurodollar
Rate Loan or Bank Xxxx Swap Rate Loan, a period of one, two, three or six
months, and (ii) with respect to each Gold Loan, a period of 30, 60, 90 or 180
days and any other period (subject to availability to each Lender), in each case
as selected by the applicable Borrower pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation; provided that, subject to the provisions of
subsection 2.6C, no Interest Period in respect of any Gold Loan may be selected
by a Borrower if any Lender is for any reason unable to fund a Gold Loan having
such Interest Period.
"Interest Rate Protection Agreement" means any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
synthetic cap agreement or other similar agreement or arrangement designed to
protect Company or any of its Subsidiaries against fluctuations in interest
rates.
"Interest Rate Determination Date" means each date for
calculating the Adjusted Eurodollar Rate, the Eurodollar Rate or the Gold Rate
for purposes of determining the interest rate in respect of an Interest Period.
The Interest Rate Determination Date shall be the second Business Day prior to
the first day of the related Interest Period.
"Internal Revenue Code" means the United States Internal
Revenue Code of 1986, as amended to the date hereof and from time to time
hereafter.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, stock or other Securities of any other Person, or (ii) any direct
or indirect loan, advance (other than advances to current or former employees or
directors pursuant to employee benefit plans, programs or employment
arrangements or otherwise for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in each case in the ordinary course of
business) or capital contribution by Company or any of its Subsidiaries to any
other Person (other than a Subsidiary of Company) including all indebtedness and
accounts receivable from that other Person that are not current assets or did
not arise from sales to that other Person in the ordinary course of business. A
contribution of undeveloped real
28
property or other mineral interests to a Joint Venture shall not be deemed to be
a capital contribution to any other Person. The amount of any Investment shall
be the original cost of such Investment plus the cost of all additions thereto
less the amount of all cash received as repayment of principal or return of
capital, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment.
"Issuing Lender" means (i) with respect to any U.S Letter of
Credit or any Australian Letter of Credit, Chase, and (ii) with respect to any
Canadian Letter of Credit, Chase Canada.
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form.
"Lender" and "Lenders" means the persons identified as
"Lenders" and listed on the signature pages of this Agreement, together with
their successors and permitted assigns pursuant to subsection 10.1; provided
that the term "Lenders", when used in the context of a particular Commitment,
shall mean Lenders having that Commitment.
"Lending Office" means, in relation to any Lender that is a
Canadian Lender, such Lender's Canadian Lending Office; in relation to any
Lender that is an Australian Lender, such Lender's Australian Lending Office; in
relation to any Lender that is a U.S. Lender, such Lender's U.S. Lending Office;
or in relation to any Lender that is two or more of a U.S. Lender, a Canadian
Lender and/or an Australian Lender, such Lender's U.S. Lending Office, insofar
as borrowings and payments relating to U.S. Loans or U.S. Letters of Credit are
concerned, Canadian Lending Office, insofar as borrowings and payments relating
to Canadian Loans, Canadian Letters of Credit or Bankers' Acceptances are
concerned, or Australian Lending Office, insofar as borrowings and payments
relating to Australian Loans or Australian Letters of Credit are concerned.
"Lending Unit" means (i) any U.S. Lender, (ii) its affiliated
Canadian Lender (if any) or the fronting bank which has entered into a fronting
bank agreement to act as a Canadian Lender for such U.S. Lender (if any), and
(iii) its affiliated
29
Australian Lender (if any) or the fronting bank which has entered into a
fronting bank agreement to act as an Australian Lender for such U.S. Lender (if
any), as set forth on the signature pages hereof or in any applicable Assignment
and Acceptance.
"Letter of Credit" or "Letters of Credit" means Standby Letters
of Credit issued, or deemed issued, by the applicable Issuing Lender for the
account of any Borrower pursuant to subsection 2.7A.
"Letter of Credit Fee Percentage" means the applicable
percentage set forth below based upon the actual or stated senior implied
ratings established by S&P and Xxxxx'x, respectively, applicable on such date to
the senior, unsecured, non-credit enhanced, long-term Indebtedness for borrowed
money of Company (or, if no actual or stated senior implied ratings are in
effect, the ratings one category higher than the ratings for subordinated,
unsecured, non-credit enhanced long-term Indebtedness for borrowed money):
Category S&P/Xxxxx'x Rating Percentage
1 A-/A3 0.30%
or above
2 BBB+/Baa1 0.35%
3 BBB/Baa2 0.40%
4 BBB-/Baa3 0.45%
5 BB+/Ba1 0.625%
or below
For purposes of the foregoing, (i) if neither Xxxxx'x nor S&P
shall have in effect a rating for the senior or subordinated, unsecured,
non-credit enhanced, long-term Indebtedness for borrowed money of Company (other
than by reason of the circumstances referred to in the last sentence of this
definition), then the Letter of Credit Fee Percentage shall be based on Category
5; (ii) if only one of Xxxxx'x and S&P shall have in effect a rating for the
senior or subordinated, unsecured, non-credit enhanced, long-term Indebtedness
for
30
borrowed money of Company, then the Letter of Credit Fee Percentage shall be
determined on the basis of such rating; (iii) if the ratings established or
deemed to have been established by Xxxxx'x or S&P for the senior or
subordinated, unsecured, non-credit enhanced, long-term Indebtedness for
borrowed money of Company, shall fall within different Categories, the Letter of
Credit Fee Percentage shall be based on the Category corresponding to the higher
rating; and (iv) if any rating established or deemed to have been established by
Xxxxx'x or S&P shall be changed (other than as a result of a change in the
rating system of Xxxxx'x or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Letter of Credit Fee Percentage shall apply during the period commencing on
the effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of Xxxxx'x or
S&P shall change, or if any such rating agency shall cease to be in the business
of rating corporate debt obligations, Company and Lenders shall negotiate in
good faith to amend the references to specific ratings in this definition to
reflect such changed rating system or the non- availability of ratings from such
rating agency, and pending the effectiveness of any such amendment, the ratings
of such rating agency most recently in effect prior to such change or cessation
shall be employed in determining the Letter of Credit Fee Percentage.
"Letter of Credit Usage" means the Australian Letter of
Credit Usage, the Canadian Letter of Credit Usage and/or the U.S.
Letter of Credit Usage.
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Lien" shall not include any arrangement with respect to Joint Ventures where
legal title to assets in which the Company or Borrower or their Subsidiaries
have a beneficial interest is held in the name of the operator or another
participant in such Joint Venture or in the name of the Joint Venture if such
arrangement is not for the purpose of securing Indebtedness (other than
31
Indebtedness that may arise in respect of a participant's lien or an operator's
lien).
"Loan" or "Loans" means any Canadian Loans, any
Australian Loans or any U.S. Loans, or any combination thereof.
"Loan Documents" means this Agreement, any applications,
reimbursement agreements and other documents or certificates executed in favor
of any Issuing Lender relating to the Letters of Credit, any Notes, any Drafts,
any Bankers' Acceptances and any Grid Gold Acknowledgements.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board as in effect from time to time.
"Marketable Securities" means corporate cash investments with a
weighted average portfolio maturity of two years or less, consisting of (i)
marketable direct obligations issued or unconditionally guaranteed by the United
States Government or Canadian Government or the Commonwealth of Australia or
issued by any agency thereof and backed by the full faith and credit of the
United States or Canada or the Commonwealth of Australia thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any Province of Canada or any state or territory of the Commonwealth
of Australia or any political subdivision of any such state, Province or
territory or any public instrumentality thereof at the time of acquisition
having the highest rating obtainable from S&P, Moody's or Dominion Bond Rating
Service; (iii) commercial paper at the time of acquisition having a rating of at
least A-1 (or A-2, provided such commercial paper has a rating of at least P-1
from Moody's) from S&P, at least P-1 (or P-2, provided such commercial paper has
a rating of at least A-1 from S&P) from Moody's or least R-1 (Middle) from
Dominion Bond Rating Service and, any of the preceding ratings may be met by an
attached letter of credit from a bank or municipal bond insurance; (iv)
certificates of deposit or bankers' acceptances issued by any commercial bank or
trust company organized under the laws of the United States of America or any
state thereof or the District of Columbia or under the laws of Canada or any
Province thereof or under the laws of the Commonwealth of Australia or any state
or territory thereof or any non-U.S. commercial bank which at the time of
acquisition is ranked among the 100 largest banks in the world (by assets as
32
ranked by the American Banker Journal), and rated B/C or better by IBCA or KBW
rating service and having at least one of the credit ratings identified in
clause (iii) above (or higher credit ratings) obtainable from S&P, Moody's or
Dominion Bond Rating Service; (v) Eurodollar time deposits purchased directly
from any commercial bank or trust company described in clause (iv) above; and
(vi) repurchase agreements and reverse repurchase agreements with any commercial
bank or trust company described in clause (iv) above or with any financial
institution whose commercial paper at the time of acquisition has a rating of at
least A-1 from S&P or whose long-term Indebtedness at the time of acquisition
has a rating of at least Aa, relating to marketable direct obligations issued or
unconditionally guarantied by the United States Government or Government of
Canada or the Government of the Commonwealth of Australia or issued by any
agency thereof and backed by the full faith and credit of the United States or
Canada or the Commonwealth of Australia; and (vii) indebtedness of any
corporation at the time of acquisition rated A1 or AA by S&P or equivalent
rating service.
"Material Adverse Effect" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company, Company and its Subsidiaries, taken as a
whole, or any Borrower, and in the case of any ERISA Event, the ERISA Affiliates
of Company taken as a whole, or (ii) a material adverse effect on the ability of
Company or any Borrower to perform, or of any Agent or Lenders to enforce, the
Obligations.
"Material Subsidiary" means any Borrower, any Subsidiary that
owns any assets constituting a portion of the Mining Group and any other
Subsidiary (i) whose total assets at the end of any fiscal quarter of Company
equal more than 10% of the Consolidated Net Worth of Company and its
Subsidiaries as at the end of such quarter or (ii) whose total revenue for any
Fiscal Year of Company equals more than 10% of the consolidated revenues of the
Company and its Subsidiaries for such Fiscal Year determined in accordance with
GAAP. A Subsidiary that is or becomes a Material Subsidiary shall not cease to
be a Material Subsidiary if it subsequently fails to meet either of the two
preceding requirements without the consent of the Requisite Lenders. The
Material Subsidiaries as of the Effective Date are identified in Schedule 4.1
annexed hereto.
33
"Mining Group" means the currently producing mines, part or all
of which are owned by Company or any of its Subsidiaries or Joint Ventures,
which are listed in the form of Cash Flow Analysis annexed as Schedule 1.1
hereto, as such Schedule 1.1 may be amended from time to time by Company to add
or delete any mines which are subsequently developed or acquired or exhausted or
disposed of.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan", as defined
in Section 3(37) of ERISA, (i)(a) to which Company or any of its ERISA
Affiliates is contributing, or within the past six years has contributed, or (b)
to which Company or any of its ERISA Affiliates has, or within the past six
years has had, an obligation to contribute, and (ii) with respect to which
Company or any of its ERISA Affiliates retains any liability.
"Non-Recourse Debt" means indebtedness for borrowed money or
gold loans the repayment of which, by its express contract terms, may be
enforced only by foreclosure or other realization on any collateral security
therefor and as to which the obligor thereon shall not otherwise have any
personal liability.
"Notes" means the promissory notes of Borrowers issued to
Lenders pursuant to subsection 2.1D, substantially in the forms of Exhibit IV-A
(in the case of Canadian Borrower), Exhibit IV-B (in the case of Australian
Borrower), and Exhibit IV-C (in the case of U.S. Borrower) annexed hereto, and
as they may be further amended, supplemented or otherwise modified from time to
time.
"Notice of Allocation" means a notice substantially in the form
of Exhibit XIII annexed hereto delivered by Borrowers pursuant to subsection
2.1A for the purpose of allocating the Commitments among the Canadian
Allocation, the Australian Allocation and the U.S. Allocation.
"Notice of Borrowing" means a notice substantially in the form
of Exhibit I annexed hereto delivered by the applicable Borrower to the
Applicable Administrative Agent and Administrative Agent pursuant to subsection
2.1B with respect to
34
a proposed borrowing of Loans.
"Notice of Conversion/Continuation" means a notice
substantially in the form of Exhibit II annexed hereto delivered by a Borrower
to the Applicable Administrative Agent and Administrative Agent pursuant to
subsection 2.2D with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect to the Loans
specified therein.
"Notice of Issuance of Letter of Credit" means a notice in the
form of Exhibit XI annexed hereto, delivered by a Borrower to the Applicable
Administrative Agent and Administrative Agent pursuant to subsection 2.7B with
appropriate insertions and deletions, with respect to the proposed issuance or
amendment of
a Letter of Credit.
"Obligations" means all obligations of every nature of Company
and each Borrower from time to time owed to Agents, Arranger, Lenders or any of
them under the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under or cash collateralization of Letters of Credit, payment at
maturity or cash collateralization of Bankers' Acceptances, fees, expenses,
indemnification or otherwise.
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its chairman of the board
(if an officer) or its president or one of its vice presidents and by its chief
financial officer or its treasurer or, with respect to Australian Borrowers, any
director or secretary of Australian Borrower; provided that every Officers'
Certificate with respect to the compliance with a condition precedent to the
making of any Loans or the issuance of any Letter of Credit or the creation and
purchase of any Bankers' Acceptance hereunder shall include (i) a statement that
the officer or officers or directors making or giving such Officers' Certificate
have read such condition and any definitions or other provisions contained in
this Agreement relating thereto, (ii) a statement that, in the opinion of the
signers, they have made or have caused to be made such examination or
investigation as is necessary to enable them to express an informed opinion as
to whether or not such condition has been complied with, and (iii) a
35
statement as to whether, in the opinion of the signers, such condition has been
complied with.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that Person is the lessor.
"Ounce" or "Ounces" means a fine xxxx ounce or fine xxxx
ounces.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor thereto).
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Permitted Encumbrances" means the following types of
Liens:
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by subsection
5.3, other than any Lien imposed pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or pursuant to Section 302(f) or
4068 of ERISA, or deposits or pledges to obtain the release of any such
liens;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed by law
and Liens of smelters, refiners and other processors of ore, minerals
and other products thereof, in each case where incurred in the ordinary
course of business for sums not yet delinquent or being contested in
good faith, or deposits or pledges to obtain the release of any such
Liens if such reserve or other appropriate provision, if any, as shall
be required by GAAP shall have been made therefor;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
36
unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade contracts, performance
and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an Event
of Default under subsection 7.8;
(v) leases or subleases granted to others not
interfering in any material respect with the ordinary
conduct of the business of Company or any of its
Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances or defects in title to property not interfering in any
material respect with the ordinary conduct of the business of Company
or any of its Subsidiaries;
(vii) any interest or title of a lessor or sublessor
under any lease not prohibited by this Agreement;
(viii) precautionary filings relating solely to leases
permitted by this Agreement;
(ix) mineral, oil, gas, and geothermal leases, licenses, grazing
leases, timber cutting rights, easements, minimum royalties and rents,
delayed rentals, work commitments, production royalties, profit
interests, surface owner interests, extralateral rights, and rights of
subadjacent and lateral support burdening any properties of Company or
any of its Subsidiaries;
(x) the paramount rights of the United States of America or any
other governmental authority in and to any unpatented mining or mill
site claims or leases held by Company or any of its Subsidiaries;
37
(xi) the reservations, limitations, provisos, and
conditions, if any, expressed in any original grants from
the Crown;
(xii) Liens of Joint Venture participants and operators on
properties being developed or operated by Joint Ventures securing the
respective obligations of the joint venturers or participants to
advance funds or reimburse advances of funds or to perform obligations
under the applicable joint venture agreements;
(xiii) Liens in favor of Company or Borrowers; and
(xiv) Liens or deposits or pledges to secure the performance by
Company, Borrowers or their Subsidiaries or Joint Ventures with respect
to the remediation, reclamation or stabilization of disturbed
properties currently or formerly owned or leased by Company, Borrowers
or their Subsidiaries or Joint Ventures; provided that any such Liens
attach only to the property to be remediated, reclaimed or stabilized;
and provided further that Company shall have first used its best
efforts to cause a letter of credit to be issued or deliver a guaranty
to assure performance in lieu of granting such Liens or making such
deposits or pledges; and provided further such Liens, deposits or
pledges are promptly released upon satisfaction of such remediation,
reclamation or stabilization obligation.
excluding, however, in any case, any such Liens granted or created by Company or
any of its Subsidiaries (other than Prime) on or with respect to their
properties or assets to secure any obligations of Prime at any time that
Indebtedness permitted under subsection 6.1(vi) is outstanding.
"Person" means and includes natural persons, corpora-
tions, limited partnerships, general partnerships, joint stock companies, Joint
Ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and
governments and agencies and political subdivisions thereof.
38
"Potential Event of Default" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"Price of Gold" means, on any day, and except as provided in
the next sentence, the price per Ounce of Gold collectively set by the fixing
members of the London Bullion Market Association in the afternoon (London time)
of such day, (including an amount, if any, equal to the premium and any other
additional amounts that would be payable in the applicable market in connection
with a purchase of Gold). If there is no such fixing, then (a) if such day is
any day other than a Saturday, Sunday or holiday in London, the "Price of Gold"
shall be the publicly quoted price in Dollars per Ounce of Gold on such other
accessible international bullion market as may be selected by Administrative
Agent or (b) if no such quotation is available, or such day is a Saturday, a
Sunday or a holiday in London, the "Price of Gold" shall be the last price so
set by the fixing members of the London Bullion Market Association.
"Prime" means Prime Resources Group, Inc., a British Columbia
corporation, approximately 50.6% of the capital stock of which is owned directly
or indirectly by Canadian Borrower as of the date hereof, together with its
Subsidiaries.
"Pro Rata Share" means, with respect to any Lending Unit (and
of any Lender(s) constituting such Lending Unit), the percentage obtained by
dividing (x) the Exposure of that Lending Unit (or of any Lender(s) constituting
such Lending Unit) by (y) the aggregate amount of the Exposure for all Lending
Units (or of all such Lenders constituting such Lending Unit) in any such case
as the applicable percentage may be adjusted by assignments permitted pursuant
to subsection 10.1B. The initial Pro Rata Share of each Lending Unit (and of any
Lender(s) constituting such Lending Unit) is set forth opposite the name of that
Lending Unit in Schedule 2.1 annexed hereto.
"Purchase Money Security Interest" means any security interest,
however denominated, on any property created or retained at the time of
acquisition of such property in order to secure all or any part of the
acquisition cost thereof or in order to secure all or any Indebtedness incurred
for the purpose
39
of financing or refinancing (without increasing the then outstanding amount)
such Indebtedness.
"Reference Lenders" means Chase and CIBC.
"Register" has the meaning assigned to that term in
subsection 10.1.F.
"Regulation D" means Regulation D of the Board, as in effect
from time to time.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the environment (including,
without limitation, the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), or into or out of
any Facility, including the movement of any Hazardous Material through the air,
soil, surface water, groundwater or property.
"Requisite Lenders" means Lending Units having or holding 51%
or more of the sum of the aggregate Exposure of all Lending Units.
"Responsible Officer" means, with respect to any Person, any
one of the chairman of the board (if an officer), president, vice presidents,
chief financial officer and treasurer of such Person or, with respect to
Australian Borrower, any director or secretary of Australian Borrower.
"Restricted Junior Payment" means (i) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of preferred stock of
Company or any Subsidiary of Company, and (ii) any payment or prepayment of
principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in-substance or legal defeasance), sinking
fund or similar payment with respect to any Subordinated Indebtedness.
"S&P" means Standard & Poor's Ratings Group - a McGraw Hill
Company.
40
"Securities" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Solvent" means, with respect to any Person, that as of the
date of determination (i) the then fair saleable value of the property of such
Person as a going concern is (y) greater than the total amount of liabilities
(including anticipated Contingent Obligations and other contingent liabilities
only to the extent of the probable liability with respect to such Contingent
Obligations and other contingent liabilities) of such Person and (z) greater
than the amount that will be required to pay the probable liabilities of such
Person's then existing debts as they become absolute and matured; (ii) such
Person's capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe that it will incur, debts beyond its ability to pay such debts
as they become due.
"Standby Letter of Credit" means any standby letter of credit
or similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or Operating Leases of Company or any of its Subsidiaries, (v)
performance, payment, deposit or surety obligations of Company or any of its
Subsidiaries, in any case if required by law or governmental rule or regulation
or agreement in accordance with custom and practice in the industry, (vi)
obligations of Company or any of its Subsidi-
41
aries imposed by statute or by a court of competent jurisdiction to post appeal
bonds or other security in connection with litigation appeals, and (vii) other
obligations of Company or any of its Subsidiaries approved by Administrative
Agent in its sole discretion; provided that Standby Letters of Credit may not be
issued for the purpose of supporting trade payables.
"Statutory Reserves" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority to which Administrative
Agent is subject for new negotiable non-personal time deposits in Dollars of
over $100,000 with maturities approximately equal to three months. Such reserve
percentages shall include those imposed pursuant to such Regulation D of the
Board. Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Debentures" means Company's 5.5% Convertible
Subordinated Notes due 2000 in the aggregate original principal amount of
$150,000,000.
"Subordinated Indebtedness" means (i) the Subordinated
Debentures, and (ii) any other Indebtedness of Company or any of its
Subsidiaries that is subordinated to the Obligations (including any guaranty of
the Obligations) on terms and conditions approved in writing by Requisite
Lenders.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association, Joint Venture or other business entity of
which 50% or more of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
42
"Tax" or "Taxes" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed.
"Tax Transferee" means any Person who acquires any interest in
the Loans (whether or not by operation of law) or the office to which a Lender
or any Agent has transferred its Loans for purposes of determining where the
Loans are made, accounted for or booked.
"Total Utilization of Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Loans (valued in Dollar Equivalents as of such date of determination), plus (ii)
the Canadian Letter of Credit Usage, plus (iii) the Australian Letter of Credit
Usage, plus (iv) the U.S. Letter of Credit Usage, plus (v) the BA Usage.
"U.S. Allocation" means the portion of the Commitments
allocated to U.S. Borrower in Schedule 2.1 or in the most recent Notice of
Allocation delivered by Borrowers and Company pursuant to subsection 2.1A.
"U.S. Base Rate (Canada)" means the rate of interest per annum
equal to the greater of (i) the rate which the principal office of the Canadian
Administrative Agent in Toronto, Ontario announces from time to time as its
"base rate" and which is its reference rate of interest for loans in U.S.
Dollars to its Canadian borrowers; and (ii) 1/2 of 1% above the U.S. Federal
Funds Rate, adjusted automatically with each change in such rate all without the
necessity of any notice to Canadian Borrower or any other Person.
"U.S. Base Rate (Canada) Loans" means Dollar Loans made
by Canadian Lenders pursuant to subsection 2.1A(i) and bearing
interest at rates determined by reference to the U.S. Base Rate
(Canada) as provided in subsection 2.2A.
"U.S. Base Rate Loans" means Dollar Loans made by U.S.
Lenders pursuant to subsection 2.1A(iii) and bearing interest at
rates determined by reference to the Alternate Base Rate as
provided in subsection 2.2A.
43
"U.S. Borrower Account" means that certain account with
the Administrative Agent, care of Agent Bank Services Group, 000 X. 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Clearing Account Number 323508308, maintained at
Chase.
"U.S. Commitment" means the commitment of each U.S.
Lender (i) to make or maintain U.S. Loans pursuant to subsection 2.1A, and (ii)
to issue (in the case of the applicable Issuing Lender) or acquire risk
participations in (in the case of all other U.S. Lenders) U.S. Letters of Credit
pursuant to subsection 2.7 in an aggregate amount, valued in Dollar Equivalents,
at no time exceeding such U.S. Lender's Pro Rata Share of the U.S. Allocation.
"U.S. Commitment Usage" means, as of any date of determination,
the aggregate outstanding principal amount of (i) the U.S. Loans that are Dollar
Loans, and (ii) the U.S. Loans that are Gold Loans (valued in Dollar Equivalents
based on the Price of Gold as of such date of determination) plus the U.S.
Letter of Credit Usage.
"U.S. Exposure" means with respect to any U.S. Lender as of any
date of determination, the U.S. Commitments of such U.S. Lender or, if the
Commitments have been terminated, the sum of (a) the aggregate outstanding
principal amount of all U.S. Loans (valued in Dollar Equivalents as of such date
of determination) of that U.S. Lender plus (b) in the event such U.S. Lender (or
a Lender in its Lending Unit) is an Issuing Lender, the aggregate Letter of
Credit Usage in respect of all U.S. Letters of Credit issued by such U.S. Lender
(or such Lender in that Lending Unit) (in each case net of any participations
purchased by other U.S. Lenders in such U.S. Letters of Credit or any
unreimbursed drawings thereunder (valued in Dollar Equivalents as of such date
of determination)) plus (c) the aggregate amount of all participations purchased
by that U.S. Lender in any outstanding U.S. Letters of Credit or any
unreimbursed drawings under any U.S. Letter of Credit (valued in Dollar
Equivalents as of such date of determination).
"U.S. Lending Office" means, in relation to any U.S.
Lender, its U.S. lending office as specified under its signature
on the signature pages hereof or such other office as is
specified by such Lender in a written notice to Administrative
44
Agent and U.S. Borrower.
"U.S. Lenders" means each of the Lenders of each Lending
Unit designated as the U.S. Lender for such Lending Unit on the
signature pages hereof or in any applicable Assignment and
Acceptance.
"U.S.Letter of Credit" or "U.S. Letters of Credit" means
Standby Letters of Credit issued, or deemed issued, by the applicable Issuing
Lender for the account of U.S. Borrower pursuant to subsection 2.7.
"U.S. Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is available
for drawing under all U.S. Letters of Credit then outstanding, plus (ii) the
aggregate amount of all drawings under all U.S. Letters of Credit honored by the
applicable Issuing Lender and not theretofore reimbursed by Borrowers.
"U.S. Loans" means Dollar Loans and/or Gold Loans made
by U.S. Lenders to U.S. Borrower pursuant to subsection 2.1A(iii).
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii) and
(xi) of subsection 5.1 shall be prepared in accordance with GAAP as in effect at
the time of such preparation. If any changes in accounting principles from those
used in the preparation of the financial statements referred to in subsection
4.4 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) result in a change in the method of
calculation of financial covenants, standards or terms found in Sections 1, 5
and 6 hereof, the parties hereto agree to enter into negotiations in order to
amend such provisions so as to
45
equitably reflect such changes with the desired result that the criteria for
evaluating Company's consolidated financial condition shall be the same after
such changes as if such changes had not been made.
1.3 Other Definitional Provisions.
References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference.
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Loans.
A. Commitments. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Company and Borrowers
herein set forth, each Lender hereby severally agrees to make the Loans
described in this subsection 2.1A that are, pursuant to the terms of this
subsection 2.1A, to be made by such Lender. The commitments of the Lenders to
make such Loans consist of the Canadian Commitments of the Canadian Lenders, the
Australian Commitments of the Australian Lenders and the U.S. Commitments of the
U.S. Lenders, such commitments being more fully described below. Initially, the
amount of each Lending Unit's Commitment, and its Pro Rata Share of the Canadian
Allocation, Australian Allocation and U.S. Allocation are set forth opposite its
name on Schedule 2.1 annexed hereto and the aggregate amount of the Commitments
of all Lending Units shall be $275,000,000. Company and Borrowers shall allocate
the aggregate amount of the Commitments to Canadian Borrower, Australian
Borrower and U.S. Borrower so that the sum of the Canadian Allocation, the
Australian Allocation and the U.S. Allocation equals the aggregate Commitments.
The initial amounts of the Canadian Allocation, the Australian Allocation and
the U.S. Allocation are set forth on Schedule 2.1. Company and Borrowers may,
effective as of the first day of each month, commencing on November 1, 1996,
change the amount of the Commitments allocated to the Canadian Allocation, the
Australian Allocation and the U.S.
46
Allocation by delivering a Notice of Allocation to Administrative Agent at least
14 days prior to date upon which such allocation is to be effective; provided
that (1) the sum of the Canadian Allocation plus the Australian Allocation plus
the U.S. Allocation shall always equal the amount of the Commitments then in
effect, (2) the Canadian Allocation may not be reduced to an amount that is less
than the outstanding Canadian Commitment Usage, (3) the Australian Allocation
may not be reduced to an amount that is less than the outstanding Australian
Commitment Usage, and (4) the U.S. Allocation may not be reduced to an amount
that is less than the outstanding U.S. Commitment Usage. Administrative Agent
shall promptly notify each Lender of any proposed change in the allocation of
the Commitments and such Lender's Pro Rata Share of the new Canadian Allocation,
Australian Allocation or U.S. Allocation, as appropriate. The aggregate amount
of the Commitments may be permanently reduced from time to time in accordance
with subsection 2.4.
(i) Canadian Borrower Loans. The Canadian Lender of each
Lending Unit severally agrees, subject to the limitations set forth
below with respect to the maximum amount of Canadian Loans permitted to
be outstanding from time to time, to lend to Canadian Borrower from
time to time during the period from the Effective Date to but excluding
the Commitment Termination Date Dollars, Canadian Dollars and/or Gold,
in an aggregate amount, when valued in Dollar Equivalents and combined
with the BA Usage of such Canadian Lender and its Pro Rata Share of the
Canadian Letter of Credit Usage, not exceeding the lesser of (a) its
Pro Rata share of the Canadian Allocation as in effect from time to
time and (b) the Commitment of its Lending Unit, to be used for the
purposes identified in subsection 2.5A.
(ii) Australian Loans. The Australian Lender of each
Lending Unit severally agrees, subject to the limitations set forth
below with respect to the maximum amount of Australian Loans permitted
to be outstanding from time to time, to lend to Australian Borrower
from time to time during the period from the Effective Date to but
excluding the Commitment Termination Date Dollars, Australian Dollars
and/or Gold, in an aggregate amount, when valued in Dollar Equivalents,
and combined with its Pro Rata Share of the Australian Letter of Credit
Usage, not
47
exceeding the lesser of (a) its Pro Rata Share of the Australian
Allocation as in effect from time to time and (b) the Commitment of its
Lending Unit, to be used for the purposes identified in subsection
2.5A.
(iii) U.S. Loans. The U.S. Lender of each Lending Unit severally
agrees, subject to the limitations set forth below with respect to the
maximum amount of U.S. Loans permitted to be outstanding from time to
time, to lend to U.S. Borrower from time to time during the period from
the Effective Date to but excluding the Commitment Termination Date
Dollars and/or Gold, in an aggregate amount, when valued in Dollar
Equivalents, and combined with its Pro Rata Share of the U.S. Letter of
Credit Usage, not exceeding the lesser of (a) its Pro Rata Share of the
U.S. Allocation as in effect from time to time and (b) the Commitment
of its Lending Unit, to be used for the purposes identified in
subsection 2.5A.
(iv) Additional Limitations on Loans. The amounts of the Canadian
Allocation, Australian Allocation and U.S. Allocation and Commitments
shall be reduced from time to time by the amount of any reductions
thereto made pursuant to subsection 2.4A. Each Lending Unit's
Commitment and the Canadian Commitment, the Australian Commitment and
U.S. Commitment of such Lending Unit's Canadian Lender, Australian
Lender and U.S. Lender, respectively, shall expire on the Commitment
Termination Date and all Loans and all other amounts owed hereunder
with respect to Loans, Bankers' Acceptances, Letters of Credit and
Commitments shall be paid in full no later than that date. Amounts
borrowed under this subsection 2.1A may be repaid and reborrowed to but
excluding the Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Loans and the Commitments shall be subject to the
following limitations:
(a) Subject to the provisions of subsection
2.4A(iii), the Total Utilization of Commitments shall not at any time
exceed the Commitments then in effect;
48
(b) Subject to the provisions of sub-
section 2.4A(iii), any Lending Unit's Pro Rata Share of the Total
Utilization of Commitments shall not at any time exceed such Lending
Unit's Commitment then in effect;
(c) Subject to the provisions of subsection
2.4A(iii), the aggregate amount of the Canadian Exposure and the
Canadian Commitments shall not, in each case, at any time exceed the
Canadian Allocation then in effect;
(d) Subject to the provisions of subsection
2.4A(iii), the aggregate amount of the U.S. Exposure and the
U.S. Commitments shall not, in each case, at any time exceed
the U.S. Allocation then in effect;
(e) Subject to the provisions of subsection
2.4A(iii), the aggregate amount of the Australian Exposure and the
Australian Commitments shall not, in each case, at any time exceed the
Australian Allocation then in effect;
(f) The amount otherwise available for borrowing
under the Commitments as of any time of determination shall
be reduced by the Total Utilization of Commitments;
(g) Canadian Borrower shall not request or borrow
Canadian Dollar Loans if, immediately after giving effect to such
borrowing, the aggregate outstanding principal amount of Canadian Loans
and the Canadian Letter of Credit Usage and the BA Usage, when valued
in Dollar Equivalents, would exceed 95% of the Canadian Allocation then
in effect;
(h) Australian Borrower shall not request or
borrow Australian Dollar Loans if, immediately after giving effect to
such borrowing, the aggregate outstanding principal amount of
Australian Loans and the Australian Letter of Credit Usage, when valued
in Dollar Equivalents, would exceed 95% of the Australian Allocation
then in effect;
(i) No Borrower shall request any Gold Loans if,
immediately after giving effect to such borrowing, the aggregate
outstanding amount of Gold Loans advanced to Borrowers would exceed
600,000 Ounces; and
49
(j) For purposes of computing compliance with the
foregoing clauses (a) through (i), any extension of credit hereunder
the proceeds of which are used on the same day to repay another
extension of credit hereunder shall not be treated as an increase in
the utilization of the Commitments on such day.
B. Borrowing Mechanics. Loans made on any Funding Date (other than
Loans made pursuant to subsection 2.7C for the purpose of reimbursing any
Issuing Lender for the amount of a drawing under a Letter of Credit issued by it
or Loans made (or deemed made) pursuant to subsection 2.8F for the purpose of
reimbursing any Canadian Lender for the Face Amount of any matured Bankers'
Acceptance) shall be in an aggregate minimum amount of (i) $5,000,000 and
integral multiples of $1,000,000 in excess of that amount, in the case of Dollar
Loans, (ii) Cdn.$5,000,000 and integral multiples of Cdn.$1,000,000 in excess of
that amount, in the case of Canadian Dollar Loans, (iii) A$5,000,000 and
integral multiples of A$1,000,000 in excess of that amount, in the case
Australian Dollar Loans, and (iv) 10,000 Ounces and integral multiples of 2,000
Ounces in excess of that amount, in the case of Gold Loans. Whenever a Borrower
desires that Lenders make Loans it shall deliver a Notice of Borrowing (i) in
the case of U.S. Base Rate Loans, to Administrative Agent no later than 11:00
A.M. (New York time) at least one Business Day in advance of the proposed
Funding Date, (ii) in the case of Eurodollar Rate Loans or Gold Loans to be made
to U.S. Borrower, to Administrative Agent no later than 11:00 A.M. (New York
time) at least three Business Days in advance of the proposed Funding Date,
(iii) in the case of Eurodollar Rate Loans or Gold Loans to be made to Canadian
Borrower, to Canadian Administrative Agent and Administrative Agent no later
than 11:00 A.M. (Toronto time) at least three Business Days in advance of the
proposed Funding Date, (iv) in the case of Eurodollar Rate Loans or Gold Loans
to be made to Australian Borrower, to Australian Administrative Agent and
Administrative Agent no later than 12:00 Noon (Sydney time) at least three
Business Days in advance of the proposed Funding Date, (v) in the case of U.S.
Base Rate (Canada) Loans and Canadian Base Rate Loans, to Canadian
Administrative Agent and Administrative Agent no later than 11:00 A.M. (Toronto
time) at least one Business Day in advance of the proposed Funding Date, and
(vi) in the case of Bank Xxxx Swap Rate Loans, to Australian
50
Administrative Agent and Administrative Agent no later than 12:00 Noon (Sydney
time) at least two Business Days in advance of the proposed Funding Date. The
Notice of Borrowing shall specify (i) the Borrower requesting the proposed
Loans, (ii) the proposed Funding Date (which shall be a Business Day), (iii)
whether such Loans will be denominated in Canadian Dollars, Australian Dollars,
Dollars or Ounces of Gold, (iv) in the case of Dollar Loans, whether such Dollar
Loans are to be U.S. Base Rate Loans, U.S. Base Rate (Canada) Loans or
Eurodollar Rate Loans, (v) in the case of Gold Loans, whether the applicable
Borrower is requesting that the amount of such Loan be converted into Dollars
(based on the Price of Gold as in effect two Business Days prior to the proposed
Funding Date) or that an amount of Gold constituting such Loan be Delivered, and
if so where, (vi) in the case of Gold Loans to be funded in Gold, whether the
applicable Borrower is requesting to pay interest during the initial Interest
Period on such Gold Loan in Dollars or in Gold, and if payable in Dollars the
basis for calculating the amount according to one of the alternatives specified
in subsection 2.2F, and (vii) in the case of Eurodollar Rate Loans, Bank Xxxx
Swap Rate Loans, or Gold Loans, the requested Interest Period. Each such Notice
of Borrowing shall also show the calculation of the Canadian Commitment Usage,
the Australian Commitment Usage, the U.S. Commitment Usage and the Total
Utilization of Commitments after giving effect to the proposed borrowing, which
calculation shall demonstrate compliance with the limitations on Loans set forth
in subsection 2.1A(iv). Loans may be continued as or converted into Loans
denominated in the same currency (or in the case of Gold Loans, Ounces of Gold)
in the manner provided in subsection 2.2D. In lieu of delivering the
above-described Notice of Borrowing, the applicable Borrower may give the
Applicable Administrative Agent and Administrative Agent telephonic notice by
the required time of any proposed borrowing under this subsection 2.1B; provided
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to the Applicable Administrative Agent and Administrative Agent on
or before the applicable Funding Date.
Neither any Agent nor any Lender shall incur any liability to
any Borrower in acting upon any telephonic notice referred to above that
Administrative Agent or the Applicable Administrative Agent believes in good
faith to have been given by a duly authorized officer or other person authorized
to borrow on
51
behalf of such Borrower or for otherwise acting in good faith under this
subsection 2.1B, and upon funding of Loans by Lenders in accordance with this
Agreement pursuant to any such telephonic notice such Borrower shall have
effected Loans hereunder to such Borrower.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Borrowing for a Eurodollar Rate Loan, a Bank Xxxx Swap Rate
Loan or a Gold Loan (or telephonic notice in lieu thereof) shall be irrevocable
when given, and the Borrower delivering such Notice of Borrowing shall be bound
to make a borrowing in accordance therewith.
C. Disbursement of Funds.
(i) Canadian Borrower Loans. All Loans requested by Canadian
Borrower under this Agreement shall be made by Canadian Lenders
simultaneously and proportionately to their respective Pro Rata Shares.
Promptly after receipt by Canadian Administrative Agent and
Administrative Agent of a Notice of Borrowing pursuant to subsection
2.1B (or telephonic notice in lieu thereof) from Canadian Borrower,
Canadian Administrative Agent shall notify each Canadian Lender of the
proposed borrowing and the details thereof. Each Canadian Lender shall
make the amount of its Loan (other than any Gold Loan to be funded in
Gold) available in the appropriate currency to Canadian Administrative
Agent, in same day funds at Canadian Administrative Agent's Lending
Office not later than 1:00 P.M. (New York time) on the applicable
Funding Date. In the case of any Gold Loan to be funded in Gold, each
Canadian Lender shall make the amount of its Gold Loan available in
Gold to Canadian Administrative Agent by Delivery of such Gold not
later than 11:00 A.M. (London time) on the applicable Funding Date to
the Administrative Agent's account with X.X. Xxxxxx, London, England,
or such other London bullion account as may be designated by Canadian
Administrative Agent from time to time by notice to Canadian Lenders
not later than three Business Days prior to the applicable Funding
Date. Upon satisfaction or waiver of the conditions precedent specified
in subsections 3.1 (in the case of the initial Loans) and 3.2 (in the
case of all Loans), Canadian Administrative Agent shall make the
proceeds of such Canadian Loans, in the
52
appropriate currency or Gold, as the case may be, available to Canadian
Borrower on the applicable Funding Date by (a) in the case of Loans in
a currency, causing an amount of same day funds equal to the proceeds
of all such Loans received by Canadian Administrative Agent from
Canadian Lenders to be credited to the account of Canadian Borrower at
Canadian Administrative Agent's Lending Office or (b) in the case of
Gold Loans, either (1) advancing the Dollar Equivalent of the Gold
Loans, which shall be calculated based on the Price of Gold as in
effect on the second Business Day preceding the applicable Funding
Date, and causing an amount of same day funds equal to such amount of
Dollars to be credited to the account of Canadian Borrower at Canadian
Administrative Agent's Lending Office or (2) effecting the Delivery of
Gold comprising such Gold Loan to a location mutually agreed upon by
Canadian Borrower and Canadian Administrative Agent and set forth in
the Notice of Borrowing.
(ii) Australian Borrower Loans. All Loans requested by
Australian Borrower under this Agreement shall be made by Australian
Lenders simultaneously and proportionately to their respective Pro Rata
Shares. Promptly after receipt by Australian Administrative Agent and
Administrative Agent of a Notice of Borrowing pursuant to subsection
2.1B (or telephonic notice in lieu thereof) from Australian Borrower,
Australian Administrative Agent shall notify each Australian Lender of
the proposed borrowing and the details thereof. Each Australian Lender
shall make the amount of its Loan (other than any Gold Loan to be
funded in Gold) available in the appropriate currency to Australian
Administrative Agent, in same day funds at Australian Administrative
Agent's Lending Office not later than 12:00 Noon (Sydney time) on the
applicable Funding Date. In the case of any Gold Loan to be funded in
Gold, each Australian Lender shall make the amount of its Gold Loan
available in Gold to Australian Administrative Agent by Delivery of
such Gold not later than 11:00 A.M. (London time) on the applicable
Funding Date to the Administrative Agent's account with X.X. Xxxxxx,
London, England, or such other London bullion account as may be
designated by Australian Administrative Agent from time to time by
notice to Australian Lenders not later than three Business Days prior
to the applicable Funding Date. Upon
53
satisfaction or waiver of the conditions precedent specified in
subsections 3.1 (in the case of the initial Loans) and 3.2 (in the case
of all Loans), Australian Administrative Agent shall make the proceeds
of such Australian Loans, in the appropriate currency or Gold, as the
case may be, available to Australian Borrower on the applicable Funding
Date by (a) in the case of Loans in a currency, causing an amount of
same day funds equal to the proceeds of all such Loans received by
Australian Administrative Agent from Australian Lenders to be credited
to the account of Australian Borrower at Australian Administrative
Agent's Lending Office or (b) in the case of Gold Loans, either (1)
advancing the Dollar Equivalent of the Gold Loans, which shall be
calculated based on the Price of Gold as in effect on the second
Business Day preceding the applicable Funding Date, and causing an
amount of same day funds equal to such amount of Dollars to be credited
to the account of Australian Borrower at Australian Administrative
Agent's Lending Office or (2) effecting the Delivery of Gold comprising
such Gold Loan to a location mutually agreed upon by Australian
Borrower and Australian Administrative Agent and set forth in the
Notice of Borrowing.
(iii) U.S. Borrower Loans. All Loans requested by U.S. Borrower
under this Agreement shall be made by U.S. Lenders simultaneously and
proportionately to their respective Pro Rata Shares. Promptly after
receipt by Administrative Agent of a Notice of Borrowing pursuant to
subsection 2.1B (or telephonic notice in lieu thereof) from U.S.
Borrower, Administrative Agent shall notify each U.S. Lender of the
proposed borrowing and the details thereof. Each U.S. Lender shall make
the amount of its Loan (other than any Gold Loan to be funded in Gold)
available in Dollars to Administrative Agent in same day funds at
Administrative Agent's Lending Office not later than 1:00 P.M. (New
York time) on the applicable Funding Date. In the case of any Gold Loan
to be funded in Gold, each U.S. Lender shall make the amount of its
Gold Loan available in Gold to Administrative Agent by Delivery of such
Gold not later than 11:00 A.M. (London time) on the applicable Funding
Date to the Administrative Agent's account with X.X. Xxxxxx, London,
England, or such other London bullion account as may be designated by
Administrative Agent by notice to U.S. Lenders
54
from time to time not later than three Business Days prior to the
applicable Funding Date. Upon satisfaction or waiver of the conditions
precedent specified in subsections 3.1 (in the case of the initial
Loans) and 3.2 (in the case of all Loans), Administrative Agent shall
make the proceeds of such Loans in Dollars or Gold, as the case may be,
available to U.S. Borrower on the applicable Funding Date by (a) in the
case of Loans in Dollars, causing an amount of same day funds equal to
the proceeds of all such Loans received by Administrative Agent from
U.S. Lenders to be credited to the U.S. Borrower Account or (b) in the
case of Gold Loans, either (1) advancing the Dollar Equivalent of such
Gold Loans, which shall be calculated based on the Price of Gold as in
effect on the second Business Day preceding the applicable Funding
Date, and causing an amount of same day funds equal to such amount of
Dollars to be credited to the U.S. Borrower Account or (2) effecting
the Delivery of Gold comprising such Gold Loans to a location mutually
agreed upon by U.S. Borrower and Administrative Agent and set forth in
the Notice of Borrowing.
(iv) Failure to Fund Loans. No Lender shall be responsible for any
default by any other Lender in that other Lender's obligation to make a
Loan requested hereunder nor shall the Commitment of any Lender to make
the particular type of Loan requested be increased or decreased as a
result of a default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder. Unless the Applicable
Administrative Agent shall have been notified by any Lender prior to
the Funding Date for any Loans to be funded by such Lender that such
Lender does not intend to make available to the Applicable
Administrative Agent the amount of such Lender's Loan requested on such
Funding Date, the Applicable Administrative Agent may assume that such
Lender has made such amount available to the Applicable Administrative
Agent on such Funding Date and the Applicable Administrative Agent may,
in its sole discretion, but shall not be obligated to, make available
to the applicable Borrower a corresponding amount on such Funding Date.
If such corresponding amount is not in fact made available to the
Applicable Administrative Agent by such Lender, the Applicable
Administrative Agent shall be entitled to recover such corresponding
amount on demand from
55
such Lender together with interest thereon, for each day from such
Funding Date until the date such amount is paid to the Applicable
Administrative Agent, at the customary rate set by the Applicable
Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Canadian Base Rate, in the case of
any Canadian Dollar Loan, the Bank Xxxx Swap Rate for a one month
Interest Period, in the case of any Australian Dollar Loans, the
Alternate Base Rate, in the case of any Dollar Loan, or the applicable
Gold Rate, in the case of any Gold Loan. If such Lender does not pay
such corresponding amount forthwith upon the Applicable Administrative
Agent's demand therefor, the Applicable Administrative Agent shall
promptly notify the applicable Borrower and such Borrower shall
immediately pay such corresponding amount to the Applicable
Administrative Agent together with interest thereon, for each day from
such Funding Date until the date such amount is paid to the Applicable
Administrative Agent, at the rate then applicable to Canadian Base Rate
Loans in the case of any Canadian Dollar Loan, the rate then applicable
to the Bank Xxxx Rate Swap Loans for a one month Interest Period in the
case of any Australian Dollar Loan, the rate then applicable to Base
Rate Loans, in the case of any Dollar Loan or the applicable Gold Rate,
in the case of any Gold Loan. In all of the foregoing instances, such
interest in respect of any Gold Loan shall be payable in Dollars and
shall be calculated daily in accordance with the provisions of
subsection 2.2F. Nothing in this subsection 2.1C shall be deemed to
relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that any Borrower may have against
any Lender as a result of any default by such Lender hereunder.
(v) Confirmation of Delivery, Risk of Loss, Delivery Charges.
Unless the Applicable Administrative Agent receives notice from the
applicable Borrower within seven Business Days of such Borrower's
receipt of any Gold, the quantity and quality of the Gold so received
shall be deemed to be as set forth in the Applicable Administrative
Agent's delivery order. If there is any discrepancy in the amount or
quality of Gold actually Delivered, the amount of such difference shall
be settled in Dollars (based on the Dollar Equivalent on the date of
Delivery of the Gold required to
56
be advanced hereunder and the Gold actually Delivered) promptly after
the Delivery thereof. Borrowers assume all risk of loss, theft or
detention of or damage to any Gold Delivered hereunder from the date
the applicable Borrower receives Delivery of such Gold until the date
of its return by Delivery to the Applicable Administrative Agent. The
applicable Borrower shall pay all costs and charges (including costs
and expenses of collection, shipment, cartage, warehousing, packaging,
refining, converting or insurance and any applicable location premiums)
directly relating to the physical Delivery of Gold pursuant to this
Agreement incurred on and after request for Delivery of Gold by such
Borrower until return of Gold by such Borrower at the required
location.
D. Note Option. If so requested by any Lender by written notice to the
applicable Borrower (with a copy to Administrative Agent), the Borrower to whom
such request is made shall execute and deliver to such Lender (within three
Business Days of such Borrower's receipt of such notice) a promissory note
substantially in the form of Exhibit IV-A to this Agreement to evidence such
Lender's Canadian Loans (other than Gold Loans), in the form of Exhibit IV-B to
this Agreement to evidence such Lender's Australian Loans (other than Gold
Loans), in the form of Exhibit IV-C to this Agreement to evidence such Lender's
U.S. Loans (other than Gold Loans), or a Grid Gold Acknowledgement in the form
of Exhibit V to this Agreement to evidence such Lender's Gold Loans.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.6 and
10.7, each Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to: (i) the Alternate Base Rate, the U.S. Base Rate
(Canada), the Eurodollar Rate or the Adjusted Eurodollar Rate in the case of any
Dollar Loan; (ii) the Canadian Base Rate in the case of any Canadian Dollar
Loan; (iii) the Bank Xxxx Swap Rate in the case of an Australian Dollar Loan; or
(iv) the Gold Rate in the case of any Gold Loan. The applicable basis for
determining the rate of interest with respect to any Dollar Loan shall be
selected by the applicable Borrower
57
initially at the time a Notice of Borrowing is given with respect to such Loan
pursuant to subsection 2.1B. The basis for determining the interest rate with
respect to any Dollar Loan may be changed from time to time pursuant to
subsection 2.2D.
Subject to the provisions of subsections 2.2E and 10.7, the
Loans shall bear interest through maturity as follows:
(i) if a U.S. Base Rate Loan, then at the Alternate
Base Rate per annum;
(ii) if a Canadian Base Rate Loan, then at the Canadian
Base Rate per annum;
(iii) if a U.S. Base Rate (Canada) Loan, then at the U.S.
Base Rate (Canada) per annum;
(iv) if a Bank Xxxx Swap Rate Loan, then at the sum of the Bank
Xxxx Swap Rate plus the Applicable Margin per annum;
(v) if a Eurodollar Rate Loan that is a U.S. Loan or an
Australian Loan, then at the sum of the Adjusted Eurodollar
Rate plus the Applicable Margin per annum;
(vi) if a Eurodollar Rate Loan that is a Canadian Loan, then at
the sum of the Eurodollar Rate plus the Applicable Margin per annum; or
(vii) if a Gold Loan, then at the Gold Rate per annum;
B. Interest Periods. In connection with each Eurodollar
Rate Loan, each Bank Xxxx Swap Rate Loan and each Gold Loan, the applicable
Borrower may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an Interest Period to be
applicable to such Loan; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan,
Bank Xxxx Swap Rate Loan, or Gold Loan shall commence on the Funding
Date of such Loan, in the case of a Loan initially made as a Eurodollar
Rate Loan, a Bank Xxxx Swap Rate Loan, or a Gold Loan, or on the date
specified in the
58
applicable Notice of Conversion/Continuation, in the case of
any Loan converted into a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to any Eurodollar Rate Loan, Bank Xxxx Swap Rate Loan, or
Gold Loan continued as such pursuant to a Notice of
Conversion/Continuation, each such successive Interest Period shall
commence on the day on which the preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, in the case of a Eurodollar
Rate Loan, if any Interest Period would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iv) any Interest Period for a Eurodollar Rate Loan that begins
on the last Business Day of a calendar 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, subject to clause (v) of this
subsection 2.2B, end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any Loan shall extend
beyond the Commitment Termination Date; and
(vi) there shall be no more than five Interest Periods relating
to Eurodollar Rate Loans outstanding at any time, there shall be no
more than five Interest Periods relating to Bank Xxxx Swap Rate Loans
outstanding at any time and there shall be no more than five Interest
Periods relating to Gold Loans outstanding at any time.
C. Interest Payments; Currencies. Subject to the
provisions of subsection 2.2E, interest on each Loan shall be payable in arrears
on and to each Interest Payment Date applicable to that Loan, upon any
prepayment of that Loan (to the extent accrued on the amount being prepaid) and
at maturity. All payments of interest shall be paid to the Applicable
Administrative Agent in accordance with the provisions of
59
subsection 2.4B.
Interest payable on any Loan denominated in a currency shall be
payable in the same currency. Interest payable on any Gold Loan shall be
payable, at Borrowers' option, in (a) Gold or (b) Dollars in amounts determined
in accordance with the provisions of 2.2F. Each Borrower shall advise
Administrative Agent and the Applicable Administrative Agent of its intention to
pay interest on Gold Loans in Gold in the applicable Notice of Borrowing or
Notice of Conversion/Continuation; provided that the Applicable Administrative
Agent shall, notwithstanding any request of any Borrower to pay such interest in
Gold, have the right to require that interest with respect to any Gold Loan be
paid in Dollars by notice given on or before the related Funding Date in the
case of the initial Interest Period, and prior to the date of continuation, in
the case of a continuation. If any Borrower fails timely to advise
Administrative Agent and the Applicable Administrative Agent of its desire to
pay accrued interest in Gold, such Borrower shall be deemed to have elected to
pay such interest in Dollars.
D. Conversion or Continuation. Subject to the provisions of subsection
2.6, (i) each of U.S. Borrower and Canadian Borrower shall have the option to
convert at any time all or any part of its outstanding Dollar Loans equal to
$5,000,000 and integral multiples of $1,000,000 in excess of that amount from
Dollar Loans bearing interest at a rate determined by reference to one basis to
Dollar Loans bearing interest at a rate determined by reference to an
alternative basis, (ii) each Borrower shall have the option, upon the expiration
of any Interest Period applicable to a Eurodollar Rate Loan, to continue all or
any portion of such Eurodollar Rate Loan equal to $5,000,000 and integral
multiples of $1,000,000 in excess of that amount as a Eurodollar Rate Loan,
(iii) Australian Borrower shall have the option, upon the expiration of any
Interest Period applicable to a Bank Xxxx Swap Rate Loan, to continue all or any
portion of such Bank Xxxx Swap Rate Loan equal to A$5,000,000 and integral
multiples of A$1,000,000 in excess of that amount as a Bank Xxxx Swap Rate Loan,
(iv) each Borrower shall have the option, upon the expiration of any Interest
Period applicable to a Gold Loan, to continue all or any portion of such Gold
Loan equal to 10,000 Ounces and integral multiples of 2,000 Ounces in excess of
that amount as a Gold Loan; provided, however, that a
60
Eurodollar Rate Loan may only be converted into a U.S. Base Rate Loan or a U.S.
Base Rate (Canada) Loan, as applicable, on the expiration date of an Interest
Period applicable thereto; provided further that, subject to the following
proviso, no Loan may be made as or converted into a U.S. Base Rate Loan or a
U.S. Base Rate (Canada) Loan during the period from December 24 of any year to
and including January 7 of the immediately succeeding year for the purpose of
investing in securities bearing interest at a rate determined by reference to
any other basis for the purpose of arbitrage or speculation; and provided still
further that no Loan may be converted into, or continued as, a Eurodollar Rate
Loan (except that Australian Borrower may continue Eurodollar Rate Loans with a
period of one month), or a Bank Xxxx Swap Rate Loan with a period in excess of
one month, or a Gold Loan at any time that a Potential Event of Default or an
Event of Default has occurred and is continuing.
The applicable Borrower shall deliver a Notice of
Conversion/Continuation (i) in the case of a conversion to a U.S. Base Rate
Loan, to Administrative Agent no later than 12:00 Noon (New York time) at least
one Business Day in advance of the proposed conversion/continuation date, (ii)
in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan
made to U.S. Borrower or a continuation of a Gold Loan made to U.S. Borrower, to
Administrative Agent, no later than 12:00 Noon (New York time) at least three
Business Days in advance of the proposed conversion/continuation date, (iii) in
the case of a conversion to, or a continuation of, a Eurodollar Rate Loan made
to Canadian Borrower or a continuation of a Gold Loan made to Canadian Borrower,
to Canadian Administrative Agent and Administrative Agent no later than 11:00
A.M. (Toronto time) at least three Business Days in advance of the proposed
conversion/continuation date, (iv) in the case of a conversion to a U.S. Base
Rate (Canada) Loan, to Canadian Administrative Agent and Administrative Agent no
later than 11:00 A.M. (Toronto time) at least one Business Day in advance of the
proposed conversion/continuation date, (v) in the case of a continuation of a
Eurodollar Rate Loan made to Australian Borrower, or a continuation of a Bank
Xxxx Swap Rate Loan or a Gold Loan made to Australian Borrower, to Australian
Administrative Agent and Administrative Agent no later than 12:00 Noon (Sydney
time) at least three Business Days in advance of the proposed
conversion/continuation date. A Notice of Conversion/
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Continuation shall specify (i) the applicable Borrower, (ii) the proposed
conversion/continuation date (which shall be a Business Day), (iii) the amount
of the Loan to be converted/continued, (iv) the nature of the proposed
conversion/continuation, (v) in the case of a conversion to or a continuation of
a Eurodollar Rate Loan or a continuation of a Bank Xxxx Swap Rate Loan or a Gold
Loan, the requested Interest Period, (vi) in the case of the continuation of a
Gold Loan, whether the Borrower is requesting to pay interest in Dollars or in
Gold, and if payable in Dollars, the basis for calculating the amount according
to one of the alternatives specified in subsection 2.2F, and (vii) in the case
of a conversion to or a continuation of a Eurodollar Rate Loan (except by
Australian Borrower) or a continuation of a Gold Loan, that no Potential Event
of Default or Event of Default has occurred and is continuing. In lieu of
delivering the above-described Notice of Conversion/Continuation, the applicable
Borrower may give Administrative Agent and the Applicable Administrative Agent
telephonic notice by the required time of any proposed conversion/continuation
under this subsection 2.2D; provided that such notice shall be promptly
confirmed in writing by delivery of a Notice of Conversion/Continuation to
Administrative Agent and the Applicable Administrative Agent on or before the
proposed conversion/continuation date.
Neither any Agent nor any Lender shall incur any liability to
any Borrower in acting upon any telephonic notice referred to above that
Administrative Agent or the Applicable Administrative Agent believes in good
faith to have been given by a duly authorized officer or other person authorized
to act on behalf of such Borrower or for otherwise acting in good faith under
this subsection 2.2D, and upon conversion or continuation of the applicable
basis for determining the interest rate with respect to any Loans in accordance
with this Agreement pursuant to any such telephonic notice, such Borrower shall
have effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Conversion/Continuation for conversion to, or continuation of
a Eurodollar Rate Loan or a continuation of a Bank Xxxx Swap Rate Loan or a Gold
Loan (or telephonic notice in lieu thereof) shall be irrevocable when given, and
the Borrower delivering such Notice of Conversion/Continuation shall be bound to
effect a conversion or continuation in accordance therewith.
62
If any Borrower fails to submit a Notice of Conversion/
Continuation with respect to any maturing Eurodollar Rate Loans or Bank Xxxx
Swap Rate Loans in accordance with the forgoing provisions of this subsection
2.2D, then upon the expiration of the Interest Period for such Eurodollar Rate
Loans or Bank Xxxx Swap Rate Loans, as applicable, such Loans shall (i) if no
Event of Default or Potential Event of Default shall have occurred and be
continuing, automatically continue as Eurodollar Rate Loans or Bank Xxxx Swap
Rate Loans, as applicable, in each case with an Interest Period of one month and
(ii) if an Event of Default or Potential Event of Default shall have occurred
and be continuing, automatically be converted into U.S. Base Rate Loans or U.S.
Base Rate (Canada) Loans, as applicable, in the case of U.S. Loans and Canadian
Loans, or continue as Eurodollar Rate Loans or Bank Xxxx Swap Rate Loans with an
Interest Period of one month in the case of Australian Loans. If any Borrower
fails to submit a Notice of Conversion/Continuation with respect to any maturing
Gold Loans in accordance with the forgoing provisions of this subsection 2.2D,
then upon the expiration of the Interest Period for such Gold Loans, such Loans
shall automatically be continued as Gold Loans having a 30-day Interest Period.
Upon the continuation (including automatic continuation) of any Loan, the
Applicable Administrative Agent shall notify Company and the applicable Borrower
of such continuation; provided, however, that the failure to give such notice
shall not limit or otherwise affect the obligations of Company or any Borrower
under this Agreement or any other Loan Document.
E. Post-Maturity Interest. Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payments
on the Loans owed hereunder not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand
at a rate which is 2% per annum in excess of the interest rate otherwise payable
under this Agreement in respect of such Loans (or in the case of any fees or
other amounts, a rate which is 2% per annum in excess of the interest rate
otherwise payable under this Agreement for U.S. Base Rate Loans); provided that,
in the case of Eurodollar Rate Loans or Gold Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is
63
effective, such Eurodollar Rate Loans or Gold Loans (in the case of Gold Loans,
by converting the outstanding amount of such Loans into Dollars based on the
Price of Gold as in effect on such expiration date) shall thereupon become U.S.
Base Rate Loans or U.S. Base Rate (Canada) Loans, as applicable, and shall
thereafter bear interest payable upon demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement at such time
for U.S. Base Rate Loans or US Base Rate (Canada) Loans, respectively, as
applicable, except that in the case of Australian Borrower, such Eurodollar Rate
Loans shall be continued, and such Gold Loans shall be converted into Eurodollar
Rate Loans, in each instance with an Interest Period of one month, and provided
further that in the case of Bank Xxxx Swap Rate Loans, such Bank Xxxx Swap Rate
Loans shall continue as Bank Xxxx Swap Rate Loans with an Interest Period of one
month. Payment or acceptance of the increased rates of interest provided for in
this subsection 2.2E is not a permitted alternative to timely payment and shall
not constitute a waiver of any Event of Default or otherwise prejudice or limit
any rights or remedies of any Agent or any Lender.
F. Computation of Interest. Interest on the Loans denominated in
currency shall be computed, in the case of Base Rate Loans and Bank Xxxx Swap
Rate Loans, on the basis of a 365- day or 366-day year, as the case may be, or
in the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each
case for the actual number of days elapsed in the period during which it
accrues, and shall be determined daily with respect to the amount of such Loans
outstanding each day during such period. Interest on each Gold Loan shall be
computed on the basis of a 360-day year and the actual number of days elapsed in
the period during which it accrues and shall be determined daily (i) in the case
of interest to be paid in Gold, with respect to the number of Ounces of Gold
outstanding under such Gold Loan on each day during such period, or (ii) in the
case of interest to be paid in Dollars, with respect to the average of the daily
values (such values being equal to the number of Ounces of such Gold Loan
multiplied by the Price of Gold) of such Gold Loan, in Dollar Equivalents
(determined daily unless the applicable Borrower requests in its Notice of
Borrowing or Notice of Conversion/Continuation that the Price of Gold be fixed
at the Price of Gold on the second Business Day prior to the related Interest
Period for the purpose of determining accrued interest
64
during the applicable Interest Period and Requisite Lenders have not objected on
or before the commencement of such Interest Period, in their sole discretion, to
use such fixed price for such purpose during such period), for each day during
such period. In computing interest on any Loan, the date of the making of such
Loan or the first day of an Interest Period applicable to such Loan or, with
respect to a Loan being converted from a Eurodollar Rate Loan, the date of
conversion of such Eurodollar Rate Loan, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Loan being converted to a Eurodollar Rate Loan,
the date of conversion to such Eurodollar Rate Loan, shall be excluded; provided
that if a Loan is repaid on the same day on which it is made, one day's interest
shall be paid on that Loan.
For the purposes of this Agreement, whenever interest is
calculated on the basis of a year of 360 days, each rate of interest determined
pursuant to such calculation expressed as an annual rate for the purposes of the
Interest Act (Canada) is equivalent to such rate as so determined multiplied by
the actual number of days in the calendar year in which the same is to be
ascertained and divided by 360.
2.3 Fees.
A. Commitment Fees. Borrowers jointly and severally agree
to pay to Administrative Agent (i) for distribution to each Canadian Lender, in
proportion to that Lender's Pro Rata Share of the Canadian Allocation,
commitment fees for the period from and after the Effective Date to and
excluding the Commitment Termination Date, equal to the quarterly average of the
daily excess of the Canadian Allocation over the Canadian Commitment Usage (in
Dollar Equivalents) multiplied by the applicable Commitment Fee Percentage per
annum, (ii) for distribution to each Australian Lender, in proportion to that
Lender's Pro Rata Share of the Australian Allocation, commitment fees for the
period from and after the Effective Date to and excluding the Commitment
Termination Date equal to the quarterly average of the daily excess of the
Australian Allocation over the Australian Commitment Usage (in Dollar
Equivalents) multiplied by the applicable Commitment Fee Percentage per annum,
and (iii) for distribution to each U.S. Lender, in proportion to that Lender's
65
Pro Rata Share of the U.S. Allocation, commitment fees for the period from and
after the Effective Date to and excluding the Commitment Termination Date, equal
to the quarterly average of the daily excess of the U.S. Allocation over the
U.S. Commitment Usage multiplied by the applicable Commitment Fee Percentage per
annum; all such commitment fees to be payable in Dollars, quarterly in arrears
on March 31, June 30, September 30 and December 31 of each year and on the
Commitment Termination Date and to be calculated on the basis of a 360-day year
and the actual number of days elapsed. Reductions in the amounts available for
borrowing under the Commitments arising from the operation of the limitations
set forth in clauses (a), (b), (c), (d), (e), (g), (h) and (i) of subsection
2.1A(iv) shall not constitute usages of Commitments for purposes of this
subsection 2.3A and shall not reduce the amount of the commitment fees that are
payable under this subsection 2.3A.
B. Other Fees. Company and Borrowers agree to pay to
Administrative Agent, Arranger and Issuing Lenders the fees agreed to, and in
the amounts and at the times, set forth in writing among Company, Borrowers,
Administrative Agent, Arranger
and Issuing Lenders.
2.4 Prepayments and Reductions in Commitments; General
Provisions Regarding Payments.
A. Prepayments; Reductions in Commitments; Cash
Collateralization of Standby Letters of Credit and Bankers'Acceptances.
(i) Voluntary Prepayments. Each Borrower may, upon not less
than one Business Day's (in the case of Base Rate Loans), two Business
Days' (in the case of Bank Xxxx Swap Rate Loans) or three Business
Days' (in the case of Eurodollar Rate Loans or Gold Loans) prior
written notice to the Applicable Administrative Agent and
Administrative Agent (which notice the Applicable Administrative Agent
will promptly transmit by telecopy, telegram, telex or telephone to
each U.S. Lender, Canadian Lender or Australian Lender, as
appropriate), at any time and from time to time prepay any Loans in
whole or in part on any Business Day (a) in an aggregate minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess of that
amount in the case
66
of Dollar Loans, (b) in an aggregate minimum amount of Cdn.$5,000,000
and integral multiples of Cdn.$1,000,000 in excess of that amount in
the case of Canadian Dollar Loans, (c) in an aggregate minimum amount
of A$5,000,000 and integral multiples of A$1,000,000 in excess of that
amount in the case of Australian Dollar Loans, or (d) in an aggregate
minimum amount of 10,000 Ounces and integral multiples of 2,000 Ounces
in excess of that amount in the case of Gold Loans; provided, however,
that if a Eurodollar Rate Loan, a Bank Xxxx Swap Rate Loan or a Gold
Loan is prepaid on a date other than the last day of the Interest
Period applicable thereto, the Borrower making such prepayment shall be
liable for any payments required by subsection 2.6D. Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall
be applied as specified in subsection 2.4A(iv).
(ii) Voluntary Reductions of Commitments. Borrowers may, upon not
less than three Business Days' prior written notice to Administrative
Agent (which notice Administrative Agent will promptly transmit by
telecopy, telegram, telex or telephone to each Lender), at any time and
from time to time terminate in whole or permanently reduce in part,
without premium or penalty, the Commitments in an amount up to the
amount by which the Commitments exceed the Total Utilization of
Commitments at the time of such proposed termination or reduction;
provided that any such partial reduction of the Commitments shall be in
an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount; and provided further that no
reduction shall reduce the Canadian Allocation to any amount that is
less than the Canadian Commitment Usage, the Australian Allocation to
any amount that is less than the Australian Commitment Usage or the
U.S. Allocation to an amount that is less than the U.S. Commitment
Usage. Borrowers' notice to Administrative Agent shall designate the
date (which shall be a Business Day) of such termination or reduction,
the amount of any partial reduction and the allocation of any reduction
among the Canadian Allocation, the Australian Allocation and the U.S.
Allocation, and such termination or reduction of the Commitments shall
be effective on the date
67
specified in Borrowers' notice and shall reduce the Commitment of each
Lending Unit proportionately to its Pro Rata Share.
(iii) Mandatory Prepayments of Loans.
(a) If on any date (A) the sum of (1) the outstanding
amount of all Loans denominated in currency (valued in Dollar
Equivalents as of the later of the Applicable Monthly
Determination Date or the date of the making of such Loans),
(2) the BA Usage plus the Canadian Letter of Credit Usage
(valued in Dollar Equivalents as of the later of the Applicable
Monthly Determination Date or the date of issuance or drawing,
as applicable), (3) the Australian Letter of Credit Usage
(valued in Dollar Equivalents as of the later of the Applicable
Monthly Determination Date or the date of issuance or drawing,
as applicable), (4) the U.S. Letter of Credit Usage and (5) the
outstanding amount of all Gold Loans (valued in Dollar
Equivalents based upon the Price of Gold as of such date) (such
sum being the "Aggregate Dollar Equivalent Loan Amount")
exceeds the Commitments in effect on such date, (B) the portion
of the Aggregate Dollar Equivalent Loan Amount relating to the
Canadian Borrower exceeds the Canadian Allocation, (C) the
portion of the Aggregate Dollar Equivalent Loan Amount relating
to the Australian Borrower exceeds the Australian Allocation,
or (D) the portion of the Aggregate Dollar Equivalent Loan
Amount relating to the U.S. Borrower exceeds the U.S.
Allocation, then, subject to the provisions of the immediately
succeeding sentence, Borrowers shall prepay Loans and/or reduce
the outstanding BA Usage, Canadian Letter of Credit Usage,
Australian Letter of Credit Usage, or U.S. Letter of Credit
Usage (it being agreed and understood that, for the purposes of
this subsection 2.4A(iii), BA Usage, Canadian Letter of Credit
Usage, Australian Letter of Credit Usage and U.S. Letter of
Credit Usage shall be reduced to the extent that the applicable
Borrower has cash collateralized its reimbursement obligations
under outstanding Bankers' Acceptances or Letters of Credit
pursuant to arrangements satisfactory to Administrative Agent
and the applicable Issuing Lender) in an amount
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equal to any such excess; provided that if any such excess
exists, and to the extent that any such excess results from an
average net increase of less than 50% in the outstanding amount
of all Gold Loans (valued in Dollar Equivalents based upon the
Price of Gold as of such date) since the second Business Day
prior to the related Gold Advance Dates for such Gold Loans
because of changes in the Price of Gold, until the Total
Utilization of Commitments equals 150% of the Commitments,
Borrowers shall not be so required to prepay Loans and/or
reduce the outstanding BA Usage, Canadian Letter of Credit
Usage, Australian Letter of Credit Usage or U.S. Letter of
Credit Usage to such extent. Notwithstanding the foregoing,
Borrowers shall not be required to prepay the Gold Loans if
Borrowers pledge cash, U.S. Treasury securities or Gold as
collateral to Administrative Agent for the benefit of the
Lenders in an amount equal to the amount of Gold Loans that
would otherwise be required to be prepaid in accordance with
this subsection 2.4A(iii) pursuant to arrangements in form and
substance satisfactory to Administrative Agent. Any such
mandatory prepayments shall be applied as specified in
subsection 2.4A(iv)(c).
(b) Borrowers shall also prepay the Loans as required
pursuant to subsection 10.25 upon the occurrence of a Company
Change of Control.
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments. Any
voluntary prepayments by Borrowers pursuant to
subsection 2.4A(i) shall be applied to the Loans of each
Borrower as specified by Borrowers;
(b) Application of Mandatory Prepayments. Any
mandatory prepayments by Borrowers pursuant to
subsection 2.4A(iii)(b) shall be applied to repay
outstanding Loans and to reduce permanently the
Commitments (allocated ratably to the Canadian
Allocation, the Australian Allocation and the U.S.
Allocation unless otherwise specified by Borrowers); and
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(c) Application of Prepayments to Base Rate Loans,
Bank Xxxx Swap Rate Loans and Eurodollar Rate Loans. Any
prepayment by or for the benefit of a Borrower shall be applied
first to Base Rate Loans of such Borrower to the full extent
thereof before application to Bank Xxxx Swap Rate Loans and
Eurodollar Rate Loans of such Borrower, in each case in a
manner which minimizes the amount of any payments required to
be made by the applicable Borrower pursuant to subsection 2.6D.
B. General Provisions Regarding Payments.
(i) Manner and Time of Payment. Borrowers shall make all
payments in respect of any Loan denominated in any currency in the same
currency, and shall make all payments in respect of Gold Loans in
Dollars or, if a Borrower so elects and, with respect to interest, the
Applicable Administrative Agent does not require payment in Dollars,
Gold. If Borrowers do not deliver to the Applicable Administrative
Agent at least two Business Days' prior written notice of their
intention to repay a Gold Loan in Gold, Borrowers shall be deemed to
have elected to repay such Loan in Dollars. If the principal amount of
any Gold Loan is to be repaid in Dollars, the corresponding amount of
Dollars to be repaid shall equal the Dollar Equivalent of the amount of
Gold constituting such Gold Loan determined as of the second Business
Day preceding the repayment date.
(a) Currency Payments by U.S. Borrower. All currency
payments by U.S. Borrower of principal and interest in respect
of (1) Dollar Loans, (2) Gold Loans to be repaid in Dollars,
(3) Letters of Credit, and (4) fees and other Obligations
hereunder and under any Notes or Grid Gold Acknowledgements
shall be made in Dollars, in same day funds and without
defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than
12:00 Noon (New York time) on the date due at Administrative
Agent's Lending Office to the U.S.
Borrower Account.
(b) Currency Payments by Canadian Borrower. All
currency payments by Canadian Borrower of principal and
70
interest in respect of (1) Loans (other than Gold Loans to be
repaid in Gold), (2) Letters of Credit, (3) Bankers'
Acceptances, and (4) any other fees and Obligations hereunder
and under any Notes or Grid Gold Acknowledgements shall be made
in the same currency as incurred, in same day funds and without
defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Canadian Administrative Agent not
later than 12:00 Noon (Toronto time) on the date due at
Canadian Administrative Agent's Lending Office.
(c) Currency Payments by Australian Borrower. All
currency payments by Australian Borrower of principal and
interest in respect of (1) Loans (other than Gold Loans to
be repaid in Gold), (2) Letters of Credit, and (3) any other
fees and Obligations hereunder and under any Notes or Grid
Gold Acknowledgements shall be made in the same currency as
incurred, in same day funds and without defense, setoff or
counterclaim, free of any restriction or condition, and
delivered to Australian Administrative Agent not later than
12:00 Noon (Sydney time) on the date due at Australian
Administrative Agent's Lending Office.
(d) Gold Payments. All payments of Gold shall be made
by Delivery of such Gold by the applicable Borrower to the
Administrative Agent's account with X.X. Xxxxxx, London,
England, or such other bullion depository as may be designated
by the Applicable Administrative Agent from time to time,
before 12:00 Noon (London time) on the day specified for
payment.
Funds or Gold received by the Applicable Administrative Agent or
Administrative Agent after the times specified above on the due dates
specified above shall be deemed to have been paid by Borrowers on the
next succeeding Business Day.
(ii) Application of Payments to Principal and Interest. All
payments in respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments shall
71
be applied to the payment of interest before application to
principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments shall be apportioned among all outstanding Loans to which such
payments relate, in each case proportionately to each Lending Unit's
respective Pro Rata Share of such Loans. Subject to the last sentence
of subsection 2.7D, the Applicable Administrative Agent or
Administrative Agent, as the case may be, shall promptly distribute to
each Lender, at its Lending Office or at such other address as such
Lender may request, its proportionate share of all such payments
received by the Applicable Administrative Agent (or any Issuing Lender)
or Administrative Agent, as the case may be, and the commitment fees of
such Lender when received by the Applicable Administrative Agent or
Administrative Agent, as the case may be, pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4B(iii),
if, pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if
any Affected Lender makes U.S. Base Rate Loans in lieu of its Pro Rata
Share of any Eurodollar Rate Loans, the Applicable Administrative Agent
or Administrative Agent, as the case may be, shall give effect thereto
in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business
Day, such payment shall be made on the next succeeding Business Day,
but not later than the Commitment Termination Date, and such extension
of time shall be included in the computation of the payment of interest
hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note or Grid Gold Acknowledgement held by it, or any
part thereof (other than by granting participations therein), that
Lender will make a notation thereon of all Loans evidenced by that Note
or Grid Gold Acknowledgement and all principal payments previously made
thereon and of the date to which interest thereon has been
72
paid; provided that the failure to make (or any error in the making of)
a notation of any Loan made under such Note or Grid Gold
Acknowledgement shall not limit, increase or otherwise affect the
obligations of any Borrower hereunder or under such Note or Grid Gold
Acknowledgement with respect to any Loan or any payments of principal
or interest on such Note or Grid Gold Acknowledgement.
2.5 Use of Proceeds.
A. Loans. The proceeds of the Loans shall be used by
Borrowers to replace the Existing Credit Agreement, to provide for the working
capital requirements of Borrowers and their respective Subsidiaries, to provide
for general corporate purposes and to pay fees and expenses related to the
transactions contemplated hereby.
B. Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by any Borrower, Company or any of
its Subsidiaries in any manner that might cause the borrowing or the application
of such proceeds to violate Regulation G, Regulation T, Regulation U or
Regulation X of the Board or any other regulation of the Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans, Bank
Xxxx Swap Rate Loans and Gold Loans.
Notwithstanding any other provision of this Agreement to the
contrary, the provisions set forth in this subsection 2.6 shall govern with
respect to Eurodollar Rate Loans, Bank Xxxx Swap Rate Loans and Gold Loans as to
the matters covered.
A. Determination of Eurodollar Rate, Bank Xxxx Swap Rate
and Gold Rate.
(i) Eurodollar Rate Loans. As soon as practicable after 10:00
A.M. (New York time) on any Interest Rate Determination Date with
respect to any Eurodollar Rate Loan, Administrative Agent shall
determine (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) the interest rate that shall
apply
73
to such Eurodollar Rate Loan for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to the
applicable Borrower and each applicable Lender.
(ii) Gold Loans. As soon as practicable after 10:00 A.M. (New
York time) on the Interest Rate Determination Date with respect to any
Gold Loan, Administrative Agent shall determine (which determination
shall, absent manifest error, be final, conclusive and binding upon all
parties) the interest rate that shall apply to such Gold Loan for which
an interest rate is then being determined for the applicable Interest
Period, and Administrative Agent shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to the applicable
Borrower and each applicable Lender.
(iii) Bank Xxxx Swap Rate Loans. As soon as practicable after 11:00
A.M. (Sydney time) on any proposed Funding Date or proposed
continuation date, as applicable, with respect to any Bank Xxxx Swap
Rate Loan, Australian Administrative Agent shall determine (which
determination shall, absent manifest error, be final, conclusive and
binding on all parties) the interest rate that shall apply to such Bank
Xxxx Swap Rate Loan for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to Australian
Borrower and each applicable Lender.
B. Inability to Determine Applicable Interest Rate. If the
Applicable Administrative Agent shall have determined (which determination shall
be final and conclusive and binding upon all parties hereto) on any Interest
Rate Determination Date that by reason of circumstances affecting the London
interbank market or because no Reference Lender is able to provide its quotation
of a rate, in the case of Eurodollar Rate Loans, or affecting the international
precious metals markets or because no Gold Rate Reference Lender is able to
provide its quotation of a rate, in the case of Gold Loans, adequate and fair
means do not exist for ascertaining the interest rate applicable to such Loans,
the Applicable Administrative Agent shall on such date give notice
74
(by telecopy or by telephone confirmed in writing) to Borrowers and each Lender
of such determination, whereupon (i) no Loans may be made as, or continued or
converted to, Eurodollar Rate Loans or made or continued as Gold Loans until
such time as the Applicable Administrative Agent notifies Borrowers and Lenders
that the circumstances giving rise to such notice no longer exist, and (ii) any
Notice of Borrowing or Notice of Conversion/ Continuation given by any Borrower
with respect to the Loans in respect of which such determination was made shall
be deemed to be rescinded by such Borrower.
C. Illegality or Impracticability of Eurodollar Rate Loans, Bank Xxxx
Swap Rate Loans or Gold Loans. If on any date any Lender shall have determined
(which determination shall be final and conclusive and binding upon all parties
hereto but shall be made only after consultation with Administrative Agent) that
the making, maintaining or continuation of its Eurodollar Rate Loans, Bank Xxxx
Swap Rate Loans or Gold Loans, as the case may be, (i) has become unlawful as a
result of compliance by such Lender with any law, treaty, governmental rule,
regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful) or (ii) has
become impracticable, or would cause such Lender material hardship, as a result
of contingencies occurring after the date of this Agreement which materially and
adversely affect the London interbank market (in the case of Eurodollar Rate
Loans), the international precious metals markets (in the case of Gold Loans),
the bills of exchange market (in the case of Bank Xxxx Swap Rate Loans) or the
position of such Lender in any such market, then, and in any such event, such
Lender shall be an "Affected Lender" and it shall on that day give notice (by
telecopy or by telephone confirmed in writing) to Borrowers and Administrative
Agent of such determination (which notice Administrative Agent shall promptly
transmit to each other Lender). Thereafter, (a) the obligation of the Affected
Lender to make Loans as, or to convert Loans to or continue Loans as, Eurodollar
Rate Loans, Bank Xxxx Swap Rate Loans or Gold Loans, as the case may be, shall
be suspended until such notice shall be withdrawn by the Affected Lender, (b) to
the extent such determination by the Affected Lender relates to a Eurodollar
Rate Loan, a Bank Xxxx Swap Rate Loan or a Gold Loan then being requested by a
Borrower pursuant to a Notice of Borrowing or a
75
Notice of Conversion/Continuation, the Affected Lender shall make such Loan as
(or convert such Loan to, as the case may be) (i) a U.S. Base Rate Loan if the
Borrower is the U.S. Borrower, (ii) a U.S. Base Rate (Canada) Loan if the
Borrower is Canadian Borrower, and (iii) if the Borrower is the Australian
Borrower, at the election of the Australian Borrower made within one Business
Day of receipt of notice from the Affected Lender, a Bank Xxxx Swap Rate Loan
with a period of one month (if that option is available) or a Loan in Dollars
bearing interest at the Australian Administrative Agent's cost of funds as
reasonably determined by Administrative Agent, plus the Applicable Margin (such
Loan bearing interest at the Bank Xxxx Swap Rate if no timely election is made),
(c) the Affected Lender's obligation to maintain its outstanding Eurodollar Rate
Loans, Bank Xxxx Swap Rate Loans or Gold Loans, as the case may be (the
"Affected Loans"), shall be terminated at the earlier to occur of the expiration
of the Interest Period then in effect with respect to the Affected Loans or if
earlier when required by law, and (d) the Affected Loans shall automatically
convert on the date of such termination to (i) a U.S. Base Rate Loan if the
Borrower is the U.S. Borrower, (ii) a U.S. Base Rate (Canada) Loan if the
Borrower is Canadian Borrower, and (iii) if the Borrower is the Australian
Borrower, at the election of the Australian Borrower made within one Business
Day of receipt of notice from the Affected Lender, a Bank Xxxx Swap Rate Loan
with a period of one month (if that option is available) or a Loan in Dollars
bearing interest at the Alternate Base Rate (such Loan bearing interest at the
Alternate Base Rate if no timely election is made). Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan, a Bank Xxxx Swap Rate Loan or a Gold
Loan then being requested by any Borrower pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, such Borrower shall have the option, subject
to the provisions of subsection 2.6D, to rescind such Notice of Borrowing or
Notice of Conversion/Continuation as to all Lenders by giving notice (by
telecopy or by telephone confirmed in writing) to Administrative Agent and the
Applicable Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above (which
notice of rescission the Applicable Administrative Agent shall promptly transmit
to each other applicable Lender). Except as provided in the immediately
preceding sentence, nothing in this subsection 2.6C shall affect the obligation
of any Lender
76
other than an Affected Lender to make or maintain Loans as, or to convert or
continue Loans as, Eurodollar Rate Loans, Bank Xxxx Swap Rate Loans or Gold
Loans in accordance with the terms of this Agreement. Borrowers shall have the
right upon 20 days' notice to each Lender and upon consent by the Applicable
Administrative Agents, which consent shall not be unreasonably withheld, and so
long as no Potential Event of Default or Event of Default shall have occurred,
to substitute Eligible Assignees for the Affected Lender and any Lender that
belongs to the Affected Lender's Lending Unit hereunder; provided such
substitute Lenders, taken together, will constitute a Lending Unit. If Borrowers
select such substituted Lenders, the Affected Lender, and any other Lender
belonging to the Affected Lender's Lending Unit, shall assign their Notes, Grid
Gold Acknowledgements and rights under this Agreement to such substitute Lenders
in accordance with subsection 10.1B (but without the payment of any recordation
fee) for the amount due on prepayment pursuant to subsection 2.4(A)(i) together
with any amounts that may be due pursuant to subsection 2.6D.
D. Compensation For Breakage or Non-Commencement of Interest Periods.
Any Borrower having borrowed, or having delivered a Notice of Borrowing or a
Notice of Conversion/ Continuation to request to borrow, convert or continue,
any Eurodollar Rate Loan, Bank Xxxx Swap Rate Loan or Gold Loan shall compensate
each Lender, upon written request by that Lender (which request shall set forth
the basis for requesting such amounts), for all reasonable losses, expenses and
liabilities (including, without limitation, any interest paid by that Lender to
lenders of funds (or Gold in the case of Gold Loans) borrowed by it to make or
carry its Eurodollar Rate Loans, Bank Xxxx Swap Rate Loans or Gold Loans, as the
case may be) (including loss of anticipated profits) sustained by that Lender in
connection with the liquidation or re-employment of such funds (or Gold), which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) the borrowing of the Eurodollar Rate Loan, Bank Xxxx Swap Rate Loan or
Gold Loan requested by such Borrower does not occur on a date specified therefor
in such Notice of Borrowing or a telephonic request for borrowing, or the
conversion to or continuation requested by such Borrower of any Eurodollar Rate
Loan, Bank Xxxx Swap Rate Loan or Gold Loan does not occur on a date specified
therefor in a Notice of Conversion/ Continuation or a telephonic request for
conversion or
77
continuation, (ii) if any prepayment or conversion of any Eurodollar Rate Loans,
Bank Xxxx Swap Rate Loans or Gold Loans made to such Borrower by such Lender
occurs on a date that is not the last day of an Interest Period applicable to
that Loan, (iii) if any prepayment of any such Eurodollar Rate Loans, Bank Xxxx
Swap Rate Loans or Gold Loans is not made on any date specified in a notice of
prepayment given by such Borrower, or (iv) as a consequence of any other default
by such Borrower to repay its Eurodollar Rate Loans, Bank Xxxx Swap Rate Loans
or Gold Loans when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Subject to the
provisions of subsection 10.8, any Lender may make, carry or transfer Eurodollar
Rate Loans at, to, or for the account of any of its branch offices or the office
of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 10.7A shall be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to the definition of Eurodollar
Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a
maturity comparable to the relevant Interest Period and through the transfer of
such Eurodollar deposit from an offshore office of that Lender to a domestic
office of that Lender in the United States of America, Canada or Australia;
provided, however, that each Lender may fund each of its Eurodollar Rate Loans
in any manner it sees fit and the foregoing assumptions shall be utilized only
for the purposes of calculating amounts payable under this subsection 2.6 and
under subsection 10.7A.
G. Eurodollar Rate Loans, Bank Xxxx Swap Rate Loans and Gold Loans
After Default. Except as provided in subsection 2.2D, after the occurrence of
and during the continuation of a Potential Event of Default or an Event of
Default, (i) Borrowers may not elect to have a Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan, Bank Xxxx Swap Rate Loan or Gold Loan
after the expiration of any Interest Period then in effect for that Loan and
(ii) subject to the provisions of subsection 2.6D, any Notice of Borrowing or
Notice of Conversion/
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Continuation given by a Borrower with respect to a requested borrowing or
conversion/continuation that has not yet occurred shall be deemed to be
rescinded by such Borrower.
2.7 Letters of Credit
A. Letters of Credit. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company and
Borrowers set forth herein, each Borrower may request, in accordance with the
provisions of this subsection 2.7A, that on and after the Effective Date the
applicable Issuing Lender issue Letters of Credit for the account of such
Borrower denominated in (i) Dollars (in the case of U.S. Borrower), (ii)
Canadian Dollars or Dollars (in the case of Canadian Borrower) or (iii)
Australian Dollars or Dollars (in the case of Australian Borrower). Such Letters
of Credit shall be issued solely for the purpose of supporting the obligations
of Borrowers and their respective Subsidiaries. Issuances of Letters of Credit
shall be subject to the following limitations:
(i) No Borrower shall request any Letter of Credit if, after
giving effect to such issuance, (a) the Total Utilization of
Commitments would exceed the Commitments, (b) the Canadian Commitment
Usage would exceed the Canadian Allocation, (c) the Australian
Commitment Usage would exceed the Australian Allocation, (d) the U.S.
Commitment Usage would exceed the U.S. Allocation, (e) the Letter of
Credit Usage would exceed $60,000,000 or (f) any Lending Unit's Pro
Rata Share of the Total Utilization of Commitments after giving effect
to such issuance would exceed such Lending Unit's Commitment then in
effect; and
(ii) In no event shall any Issuing Lender issue, reissue, amend
or permit the extension of: (x) any Letter of Credit having an
expiration date (including after giving effect to any extension) later
than the Commitment Termination Date in effect at the time of issuance,
reissuance, amendment or extension (automatic or otherwise) thereof;
(y) subject to the foregoing clause (x), any Letter of Credit having an
expiration date more than one year after its date of issuance; provided
that subject to the foregoing clause (x), this clause (y) shall not
prevent such Issuing Lender from agreeing that a Letter of Credit will
79
automatically be extended annually for a period not to exceed one year
if such Issuing Lender does not cancel such extension.
It shall be a condition precedent to the issuance of any Letter of
Credit in accordance with the provisions of this subsection 2.7 that each
condition set forth in subsection 3.3 shall have been satisfied.
Immediately upon the issuance of each Letter of Credit, each Canadian
Lender, in the case of any Letter of Credit issued for the account of Canadian
Borrower, each Australian Lender, in the case of any Letter of Credit issued for
the account of Australian Borrower, or each U.S. Lender, in the case of any
Letter of Credit issued for the account of U.S. Borrower, shall be deemed to,
and hereby agrees to, have irrevocably purchased from the applicable Issuing
Lender an undivided and continuing participation in such Letter of Credit and
drawings thereunder in an amount equal to such Lender's Pro Rata Share of the
maximum amount which is or at any time may become available to be drawn
thereunder.
The applicable Issuing Lender may upon the occurrence of an Event of
Default and the acceleration of the maturity of the Loans, provide for the
deposit of funds in an account to secure payment to the beneficiary and any
funds so deposited shall be paid to the beneficiary of the Letter of Credit if
conditions to such payment are satisfied or returned to the applicable Issuing
Lender for distribution to Lenders (or, if all Obligations shall have been
indefeasibly paid in full, to the applicable Borrower) if no payment to the
beneficiary has been made and 30 days after the final date available for
drawings under the Letter of Credit has passed. Each payment or deposit of funds
by the applicable Issuing Lender as provided in this paragraph shall be treated
for all purposes of this Agreement as a drawing duly honored by the applicable
Issuing Lender under the related Letter of Credit.
B. Notice of Issuance. Whenever Canadian Borrower desires
the issuance of a Letter of Credit, it shall deliver to Canadian
Administrative Agent and Administrative Agent a Notice of
Issuance of Letter of Credit in the form of Exhibit XI hereto no
later than 1:00 P.M. (Toronto time) at least five Business Days
or such shorter period as may be agreed to by the applicable
80
Issuing Lender in any particular instance, in advance of the proposed date of
issuance. Whenever Australian Borrower desires the issuance of a Letter of
Credit, it shall deliver to Australian Administrative Agent and Administrative
Agent a Notice of Issuance of Letter of Credit in the form of Exhibit XI hereto
no later than 1:00 P.M. (Sydney time) at least five Business Days or such
shorter period as may be agreed to by the applicable Issuing Lender in any
particular instance, in advance of the proposed date of issuance. Whenever U.S.
Borrower desires the issuance of a Letter of Credit, it shall deliver to Admin-
istrative Agent a Notice of Issuance of Letter of Credit in the form of Exhibit
XI hereto no later than 1:00 P.M. (New York time) at least five Business Days or
such shorter period as may be agreed to by the applicable Issuing Lender in any
particular instance, in advance of the proposed date of issuance. Each Notice of
Issuance of Letter of Credit shall specify (i) the Borrower, (ii) the proposed
date of issuance (which shall be a Business Day), (iii) the face amount of the
Letter of Credit, (iv) the expiration date of the Letter of Credit, (v) the name
and address of the beneficiary, (vi) a summary of the purpose and the verbatim
text of such Letter of Credit, and (vii) a precise description of the documents
and the proposed text of any certificate to be presented by the beneficiary
which, if presented by the beneficiary prior to the expiration date of the
Letter of Credit, would require the applicable Issuing Lender to make payment
under the Letter of Credit; provided that the applicable Issuing Lender, in its
sole reasonable judgment, may require changes in any such documents and
certificates; and provided further that no Letter of Credit shall require
payment against a conforming draft to be made thereunder on the same Business
Day that such draft is presented if such presentation is made after 11:00 A.M.
(New York time, Toronto time or Sydney time, as applicable,) on such Business
Day. Promptly upon the issuance of a Letter of Credit, the applicable Issuing
Lender shall notify the applicable Lenders of the applicable Borrower of such
issuance and the details thereof. In determining whether to pay under any Letter
of Credit, the applicable Issuing Lender shall be responsible only to determine
that the documents and certificates required to be delivered under that Letter
of Credit have been delivered and that they comply on their face with the
requirements of that Letter of Credit.
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C. Payment of Amounts Drawn Under Letters of Credit. In
the event of any drawing under any Letter of Credit by the beneficiary
thereof, the applicable Issuing Lender shall promptly notify the Borrower for
whose account such Letter of Credit was issued, and such Borrower shall
reimburse the applicable Issuing Lender on the date on which such drawing is
honored in the same currency as the drawing in an amount in same day funds equal
to the amount of such drawing; provided that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless such Borrower shall have
notified the Applicable Administrative Agent prior to 11:00 A.M. (New York
Toronto or Sydney time, as applicable,) on the Business Day immediately prior to
the date of such drawing that such Borrower intends to reimburse the applicable
Issuing Lender for the amount of such drawing with funds other than the proceeds
of Loans, such Borrower shall be deemed to have (1) in the case of Canadian
Borrower, given a Notice of Borrowing to Canadian Administrative Agent and
Administrative Agent requesting Canadian Lenders to make Canadian Loans (which
shall be U.S. Base Rate (Canada) Loans or Canadian Base Rate Loans denominated
in the same currency as the drawing) to the extent of the unused Canadian
Allocation on the date on which such drawing is honored in an amount equal to
the amount of such drawing or, (2) in the case of Australian Borrower, given a
Notice of Borrowing to Australian Administrative Agent and Administrative Agent
requesting Australian Lenders to make Australian Loans (which shall be Bank Xxxx
Swap Rate Loans or Eurodollar Rate Loans (with a one month interest period) to
the extent of the unused Australian Allocation on the date on which such drawing
is honored in an amount equal to the amount of such drawing and (3) in the case
of U.S. Borrower, given a Notice of Borrowing to Administrative Agent requesting
U.S. Lenders to make U.S. Loans (which shall be U.S. Base Rate Loans) to the
extent of the unused U.S. Allocation on the date on which such drawing is
honored in an amount equal to the amount of such drawing, and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 3.2, such
Lenders shall, on the date of such drawing, make such Loans in the aggregate
amount of such drawing, the proceeds of which shall be applied directly by the
Applicable Administrative Agent to reimburse the applicable Issuing Lender for
the amount of such drawing; and provided further that, if Loans are required to
be made and for any reason proceeds of Loans are not received by the applicable
Issuing Lender on such date in an amount equal to the amount of such
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drawing, the applicable Borrower shall reimburse the applicable Issuing Lender,
on the Business Day immediately following the date of such drawing, in an amount
in same day funds (and in the same currency as the unreimbursed drawing) equal
to the excess of the amount of such drawing over the amount of such Loans which
are so received, plus accrued interest on such amount at the rate set forth in
subsection 2.7E(ii).
D. Payment by Lenders with Respect to Letters of Credit. If any
Borrower shall fail to reimburse the applicable Issuing Lender as provided in
subsection 2.7C in an amount equal to the amount of any drawing honored by the
applicable Issuing Lender under a Letter of Credit issued by the applicable
Issuing Lender for the account of such Borrower, the applicable Issuing Lender
shall promptly notify the Applicable Administrative Agent and the Applicable
Administrative Agent shall promptly notify Administrative Agent and each
applicable Lender of the unreimbursed amount of such drawing, the currency in
which such drawing was funded, and of such Lender's respective participation
therein, which participation shall be equal to such Lender's Pro Rata Share of
the unreimbursed amount of such drawing. Each applicable Lender shall make
available to the applicable Issuing Lender an amount equal to its respective
participation in same day funds and in the same currency as the drawing, at the
office of the applicable Issuing Lender specified in such notice, not later than
1:00 P.M. (New York, Toronto or Sydney time, as applicable) on the day such
notice is given to such Lender by the Applicable Administrative Agent. If any
applicable Lender fails to make available to the applicable Issuing Lender the
amount of such Lender's participation in such Letter of Credit as provided in
this subsection 2.7D, the applicable Issuing Lender shall be entitled to recover
such amount on demand from such Lender together with interest at the customary
rate set by the applicable Issuing Lender for the correction of errors among
banks for three Business Days and thereafter at the Canadian Base Rate, in the
case of Canadian Dollar drawings, the Bank Xxxx Swap Rate for a one month
Interest Period in the case of Australian Dollar drawings or the Alternate Base
Rate, in the case of Dollar drawings by U.S. Borrower and Australian Borrower,
and U.S. Base Rate (Canada) in the case of Dollar drawings by Canadian Borrower.
Nothing in this subsection 2.7 shall be deemed to prejudice the right of any
Lender to recover from the applicable Issuing Lender any amounts made available
by such Lender to the
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applicable Issuing Lender pursuant to this subsection 2.7D if the payment with
respect to a Letter of Credit by the applicable Issuing Lender in respect of
which payment was made by such Lender constituted gross negligence or willful
misconduct on the part of the applicable Issuing Lender, as finally determined
by a court of competent jurisdiction. The applicable Issuing Lender shall
distribute to the Applicable Administrative Agent for distribution to each other
Lender which has paid all amounts payable by it under this subsection 2.7D with
respect to any Letter of Credit issued by the applicable Issuing Lender such
other Lender's Pro Rata Share of all payments received by the applicable Issuing
Lender from any Borrower in reimbursement of drawings honored by the applicable
Issuing Lender under such Letter of Credit when such payments are received.
Notwithstanding anything to the contrary herein, each Lender that has paid all
amounts payable by it under this subsection 2.7D shall have a direct right to
reimbursement of such amounts from the applicable Borrower, subject to the
procedures for reimbursing Lenders set forth in this subsection 2.7.
E. Compensation. Each Borrower agrees to pay, without
duplication, the following amounts to the applicable Issuing Lender with
respect to each Letter of Credit issued by the applicable Issuing Lender for the
account of such Borrower:
(i) with respect to each Letter of Credit, a letter of credit
fee payable to the applicable Issuing Lender equal to applicable Letter
of Credit Fee Percentage of the maximum amount available from time to
time to be drawn under such Letter of Credit, calculated on the basis
of a 360-day year, in the case of Letters of Credit issued for the
account of U.S. Borrower or Australian Borrower, or a 365 or 366-day
year (as applicable) in the case of Letters of Credit issued for the
account of Canadian Borrower, and, in each case, the actual number of
days elapsed and payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year in immediately available
funds and in the same currency as the Letter of Credit;
(ii) with respect to drawings made under any Letter of Credit,
interest, payable on demand in immediately available funds and in the
same currency as the drawing, on the amount paid by the applicable
Issuing Lender in respect of each
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such drawing from the date of the drawing through the date such amount
is reimbursed by the applicable Borrower (but only if not reimbursed
when due) at a rate which is 2% per annum in excess of the rate of
interest otherwise payable under this Agreement for Canadian Base Rate
Loans, in the case of any Canadian Dollar drawings, the Bank Xxxx Swap
Rate for a one month Interest Period, in the case of Australian Dollar
drawings or U.S. Base Rate Loans, in the case of any Dollar drawings by
U.S. Borrower and Australian Borrower, or U.S. Base Rate (Canada) Loans
in the case of any Dollar drawings by Canadian Borrower; and
(iii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each drawing made thereunder, documentary and
processing charges in accordance with the applicable Issuing Lender's
standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or drawing, as the case may be, or as
otherwise agreed by Issuing Lender, Company and Borrowers.
Promptly upon receipt by the applicable Issuing Lender of any amount
described in subdivision (i) or (ii) of this subsection 2.7E, the applicable
Issuing Lender shall distribute to the Applicable Administrative Agent for
distribution to each Canadian Lender, Australian Lender or U.S. Lender, as the
case may be, its Pro Rata Share of such amount.
F. Obligations Absolute. The obligation of each Borrower
to reimburse any Issuing Lender for drawings made under the Letters of Credit
issued for such Borrower's account and the obligations of Lenders under
subsection 2.7D shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other right
the applicable Borrower may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any persons or entities for
whom any such
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transferee may be acting), any Issuing Lender, any Agent, any Lender or
any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction
(including any underlying transaction between such Borrower or any of
its Subsidiaries and the beneficiary for which the Letter of Credit was
procured);
(iii) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in
any respect;
(iv) payment by any Issuing Lender against a demand, draft or
certificate or other document which does not comply with the terms of
such Letter of Credit unless such Issuing Lender failed to exercise
reasonable care in ascertaining whether such document appeared on its
face to comply in all material respects with such terms;
(v) any other circumstance or happening whatsoever,
which is similar to any of the foregoing; or
(vi) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing.
G. Additional Payments. If by reason of (a) any change in
applicable law, regulation, rule, decree or regulatory requirement or any change
in the interpretation or application by any judicial or regulatory authority of
any law, regulation, rule, decree or regulatory requirement or (b) compliance by
any Issuing Lender or any Lender with any direction, request or requirement
(whether or not having the force of law) of any governmental or monetary
authority including, without limitation, Regulation D:
(i) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Letters of Credit
issued by any Issuing Lender or participations therein purchased by any
Lender; or
(ii) there shall be imposed on any Issuing Lender or any Lender
any other condition regarding this subsection 2.7, any Letter of Credit
or any participation therein;
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and the result of the foregoing is to directly or indirectly increase the cost
to any Issuing Lender or any Lender of issuing, making or maintaining any Letter
of Credit or of purchasing or maintaining any participation therein, or to
reduce the amount receivable in respect thereof by any Issuing Lender or any
Lender, then and in any such case such Issuing Lender or such Lender may notify
the Borrower for whose account such Letter of Credit was issued and such
Borrower shall pay within ten days of receipt of notice such amounts as such
Issuing Lender or such Lender may specify pursuant to the certificate described
below to be necessary to compensate such Issuing Lender or such Lender for such
additional cost or reduced receipt, together with interest on such amount from
the date of such demand until payment in full thereof at a rate equal at all
times to the Alternate Base Rate per annum. The determination by any Issuing
Lender or any Lender, as the case may be, of any amount due pursuant to this
subsection 2.7G as set forth in a certificate setting forth the calculation
thereof in reasonable detail, shall, in the absence of manifest error, be final
and conclusive and binding on all of the parties hereto.
H. Indemnification; Nature of Issuing Lender's Duties. In
addition to amounts payable as elsewhere provided in this subsection 2.7, each
Borrower hereby agrees to protect, indemnify, pay and save each Issuing Lender
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) which
such Issuing Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit for the account of such
Borrower, or (ii) the failure of any Issuing Lender to honor a drawing under any
such Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "Government
Acts").
As between any Issuing Lender and any Borrower for whose account any
Issuing Lender issues any Letter of Credit, such Borrower assumes all risks of
the acts and omissions of or misuse of any such Letter of Credit by the
beneficiary of any such Letter of Credit. In furtherance and not in limitation
of the foregoing, no Issuing Lender shall be responsible: (i) for the form,
validity, sufficiency, accuracy, genuineness or legal
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effect of any document submitted by any party in connection with the application
for and issuance of such Letters of Credit, even if it should in fact prove to
be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) for failure of the
beneficiary of any such Letter of Credit to comply fully with the conditions
required in order to draw upon such Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(v) for errors in interpretation of technical terms; (vi) for any loss or delay
in the transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (vii) for
the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of any Issuing Lender,
including, without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of any Issuing Lender's rights or powers
hereunder.
In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Lender under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith and without gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction, shall not put such Issuing Lender under any resulting liability to
any Borrower or Company.
Notwithstanding anything to the contrary contained in this subsection
2.7, no Borrower shall have any obligation to indemnify any Issuing Lender in
respect of any liability incurred by such Issuing Lender arising out of the
gross negligence or willful misconduct of such Issuing Lender, as finally
determined by a court of competent jurisdiction, or out of the wrongful dishonor
by such Issuing Lender of proper demand for payment made under the Letters of
Credit issued by it; provided that payment against a draft or demand presented
after the expiration date of
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any Letter of Credit shall be deemed to constitute gross negligence.
I. Computation of Interest. Interest payable pursuant to subsection 2.7
shall be computed on the basis of a 360-day year and the actual number of days
elapsed in the period during which it accrues. For the purposes of this
subsection 2.7I, whenever interest is calculated on the basis of a year of 360
days, each rate of interest determined pursuant to such calculation expressed as
an annual rate for the purposes of the Interest Act (Canada) is equivalent to
such rate as so determined multiplied by the actual number of days in the
calendar year in which the same is to be ascertained and divided by 360.
2.8 Bankers' Acceptances.
A. Bankers' Acceptance Commitment. Canadian Borrower may request
pursuant to this subsection 2.8, from time to time during the period from the
Effective Date to but excluding the Commitment Termination Date, that each
Canadian Lender create Bankers' Acceptances by accepting Drafts from Canadian
Borrower in an aggregate amount not exceeding such Canadian Lender's Pro Rata
Share of the aggregate Face Amount of the Bankers' Acceptances to be created on
any Drawing Date; provided that Canadian Borrower shall not request the creation
of any Bankers' Acceptance if, after giving effect thereto, (a) the Total
Utilization of Commitments would exceed the Commitments then in effect, or (b)
the Canadian Commitment Usage would exceed the Canadian Allocation then in
effect, and no Canadian Lender shall have any obligation to create any Bankers'
Acceptance if, after giving effect thereto, (a) the Total Utilization of
Commitments of its Lending Unit would exceed such Lending Unit's Commitment, or
(b) its Canadian Commitment Usage would exceed its Canadian Commitment or its
Pro Rata Share of the Canadian Allocation. Each Canadian Lender shall also
purchase Bankers' Acceptances created by it as more particularly specified in
this subsection 2.8.
The aggregate Face Amount of the Bankers' Acceptances to be
created on any Drawing Date shall be not less than Cdn. $5,000,000 and shall be
in integral multiples of Cdn.$1,000,000 in excess thereof. If apportionment of
Bankers' Acceptances among the Canadian Lenders cannot be made on a ratable
basis in
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even multiples of Cdn.$100,000, Canadian Administrative Agent shall round the
allocations among Canadian Lenders up or down to the nearest Cdn.$100,000.
B. Drawing Notice.
Bankers' Acceptances shall be created on two Business Days'
prior written notice given not later than 11:00 A.M. (Toronto time), by Canadian
Borrower to Canadian Administrative Agent, which shall give each Canadian Lender
prompt notice thereof and of such Canadian Lender's ratable portion of the
aggregate Face Amount of the Drafts to be accepted (and purchased) by such
Canadian Lender. Each such notice (a "Drawing Notice") shall be in substantially
the form of Exhibit III-B annexed hereto or by telephone confirmed promptly in
writing, containing the same information as would be contained in a Drawing
Notice, and shall specify therein (i) the Drawing Date; (ii) the aggregate Face
Amount of Drafts to be accepted (and purchased); and (iii) the maturity date for
such Drafts (it being agreed and understood that Canadian Borrower shall not
request a maturity date for Drafts which would be subsequent to the Commitment
Termination Date).
Neither Canadian Administrative Agent nor any Canadian Lender
shall incur any liability to Company or any Borrower in acting on any telephonic
notice referred to above that Canadian Administrative Agent or such Canadian
Lender believes in good faith to have been given by a duly authorized officer or
other person authorized to borrow on behalf of Canadian Borrower or for
otherwise acting in good faith under this subsection 2.8, and upon the creation
and purchase of Bankers' Acceptances pursuant to any such telephonic notice,
Canadian Borrower shall be liable with respect thereto as provided herein.
Each Drawing Notice shall be irrevocable and binding on
Canadian Borrower. Canadian Borrower shall indemnify each Canadian Lender
against any loss or expense incurred by such Canadian Lender as a result of any
failure by Canadian Borrower to fulfill or honor before the applicable Drawing
Date the applicable conditions set forth in this subsection 2.8 or subsection
3.4 if as a result of such failure, the requested Bankers' Acceptances are not
created and/or purchased on such Drawing Date.
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C. Form of Bankers' Acceptances.
Each Draft presented by Canadian Borrower shall (i) be an
integral multiple of Cdn.$100,000; (ii) be dated the date of acceptance thereof
by the applicable Canadian Lender; (iii) mature and be payable by Canadian
Borrower on a Business Day which occurs 30, 60, 90, 120 or 180 days after the
date thereof; (iv) be substantially in the form of Exhibit III-A annexed hereto;
and (iv) be otherwise consistent with the provisions of this Agreement relating
to the amounts and maturity dates thereof. The acceptance endorsed by a Canadian
Lender on any Draft shall be substantially in the form of the endorsement set
forth in Exhibit III-A annexed hereto or such other form as may be agreed by
Canadian Borrower and such Canadian Lender.
Canadian Borrower hereby renounces, and shall not claim, any
days of grace for the payment of any Bankers' Acceptances.
D. Acceptance and Purchase of Drafts.
Not later than 11:00 A.M. (Toronto time) on an applicable
Drawing Date, each Canadian Lender shall complete Drafts, dated such Drawing
Date, with the maturity date and denominations specified in the applicable
Drawing Notice, and following fulfillment of any applicable conditions and as
specified in the applicable Drawing Notice, shall accept such Drafts and
purchase the Bankers' Acceptances thereby created for the applicable Bankers'
Acceptance Purchase Price.
Canadian Borrower hereby authorizes each Canadian Lender to
deduct from the amount to be remitted by it to the Canadian Administrative Agent
in respect of the Bankers' Acceptance Purchase Price or other purchase price of
any Bankers' Acceptance created by it the BA Fee in respect of such Bankers'
Acceptance.
The failure of any Canadian Lender to create and purchase or
deliver Bankers' Acceptances shall not relieve such Canadian Lender of its
obligation, if any, to create and purchase or deliver Bankers' Acceptances
hereunder, but a Canadian Lender shall not be responsible for the failure of any
other Canadian Lender to create and purchase or deliver Bankers' Acceptances on
any Drawing Date.
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E. Payment of the Banker's Acceptance Purchase Price and
Other Purchase Price.
Subject to subsection 2.8B and satisfaction of the conditions
set forth in subsection 3.4, each Canadian Lender shall, (i) before 12:00 noon
(Toronto time) on the applicable Drawing Date in the case of the Bankers'
Acceptance Purchase Price for each Bankers' Acceptance purchased by it or (ii)
upon receipt by it on the applicable Drawing Date of the purchase price payable
by a third party in respect of any Bankers' Acceptance created by it and
purchased by such third party, pay or cause to be paid such amount by depositing
or causing to be deposited such amount (less the applicable BA Fee as aforesaid)
to such account maintained by Canadian Administrative Agent as shall have been
notified to such Canadian Lender by Canadian Administrative Agent, in Canadian
Dollars in same day funds. Promptly upon receipt of such funds, Canadian
Administrative Agent shall make such funds available to Canadian Borrower by
debiting such account (or causing such account to be debited), and (a) by
crediting Canadian Borrower's account, as specified by Canadian Borrower in
writing to Canadian Administrative Agent prior thereto, maintained with Canadian
Administrative Agent (or causing such account to be credited) with like funds in
the aggregate amount of such funds or (b) by wiring such funds in such amount to
the account of Canadian Borrower with another financial institution specified
prior thereto by Canadian Borrower in writing to Canadian Administrative Agent.
Bankers' Acceptances purchased by a Canadian Lender hereunder
may be held by it for its own account until maturity or sold by it at any time
prior thereto in any relevant market therefor in Canada, in such Canadian
Lender's sole discretion.
F. Payment at Maturity.
Canadian Borrower shall pay to the applicable Canadian Lender,
and there shall become due and payable, at 12:00 noon (Toronto time) on the
maturity date for each Bankers' Acceptance, an amount in Canadian Dollars in
same day funds equal to the Face Amount of such Bankers' Acceptance. The
obligation of Canadian Borrower to make such payment shall not be prejudiced by
the fact that the holder of any such Bankers' Acceptance is the Canadian Lender
that accepted such Bankers' Acceptance.
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If Canadian Borrower fails to pay to the applicable Canadian
Lender the Face Amount of any Bankers' Acceptance as required by the preceding
paragraph, Canadian Borrower shall be deemed to have given a Notice of Borrowing
to Canadian Administrative Agent and Administrative Agent requesting such
Canadian Lender to make a Canadian Base Rate Loan on the date that such payment
is due and payable, and thereupon such Canadian Lender shall, as of such date,
make such Canadian Base Rate Loan to Canadian Borrower, the proceeds of which
shall be applied directly to reimburse such Canadian Lender for the Face Amount
of such Bankers' Acceptance paid by it. Canadian Administrative Agent will give
to Canadian Borrower notice of any such action promptly after any such action;
provided, however, that the failure to give such notice shall not limit or
otherwise affect the obligations of Company or any Borrower under this Agreement
or any other Loan Document.
Bankers' Acceptances may not be prepaid.
G. Presigned Draft Forms.
To enable Canadian Lenders to complete Drafts and create and
purchase Bankers' Acceptances in the manner specified in this subsection 2.8,
Canadian Borrower shall supply each Canadian Lender with such number of Drafts
as such Canadian Lender may reasonably request, duly endorsed and executed on
behalf of Canadian Borrower. Each Canadian Lender shall exercise such care in
the custody and safekeeping of Drafts as it would exercise in the custody and
safekeeping of similar property owned by it. Each Canadian Lender will, upon
request by Canadian Borrower, promptly advise Canadian Borrower of the number
and designations, if any, of the Drafts then held by it. The signatures of any
officers of Canadian Borrower may be mechanically reproduced in facsimile, and
Drafts and Bankers' Acceptances bearing such facsimile signatures shall be
binding upon 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 Bankers' Acceptance as one of such officers
may no longer hold office at the date thereof or at the date of its acceptance
by a Canadian Lender hereunder or at any time thereafter, any Draft or Bankers'
Acceptance so signed shall be valid and binding upon Canadian Borrower.
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H. Circumstances Making Bankers' Acceptances Unavailable.
If Canadian Administrative Agent determines in good faith,
which determination shall be final, conclusive and binding upon Canadian
Borrower, and notifies Canadian Borrower and each Canadian Lender that, by
reason of circumstances affecting the money market (i) there is no market for
Bankers' Acceptances; or (ii) the demand for Bankers' Acceptances is
insufficient to allow the sale or trading of the Bankers' Acceptances created
and purchased hereunder; then:
(a) the right of Canadian Borrower to request that Bankers'
Acceptances be created hereunder shall be suspended until Canadian
Administrative Agent determines that the circumstances causing such
suspension no longer exist and Canadian Administrative Agent so
notifies the Canadian Borrower; and
(b) any Drawing Notice which is outstanding shall be
cancelled and the Bankers' Acceptances requested therein
shall not be created.
I. Use of Proceeds of Bankers' Acceptances.
The proceeds of any Bankers' Acceptance created under this
subsection 2.8 shall be used by Canadian Borrower for working capital purposes
and general corporate purposes.
Section 3. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND LOANS,
LETTERS OF CREDIT AND BANKERS' ACCEPTANCES
3.1 Conditions to Effectiveness.
The effectiveness of this Agreement is subject to the prior or
concurrent satisfaction of the following conditions:
A. Company Documents. On or before the Effective Date,
Company shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its
counsel) the following, each, unless otherwise noted, dated the
Effective Date:
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(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of State
of the States of Delaware and California, each dated a recent date
prior to the Effective Date;
(ii) Copies of its Bylaws, certified as of the Effective
Date by its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement
and any other Loan Documents to which it is a party, certified as of
the Effective Date by its corporate secretary or an assistant secretary
as being in full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of its
officers executing this Agreement and any other Loan
Documents to which it is a party;
(v) Executed originals of this Agreement and any other
Loan Documents to which it is a party; and
(vi) Such other documents as any Lender through Administrative
Agent may reasonably request.
B. Canadian Borrower Documents. On or before the Effective
Date, Canadian Borrower shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated the Effective Date:
(i) Certified or notarial copies of Canadian Borrower's
Certificate of Incorporation, together with evidence of its corporate
status in the Provinces of Ontario and British Columbia, each dated a
recent date prior to the Effective Date;
(ii) Copies of Canadian Borrower's Bylaws, certified as
of the Effective Date by its corporate secretary or an
assistant secretary;
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(iii) Resolutions of Canadian Borrower's Board of Directors
approving and authorizing the execution, delivery and performance of
this Agreement and any other Loan Documents to which it is a party,
certified as of the Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of Canadian Borrower's
officers executing this Agreement and any other Loan Documents to which
it is a party;
(v) Executed originals of this Agreement, any Notes and any
Grid Gold Acknowledgements requested by Lenders and any other Loan
Documents to which Canadian Borrower is a party; and
(vi) Such other documents as any Lender through Administrative
Agent may reasonably request.
C. Australian Borrower Documents. On or before the
Effective Date, Australian Borrower shall deliver or cause to be delivered to
Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its counsel) the
following, each, unless otherwise noted, dated the Effective Date:
(i) Certified copies of Australian Borrower's
Certificate of Incorporation and Articles of Association,
each dated a recent date prior to the Effective Date;
(ii) Resolutions of Australian Borrower's Board of Directors
approving and authorizing the execution, delivery and performance of
this Agreement and any other Loan Documents to which it is a party,
certified as of the Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
(iii) Signature and incumbency certificates of Australian
Borrower's officers executing this Agreement and any other Loan
Documents to which it is a party;
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(iv) Executed originals of this Agreement, any Notes and any Grid
Gold Acknowledgements requested by Lenders and any other Loan Documents
to which Australian Borrower is a party; and
(v) Such other documents as any Lender through
Administrative Agent may reasonably request.
D. U.S. Borrower Documents. On or before the Effective
Date, U.S. Borrower shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated the Effective Date:
(i) Certified copies of U.S. Borrower's Articles of
Incorporation, together with good standing certificates from the
Secretary of State of the States of California, Nevada and South
Dakota, each dated a recent date prior to the Effective Date;
(ii) Copies of U.S. Borrower's Bylaws, certified as of
the Effective Date by its corporate secretary or an
assistant secretary;
(iii) Resolutions of U.S. Borrower's Board of Directors approving
and authorizing the execution, delivery and performance of this
Agreement and any other Loan Documents to which it is a party,
certified as of the Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of U.S.
Borrower's officers executing this Agreement and any other
Loan Documents to which it is a party;
(v) Executed originals of this Agreement, any Notes and
any Grid Gold Acknowledgements requested by Lenders and any
other Loan Documents to which U.S. Borrower is a party; and
(vi) Such other documents as any Lender through Administrative
Agent may reasonably request.
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E. Opinions of Company's and Borrowers' Counsel. Administrative Agent
on behalf of Lenders, with sufficient originally executed copies for each
Lender, shall have received (i) originally executed copies of one or more
favorable written opinions of (a) Thelen, Marrin, Xxxxxxx & Xxxxxxx, counsel for
Company and U.S. Borrower, and (b) Xxxxx Xxxx, Vice President and General
Counsel of Company and U.S. Borrower, each in form and substance reasonably
satisfactory to Administrative Agent and its counsel, each dated as of the
Effective Date and setting forth substantially the matters in the opinions
designated in Exhibits VII-A and VII-B, respectively, annexed hereto and as to
such other matters as Administrative Agent may reasonably request, (ii)
originally executed copies of one or more favorable written opinions of Osler,
Xxxxxx & Harcourt, counsel for Canadian Borrower, in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of the
Effective Date and setting forth substantially the matters designated in Exhibit
VIII-A annexed hereto and as to such other matters as Administrative Agent may
reasonably request, and (iii) originally executed copies of one or more
favorable written opinions of Xxxxxx & Xxxxxx, counsel for Australian Borrower,
in form and substance reasonably satisfactory to Administrative Agent and its
counsel, dated as of the Effective Date and setting forth substantially the
matters designated in Exhibit VIII-B annexed hereto and as to such other matters
as Administrative Agent may reasonably request.
F. Opinions of Administrative Agent's Counsel. Administrative Agent on
behalf of Lenders, with sufficient originally executed copies for each Lender,
shall have received originally executed copies of one or more favorable written
opinions of O'Melveny & Xxxxx, counsel to Administrative Agent, dated as of the
Effective Date, substantially in the form of Exhibit IX annexed hereto and as to
such other matters as Administrative Agent may reasonably request.
G. Fees. Company shall have paid to Administrative Agent
for distribution (as appropriate) to Administrative Agent,
Arranger and Lenders the fees payable on the Effective Date
referred to in subsection 2.3.
H. No Material Adverse Effect; New Disclosures. Since
December 31, 1995, there shall not have occurred any change, or
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development or event involving a prospective change, which in either case, in
the opinion of Lenders has had or could have a Material Adverse Effect, and
Administrative Agent and Documentation Agent shall not have become aware of any
previously undisclosed information that is material and adverse with respect to
(i) the business, assets, operations, condition (financial or otherwise) or
prospects of Company, Company and its Subsidiaries taken as a whole, or any
Borrower, or (ii) Company's or any Borrower's ability to perform, or the ability
of Lenders to enforce, any of the Obligations.
I. Representations and Warranties; Performance of Agreements. Company
and each Borrower shall have delivered to Administrative Agent an Officers'
Certificate, in form and substance satisfactory to Administrative Agent, to the
effect that the representations and warranties in Section 4 hereof are true,
correct and complete in all material respects on and as of the Effective Date to
the same extent as though made on and as of that date and that Company and each
Borrower has performed in all material respects all agreements and satisfied all
conditions which each Loan Document provides shall be performed or satisfied by
it on or before the Effective Date except as otherwise disclosed to and agreed
to in writing by Administrative Agent and Requisite Lenders.
J. No Disruption of Financial and Capital Markets or Price of Gold.
There shall have been no material adverse change since July 31, 1996 to the
syndication markets for credit facilities similar in nature to the credit
facilities provided herein, and there shall not have occurred and be continuing
a material disruption of or material adverse change in financial, banking or
capital markets that would have an adverse effect on such syndication market, in
each case as determined by Administrative Agent and Arranger in their reasonable
discretion. Additionally, there shall have been no material adverse change in
the price of gold prevailing in international markets that would have a Material
Adverse Effect.
K. Company's Consolidated Net Worth. Administrative Agent
shall have received evidence satisfactory to it that Company's
Consolidated Net Worth is not less than $500,000,000.
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L. Completion of Proceedings. All corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Administrative
Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in
form and substance to Administrative Agent and its counsel, and Administrative
Agent and its counsel shall have received all such counterpart originals or
certified copies of such documents as they may reasonably request.
M. Delivery of Form 10-K and Form 10-Q. Administrative
Agent shall have received the Company's Report on Form 10-K for 1995 and the
Company's most recently filed Report on Form 10-Q.
N. Termination of the Existing Credit Agreement.
Administrative Agent shall have received evidence satisfactory to it that the
Existing Credit Agreement and all commitments thereunder shall have been
terminated and all outstanding obligations thereunder repaid in full.
O. Delivery of Compliance Certificate. Company shall have
delivered to Administrative Agent a Compliance Certificate demonstrating in
reasonable detail compliance during and at the end of Company's most recent
fiscal quarter with the restrictions contained in subsections 6.1, 6.2, 6.3,
6.4, 6.6 and 6.7;
P. Other Documents. Each of Company, Canadian Borrower,
Australian Borrower and U.S. Borrower shall have delivered to Administrative
Agent such other documents as any Lender through Administrative Agent may
reasonably request.
3.2 Conditions to All Loans.
The obligations of Lenders to make Loans on each Funding Date
are subject to the following further conditions precedent:
A. The Applicable Administrative Agent and Administrative Agent shall
have received before that Funding Date, in accordance with the provisions of
subsection 2.1B, an originally executed Notice of Borrowing signed by the chief
executive officer, the chief financial officer or the treasurer of the
applicable Borrower, or by any executive officer of the applicable Borrower
designated by any of the above-described officers on behalf of
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the applicable Borrower, in a writing delivered to the Applicable Administrative
Agent and Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except to the extent that changes
in the facts and conditions on which such representations and
warranties are based are required or permitted under this Agreement;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such
Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;
(iii) Company and each Borrower shall have performed in all
material respects all agreements and satisfied all conditions which
this Agreement and the other Loan Documents provide shall be performed
or satisfied by it on or before that Funding Date;
(iv) There shall not be pending or, to the knowledge of Company
or any Borrower, threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries, and
there shall have occurred no development in any such action, suit,
proceeding, governmental investigation or arbitration, that, in either
event, in the opinion of Requisite Lenders, would reasonably be
expected to have a Material Adverse Effect, unless disclosed to and
consented to by Requisite Lenders; and no injunction or other
restraining order shall have been issued and no hearing to cause an
injunction or other restraining order to be issued shall be pending or
noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated
by this Agreement or the making of Loans, the issuance of Letters of
Credit or the
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creation and purchase of Bankers' Acceptances hereunder; and
(v) No Company Change of Control shall have occurred.
3.3 Conditions to All Letters of Credit.
The obligation of any Issuing Lender to issue any Letter of
Credit hereunder is subject to prior or concurrent satisfaction of all of the
following conditions:
A. On or before the date of issuance of any Letter of Credit hereunder,
the applicable Issuing Lender shall have received, in accordance with the
provisions of subsection 2.7B, a Notice of Issuance of Letter of Credit relating
to the proposed Letter of Credit, all other information specified in subsection
2.7B and such other documents as the applicable Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
B. On or before the date of issuance of such Letter of Credit, each of
the conditions set forth in subsection 3.1 shall have been satisfied as of the
Effective Date, and, on such date of issuance, all conditions precedent
described in subsection 3.2B shall be satisfied to the same extent as though the
issuance of such Letter of Credit were the making of a Loan and the date of
issuance of such Letter of Credit were a Funding Date.
3.4 Conditions to All Bankers' Acceptances.
The creation of any Bankers' Acceptance hereunder is subject to
the following conditions precedent:
A. On or before the date of the creation of any Bankers' Acceptance,
Canadian Administrative Agent shall have received, in accordance with the
provisions of subsection 2.8, an originally executed Drawing Notice, signed by
any executive officer or vice president of Canadian Borrower.
B. On the date of the creation of any Bankers' Acceptance, each of the
conditions set forth in subsection 3.1 shall have been satisfied as of the
Effective Date, and, on such date of creation, all conditions precedent
described in subsection 3.2B shall be satisfied to the same extent as if the
creation of such
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Bankers' Acceptance were the making of a Loan and the Drawing Date were a
Funding Date.
Section 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit, to induce
Lenders to purchase participations in Letters of Credit, and to induce Canadian
Lenders to create and purchase Bankers' Acceptances, Company and each Borrower
jointly and severally represent and warrant to each Lender that the following
statements are true, correct and complete:
4.1 Organization, Powers, Qualification, Good Standing, Business
and Subsidiaries.
A. Organization and Powers. Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Canadian Borrower is a corporation duly organized and validly existing under the
laws of the Province of Ontario. U.S. Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State of California.
Australian Borrower is a corporation duly organized and validly existing under
the laws of South Australia. Each of Company and each Borrower has all requisite
corporate power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter into the
Loan Documents to which it is a party, to carry out the transactions
contemplated thereby and to issue and pay any Notes and any Grid Gold
Acknowledgements to be issued by it.
B. Qualification and Good Standing. Each of Company and each of its
Subsidiaries is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except in jurisdictions where the failure to be so
qualified or in good standing has not had and will not have a Material Adverse
Effect.
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C. Conduct of Business. Company and its Subsidiaries are
engaged only in the businesses permitted to be engaged in pursuant to subsection
6.10.
D. Subsidiaries. All of the Subsidiaries of Company as of the Effective
Date (other than Joint Ventures that do not have an interest in any of the
currently producing mines in the Mining Group) are identified in Schedule 4.1
annexed hereto. The capital stock of each of the Material Subsidiaries of
Company that is a corporation identified in Schedule 4.1 annexed hereto is duly
authorized, validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. Each of the Material Subsidiaries of
Company identified in Schedule 4.1 annexed hereto that is a corporation is
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation set forth therein, has full corporate power and
authority to own its assets and properties and to operate its business as
presently owned and conducted, and is qualified to do business and in good
standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, in each case except where
failure to be so qualified or in good standing or a lack of such corporate power
and authority has not had and will not have a Material Adverse Effect. Schedule
4.1 annexed hereto correctly sets forth the ownership interest of Company in
each of its Subsidiaries identified therein.
4.2 Authorization of Borrowing and Guaranty, etc.
A. Authorization of Borrowing and Guaranty. The execution, delivery and
performance of this Agreement and any other Loan Documents and the issuance,
delivery and payment of the Notes and the Grid Gold Acknowledgements have been
duly authorized by all necessary corporate action on the part of Company and
each Borrower, as the case may be.
B. No Conflict. The execution, delivery and performance by
Company and Borrowers of this Agreement and any other Loan Documents, the
issuance, delivery and payment of the Notes or any Grid Gold Acknowledgments by
Borrowers, the issuance and sale of the Subordinated Debentures by Company and
the incurrence and repayment of extensions of credit pursuant to the Loan
Documents have not, do not and will not (i) violate any provision of any
104
law or any governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws or other
charter documents of Company or any of its Subsidiaries or any order, judgment
or decree of any court or other agency of government binding on Company or any
of its Subsidiaries, (ii) conflict with, result in a material breach of or
constitute (with due notice or lapse of time or both) a material default under
any Contractual Obligation of Company or any of its Subsidiaries, (iii) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of Company or any of its Subsidiaries (other than any Liens created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders of Company or any of its
Subsidiaries or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, except for consents obtained
on or before the Effective Date and disclosed in writing to Lenders.
C. Governmental Consents. The execution, delivery and
performance by Company and each Borrower, as the case may be, of the Loan
Documents, the issuance, delivery and payment of the Notes and Grid Gold
Acknowledgements and the consummation of the transactions contemplated by the
Loan Documents do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.
D. Binding Obligation. This Agreement and each other Loan
Document has been duly executed and delivered by Company and each Borrower, and
each Note and each Grid Gold Acknowledgement delivered to any Lender has been
duly issued by the applicable Borrower, and each such Loan Document is the
legally valid and binding obligation of Company and each Borrower, as the case
may be, enforceable against Company and each Borrower, as the case may be, in
accordance with its respective terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
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4.3 Valid Issuance of Stock and Subordinated Debentures.
The Company Common Stock is duly and validly issued, fully paid
and nonassessable. Except for rights under Company's Stockholders Rights
Agreement dated as of October 16, 1987, as amended, and holders of employee
stock options and holders of delayed delivery agreements of Canadian Borrower or
the Convertible Debentures, no stockholder of Company has or will have any
preemptive rights to subscribe for any additional equity Securities of Company.
The Company Common Stock, when issued and sold, was either registered or
qualified under applicable federal and state securities laws or exempt
therefrom. The Subordinated Debentures have been duly authorized and validly
issued by Company and constitute the legally valid and binding obligations of
Company enforceable against Company in accordance with their terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability. The Subordinated Debentures, when issued and sold,
were either registered or qualified under applicable federal and state
securities laws or exempt therefrom. The subordination provisions of the
Subordinated Debentures are enforceable against the holders of the Subordinated
Debentures. The Obligations constitute "Senior Debt" under the indenture
pursuant to which the Subordinated Debentures have been issued.
4.4 Financial Condition.
Company has heretofore delivered to Lenders, at Lenders'
request, the following financial statements and information: (i) the audited
consolidated balance sheet of Company and its Subsidiaries as at December 31,
1995 and the related consolidated statements of income, stockholders' equity and
cash flows of Company and its Subsidiaries for the Fiscal Year then ended, and
(ii) the unaudited consolidated and consolidating balance sheets of Company and
its Subsidiaries as at June 30, 1996 and the related unaudited consolidated and
consolidating statements of income and the unaudited consolidated statement of
cash flows of Company and its Subsidiaries for the six months then ended. All
such statements were prepared in conformity with GAAP and fairly present the
financial position (on a consolidated basis) of the entities described in such
financial statements as at the respective dates thereof and the results of
operations and cash
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flows (on a consolidated basis) of the entities described therein for each of
the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments.
Except as disclosed in Schedule 4.4 annexed hereto, Company does not have any
Contingent Obligation, or liability for any taxes, long-term lease or unusual
forward or long-term financial commitment that is not reflected in the most
recent financial statements delivered to Lenders or the notes thereto, if any,
or otherwise permitted under subsection 6.4 and which in any such case is
material in relation to the business, operations, properties, assets or
condition (financial or otherwise) of Company and its Subsidiaries, taken as a
whole.
4.5 No Material Adverse Effect; No Restricted Junior Payments.
Since December 31, 1995, no event or change has occurred that
has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect. Neither Company nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 6.5.
4.6 Title to Properties; Liens.
Company and its Subsidiaries have good, sufficient and legal
title, subject to Permitted Encumbrances, to all of their respective properties
and assets reflected in the most recent financial statements delivered to
Lenders, except for (a) assets held in Joint Ventures where the operator or
another participant or the Joint Venture may hold legal title but Company or one
of its Subsidiaries holds a beneficial ownership interest therein, (b) assets
disposed of since the date of such financial statements in the ordinary course
of business, (c) as otherwise permitted under subsection 6.7, and (d) such
defects that have not had, or would not reasonably be expected to result in, a
Material Adverse Effect. Except for Permitted Encumbrances and except as
otherwise permitted by this Agreement, all such properties and assets are free
and clear of Liens.
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4.7 Litigation; Adverse Facts.
Except as described in Schedule 4.7 annexed hereto or in the
Company's Annual Report on Form 10-K for 1995, there is no action, suit,
proceeding, arbitration or governmental investigation (whether or not
purportedly on behalf of Company or any of its Subsidiaries) at law or in equity
or before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
pending or, to the knowledge of Company, threatened against or affecting Company
or any of its Subsidiaries or any property of Company or any of its Subsidiaries
(i) that has had, or would reasonably be expected to result in, a Material
Adverse Effect or (ii) that seeks to enjoin or otherwise challenge any of the
transactions contemplated by this Agreement or the enforceability of this
Agreement. Neither Company nor any of its Subsidiaries is (i) in violation of
any applicable law that has had, or would reasonably be expected to result in, a
Material Adverse Effect, or (ii) subject to or in default with respect to any
final judgment, writ, injunction, decree, rule or regulation of any court or any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, that has had, or would
reasonably be expected to result in, a Material Adverse Effect.
4.8 Payment of Taxes.
Except to the extent permitted by subsection 5.3, all material
taxes, assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises which are due and payable have been paid. Company knows of no
proposed tax assessment against Company or any of its Subsidiaries that has had
or would have a Material Adverse Effect, which is not being actively contested
by Company or such Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
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4.9 Performance of Agreements; Materially Adverse Agreements.
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the material obligations,
covenants or conditions contained in any of its Contractual Obligations, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, has not had and would not have a
Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreement or instrument or any charter or other
internal restriction which has had or will have, individually or in the
aggregate, a Material Adverse Effect.
4.10 Governmental Regulation.
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other Canadian, Commonwealth of Australia or U.S. federal or state
statute or regulation which may limit its ability to incur Indebtedness for
borrowed money.
4.11 Securities Activities.
Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
4.12 Employee Benefit Plans.
A. Company and each of its ERISA Affiliates are in compliance with all
applicable provisions and requirements of ERISA and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan,
and have performed all their obligations under each Employee Benefit Plan, where
failure to comply and perform such obligations would reasonably be expected to
have a Material Adverse Effect.
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B. Except as set forth on Schedule 4.12 annexed hereto, no ERISA Event
has occurred or is reasonably expected to occur which would reasonably be
expected to have a Material Adverse Effect.
C. Except to the extent required under Section 601 of ERISA or Section
4980B of the Internal Revenue Code or except as described on Schedule 4.12
annexed hereto, no Employee Benefit Plan of Company or any of its Subsidiaries
provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employees of Company or any of its ERISA
Affiliates.
D. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities) as set forth in the most recent actuarial report
prepared for such Pension Plan, does not exceed $20,000,000.
4.13 Certain Fees.
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby.
4.14 Environmental Protection.
Except as heretofore disclosed in writing by Company to Lenders
or otherwise disclosed in Company's Annual Report on Form 10-K for its 1995
fiscal year, no event or condition has occurred with respect to Company or any
of its Subsidiaries relating to any Environmental Laws or Release of Hazardous
Materials which, individually, or in the aggregate, has had or would have a
Material Adverse Effect.
4.15 Employee Matters.
There is no strike or work stoppage in existence or, to
Company's knowledge, threatened involving Company or any of its Subsidiaries
that has had or would reasonably be expected to have a Material Adverse Effect.
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4.16 Solvency.
Company and its Subsidiaries, taken as a whole, and each of
Borrowers are Solvent.
4.17 Compliance with Laws.
The businesses and operations of Company and its Subsidiaries
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, except to the extent that noncompliance
would not reasonably be expected to cause a Material Adverse Effect.
4.18 Disclosure.
No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document, or in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to Company or any Borrower, in the case
of any document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by Company and Borrowers to be reasonable at the time made, it being
recognized by Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by
any such projections may differ from the projected results. There is no fact
known (or which should upon the reasonable exercise of diligence be known) to
Company or any Borrower (other than matters of a general economic nature) that
has had, or would reasonably be expected to result in, a Material Adverse Effect
and that has not been disclosed herein or in such other documents, certificates
and statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
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Section 5. AFFIRMATIVE COVENANTS
Company and each Borrower severally covenant and agree that, so
long as any of the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations, the cancellation or
expiration of all Letters of Credit and Bankers' Acceptances and the
reimbursement of all amounts drawn thereunder, Company and each Borrower shall
perform all covenants in this Section 5 to be performed by it (including in the
case of any Borrower, covenants applicable to it in its capacity as a Subsidiary
of Company), and Company and each Borrower shall cause each of their respective
Subsidiaries to perform, all covenants in this Section 5 applicable to each such
Subsidiary.
5.1 Financial Statements and Other Reports.
Company shall maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of consolidated financial
statements in conformity with GAAP. Company shall deliver to Lenders:
(i) Quarterly Financials: as soon as available and in any event
within 50 days after the end of each fiscal quarter of each Fiscal Year
(beginning with the fiscal quarter ending September 30, 1996), the
consolidated balance sheets of Company and its Subsidiaries as at the
end of such fiscal quarter and the related consolidated statements of
income and cash flows of Company and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current
Fiscal Year to the end of such fiscal quarter, all in reasonable detail
and certified by the chief financial officer or chief accounting
officer of Company that they fairly present the consolidated financial
condition of Company and its Subsidiaries as at the dates indicated and
the results of their operations and the cash flows of Company and its
Subsidiaries for the periods indicated, subject to changes resulting
from audit and normal year-end adjustments;
(ii) Year-End Financials: as soon as available and in
any event within 90 days after the end of each Fiscal Year,
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the consolidated balance sheets of Company and its Subsidiaries,
Canadian Borrower and its Subsidiaries and Australian Borrower and its
Subsidiaries as at the end of such Fiscal Year and the related
consolidated statements of income, stockholders' equity and cash flows
of Company and its Subsidiaries, Canadian Borrower and its Subsidiaries
and Australian Borrower and its Subsidiaries for such Fiscal Year, all
in reasonable detail and certified by the chief financial officer or
chief accounting officer of Company that they present fairly in all
material respects the consolidated financial condition of Company and
its Subsidiaries, Canadian Borrower and its Subsidiaries and Australian
Borrower and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated;
(iii) Officers' and Compliance Certificates: together with each
delivery of consolidated financial statements of Company and its
Subsidiaries pursuant to subdivisions (i) and (ii) above, (a) an
Officers' Certificate of Company and each Borrower stating that the
signers have reviewed the terms of this Agreement and have made, or
caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of Company and its
Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during
or at the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of such Officers'
Certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default, or, if any such condition or
event existed or exists, specifying the nature and period of existence
thereof and what action Company or any Borrower has taken, is taking
and proposes to take with respect thereto; and (b) a Compliance
Certificate demonstrating in reasonable detail compliance during and at
the end of the applicable accounting periods with the restrictions
contained in subsections 6.1, 6.2, 6.3, 6.4, 6.6 and 6.7;
(iv) Accountants' Reports: promptly upon receipt
thereof (unless restricted by applicable professional standards),
copies of all reports submitted to Company by independent certified
public accountants in connection with
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each annual, interim or special audit of the financial statements of
Company and its Subsidiaries made by such accountants, including,
without limitation, any comment letter submitted by such accountants to
management in connection with their annual audit;
(v) Monthly Business Report: promptly upon their becoming
available (but in no event later than 45 days after the last day of
each month, or 90 days, in the case of the last month of each Fiscal
Year), the monthly business report relating to Company's and its
Subsidiaries' operations prepared internally for Company's management;
(vi) SEC Filings and Press Releases: (a) promptly upon
their becoming available, copies of (1) all financial state-
ments, reports, notices and proxy statements sent or made available
generally by Company to its security holders, (2) all regular and
periodic reports and all registration statements (other than on Form
S-8 or a similar form) and prospectuses, if any, filed by Company or
any of its Subsidiaries with the Securities and Exchange Commission or
any national securities exchange (including, without limitation,
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1996), and (b) concurrently with or immediately following
their being made available to intended recipients, all press releases
and other statements made available generally by Company to the public
concerning material developments in the business of Company or any of
its Subsidiaries;
(vii) Events of Default, etc.: promptly upon any Responsible
Officer of Company or any Borrower obtaining knowledge (a) of any
condition or event that constitutes an Event of Default or Potential
Event of Default, or becoming aware that any Lender, or any Agent has
given any notice or taken any other action with respect to a claimed
Event of Default or Potential Event of Default, (b) that any Person has
given any notice to Company or any of its Subsidiaries or taken any
other action with respect to a claimed default or event or condition of
the type referred to in subsection 7.2, (c) of any condition or event
that would be required to be disclosed in a current report filed by
Company with the Securities and Exchange Commission on Form 0-X (Xxxxx
0, 0,
000
0 and 6 of such Form as in effect on the date hereof) (information
required to be disclosed on Form 8-K shall be sent to Lenders when sent
for filing with the Securities and Exchange Commission), or (d) of the
occurrence of any event or change that has caused or evidences, either
individually or in the aggregate, a Material Adverse Effect, an
Officers' Certificate specifying the nature and period of existence of
such condition, event or change, or specifying the notice given or
action taken by any such Person and the nature of such claimed Event of
Default, Potential Event of Default, default, event or condition, and
what action Company and each Borrower has taken, is taking and proposes
to take with respect thereto;
(viii) Litigation: promptly upon any Responsible Officer of Company
or any Borrower obtaining knowledge of (X) the institution of, or
threat of, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or
any property of Company or any of its Subsidiaries (collectively,
"Proceedings") not previously disclosed in writing by Company to
Lenders or (Y) any material development in any Proceeding that, in the
case of either clause (X) or (Y) could reasonably be expected to cause
a Material Adverse Effect, written notice thereof together with a
summary of such Proceedings or material development;
(ix) ERISA Events: promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event which could reasonably
be expected to cause a Material Adverse Effect, a written notice
specifying the nature thereof, what action Company or any of its ERISA
Affiliates has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect
thereto;
(x) ERISA Notices: with reasonable promptness, copies of (a)
all notices received by Company or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event which could
reasonably be expected to cause a Material Adverse Effect; and (b) such
other documents or governmental reports or filings relating to any
Employee
115
Benefit Plan as Administrative Agent shall reasonably request;
(xi) Financial Plans: as soon as practicable and in any event no
later than 90 days after the beginning of each Fiscal Year, (a) a copy
of Company's annual budget promptly after approval thereof by Company's
Board of Directors, (b) a forecast of the amount of capital
expenditures anticipated for such Fiscal Year, and (c) such other
information and projections as any Lender may reasonably request, all
in form and substance satisfactory to Requisite Lenders;
(xii) Environmental Audits and Reports; Cash Flow Analysis: (a)
promptly after completion thereof (or receipt from an independent
consultant in the case of an audit conducted by Persons who are not
employees of Company or any of its Subsidiaries), copies of all final
environmental audits and reports, whether prepared by personnel of
Company or any of its Subsidiaries or by independent consultants, with
respect to significant environmental matters at any Facility or which
relate to an Environmental Claim which would reasonably be expected to
result in a Material Adverse Effect, and (b) within 50 days after the
end of the second fiscal quarter of each fiscal year, a Cash Flow
Analysis which shall be updated to reflect the most recent life-of-
mine operating plans of the currently producing mines within the Mining
Group; and
(xiii) Other Information: with reasonable promptness,
such other information and data with respect to Company or
any of its Subsidiaries as from time to time may be
reasonably requested by any Lender.
5.2 Corporate Existence, etc.
Except as permitted under subsection 6.7, Company will, and
will cause each of its Material Subsidiaries to, at all times preserve and keep
in full force and effect its corporate existence and all rights and franchises
material to the business of Company and its Subsidiaries, taken as a whole.
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5.3 Payment of Taxes and Claims; Tax Consolidation.
A. Company will, and will cause each of its Subsidiaries to, pay all
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including,
without limitation, claims for labor, services, materials and supplies) for sums
that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto, except for such taxes, assessments,
governmental charges and claims which in the aggregate do not exceed $3,000,000;
provided that no such charge or claim need be paid if being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Company or any of its Subsidiaries) for any period ending on
or after the Effective Date.
5.4 Maintenance of Properties; Insurance.
Company will, and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used in the business of
Company and its Subsidiaries, taken as a whole, or any Borrower (including,
without limitation, Intellectual Property) and from time to time will make or
cause to be made all appropriate repairs, renewals and replacements thereof.
Company will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business and
the properties and businesses of its Subsidiaries against loss or damage of the
kinds customarily carried or maintained under similar circumstances by
corporations of established reputation engaged in similar activities in the
countries where such properties or businesses are located.
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5.5 Inspection; Lender Meeting; Reports of Subsidiaries.
Company and Borrowers shall, and shall cause each of their
respective Subsidiaries to, permit any authorized representatives designated by
any Lender, at the expense of such Lender, to visit and inspect any of the
properties of Company, any Borrower or any of their respective Subsidiaries,
including its and their financial and accounting records, and, subject to the
provisions of subsection 10.21, to make copies and take extracts therefrom, and
to discuss its and their affairs, finances and accounts with its and their
officers, all upon reasonable notice and at such reasonable times during normal
business hours and as often as may be reasonably requested. Without in any way
limiting the foregoing, Company will, upon the request of Administrative Agent
or Requisite Lenders, participate in a meeting of Agents and Lenders once during
each Fiscal Year to be held at Company's corporate offices (or such other
location as may be agreed to by Company and Administrative Agent) at such time
as may be agreed to by Company and Administrative Agent. Company shall cause
Lenders to be added to the lists maintained by Prime of Persons to receive
reports of the type described in subsection 5.1(vi).
5.6 Compliance with Laws, etc.
Company shall, and shall cause each of its Subsidiaries to,
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which in any case or in
the aggregate would reasonably be expected to cause a Material Adverse Effect.
5.7 Environmental Disclosure and Inspection.
A. Company shall, and shall cause each of its Subsidiaries to, exercise
all due diligence in order to comply with all Environmental Laws where failure
to do so would reasonably be expected to result in a Material Adverse Effect.
B. Company shall promptly advise Lenders in writing and in reasonable
detail of (i) any Release of any Hazardous Materials that would reasonably be
expected to result in a Material Adverse Effect, (ii) any and all written
communications with respect to any Environmental Claims that would reasonably be
expected to
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result in a Material Adverse Effect, (iii) any remedial action taken by or at
the direction of Company in response to (x) any Hazardous Materials on, under or
about any Facility, the existence of which would reasonably be expected to
result in an Environmental Claim having a Material Adverse Effect, or (y) any
Environmental Claim that would reasonably be expected to result in a Material
Adverse Effect, (iv) Company's discovery of any occurrence or condition on any
real property adjoining or in the vicinity of any Facility that could cause such
Facility or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use thereof under any Environmental Laws and which
would reasonably be expected to result in a Material Adverse Effect, and (v) any
request for information from any governmental agency that indicates such agency
is investigating whether Company or any of its Subsidiaries may be potentially
responsible for a Release of Hazardous Materials, the remediation of which would
reasonably be expected to have a Material Adverse Effect.
C. Company shall promptly notify Lenders of any proposed acquisition of
stock, assets, or property by Company or any of its Subsidiaries that would
reasonably be expected to expose Company or any of its Subsidiaries to, or
result in, Environmental Claims that would reasonably be expected to result in a
Material Adverse Effect or that would reasonably be expected to have an adverse
effect on any material Governmental Authorization then held by Company or any of
its Subsidiaries.
D. Company shall provide copies of such documents or
information as Administrative Agent may reasonably request in
relation to any matters disclosed pursuant to this
subsection 5.7.
5.8 Company's Remedial Action Regarding Hazardous Materials.
Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary remedial action in
connection with the presence, storage, use, disposal, transportation or Release
of any Hazardous Materials on, under or about any Facility in order to comply
with all applicable Environmental Laws and undisputed Governmental
Authorizations where failure to comply would reasonably be expected to result in
a Material Adverse Effect. If Company or any of its Subsidiaries
119
undertakes any remedial action with respect to any Hazardous Materials on, under
or about any Facility, Company or such Subsidiary shall conduct and complete
such remedial action in material compliance with all applicable material
Environmental Laws, and in accordance with the policies, orders and directives
of all federal, state and local governmental authorities except when, and only
to the extent that, Company's or such Subsidiary's liability, including with
respect to such presence, storage, use, disposal, transportation or discharge of
any Hazardous Materials, or the jurisdiction or the authority or the validity or
the applicability of the Environmental Laws or the policies, orders or
directions is being contested in good faith by Company or such Subsidiary.
5.9 Further Assurances.
At any time or from time to time upon the request of
Administrative Agent, Company and Borrowers shall execute and deliver such
further documents and do such other acts and things as Administrative Agent may
reasonably request in order to effect fully the purposes of this Agreement and
to provide for payment of the Obligations in accordance with the terms of this
Agreement, the Notes and the Grid Gold Acknowledgements.
Section 6. NEGATIVE COVENANTS
Company and each Borrower severally covenant and agree that, so
long as any of the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations, the cancellation or
expiration of all Letters of Credit and Bankers' Acceptances and the
reimbursement of all amounts drawn thereunder, Company and each Borrower shall
perform all covenants in this Section 6 to be performed by it (including, in the
case of any Borrower, covenants applicable to it in its capacity as a Subsidiary
of Company), and Company and each Borrower shall cause each of their respective
Subsidiaries to perform all covenants in this Section 6 applicable to such
Subsidiary.
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6.1 Indebtedness.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company and Borrowers may become and remain liable
with respect to their respective Obligations;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness arising in respect of Contingent
Obligations permitted by subsection 6.4;
(iii) Company may become and remain liable with respect to
Indebtedness to any of its Subsidiaries, and any Subsidiary of Company
(other than Prime) may become and remain liable with respect to
Indebtedness to Company or any other Subsidiary of Company and Prime
may become and remain liable with respect to Indebtedness to Company or
any other Subsidiary of Company up to a maximum of $50,000,000
aggregate principal amount at any time outstanding; provided that all
such intercompany Indebtedness shall be subordinated on the same terms
as the subordination provisions of subsection 8.1B in right of payment
to the payment in full of the Obligations;
(iv) Company and its Subsidiaries, as applicable, may
remain liable with respect to Indebtedness described in
Schedule 6.1 annexed hereto;
(v) Company may become and remain liable with respect
to the Subordinated Debentures;
(vi) Prime may become and remain liable with respect to any
amount of Indebtedness incurred in the ordinary course of business,
which Indebtedness may be secured by Liens on the assets and properties
of Prime; provided that the holders of such Indebtedness have no
recourse against Company or any of its Subsidiaries other than Prime,
including, without limitation, any recourse that would arise by reason
of any direct financial guaranty or any letter of credit or performance
or solvency guaranties, representa-
121
tions or warranties made or entered into in connection with
the incurrence or creation of such Indebtedness;
(vii) (a) Prime, Australian Borrower, Canadian Borrower and any
Subsidiary of Company (other than U.S. Borrower) that does not own
assets included in the Mining Group may become and remain liable with
respect to Indebtedness secured solely by Liens on assets and
properties owned on the Effective Date that are undeveloped or that are
acquired after the Effective Date by the Person receiving the proceeds
of such Indebtedness and not adjacent to or relating to any Mining
Group properties existing as of the Effective Date and (b) U.S.
Borrower may become and remain liable with respect to Indebtedness
secured solely by Liens on assets and properties owned on the Effective
Date that are undeveloped; provided that the aggregate principal amount
of Indebtedness outstanding pursuant to clause (a) or (b) above shall
not at any time exceed $400,000,000 in the aggregate; provided further
that Requisite Lenders shall be satisfied that such Indebtedness
outstanding pursuant to clause (a) or (b) above is Non-Recourse Debt;
(viii) (a) Subsidiaries of Borrowers may become and remain liable
with respect to additional Indebtedness in an aggregate outstanding
principal amount not at any time exceeding $50,000,000 and (b)
Borrowers may become and remain liable with respect to additional
Indebtedness in an aggregate outstanding principal amount not at any
time exceeding $100,000,000 less the then outstanding principal amount
of Indebtedness of Subsidiaries of Borrowers pursuant to clause (a)
above; and
(ix) Company and its Subsidiaries may become and remain liable in
respect of any refinancing or extension of any Indebtedness described
in this subsection 6.1 (other than subsection 6.1(v)) for amounts not
exceeding the principal amounts of the Indebtedness so refunded or
extended and with maturities no earlier than such Indebtedness and if
secured, only by the property theretofore securing such Indebtedness;
provided that amounts refinancing such Indebtedness shall be included
in the calculation of any numerical limitations in the relevant clause
of this subsection 6.1 pursuant to which such Indebtedness was
originally permitted.
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6.2 Liens and Related Matters.
A. Prohibition on Liens. Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits, except:
(i) Permitted Encumbrances;
(ii) Liens described in Schedule 6.2 annexed hereto;
(iii) Purchase Money Security Interests securing up to an aggregate
principal amount of $50,000,000 at any time of Indebtedness permitted
to be outstanding under subsection 6.1(viii); and
(iv) Liens securing Indebtedness permitted to be outstanding
under subsections 6.1(vi) and (vii), and as provided in subsection
6.1(ix).
B. Equitable Lien in Favor of Lenders. If Company or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, to secure Indebtedness other
than Liens excepted by the provisions of subsection 6.2A, it shall make or cause
to be made effective provision whereby the Obligations will be secured by such
Lien equally and ratably with any and all other Indebtedness secured thereby as
long as any such other Indebtedness shall be so secured; provided that,
notwithstanding the foregoing, this covenant shall not be construed as a consent
by Requisite Lenders to the creation or assumption of any such Lien not
permitted by the provisions of subsection 6.2A.
C. No Restrictions on Subsidiary Distributions to Company
or Other Subsidiaries. Except in respect of Indebtedness
permitted by subsections 6.1(vi) and (vii) and also, with respect
to clause (iv) below, except with respect to properties dedicated
123
under Joint Ventures and in respect of Indebtedness secured by Purchase Money
Security Interests, and except for permitted refinancings of such Indebtedness,
and as provided herein, Company will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual prohibition of any kind on the ability of any such
Subsidiary to (i) pay dividends or make any other distributions on any of such
Subsidiary's capital stock owned by Company or any other Subsidiary of Company,
(ii) repay or prepay any Indebtedness owed by such Subsidiary to Company or any
other Subsidiary of Company, (iii) make loans or advances to Company or any
other Subsidiary of Company, or (iv) transfer any of its property or assets to
Company or any other Subsidiary of Company; provided that any restrictions based
on financial or other tests (not effectively acting as prohibitions) shall not
be deemed prohibitions.
6.3 Investments; Joint Ventures.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, make or own any Investment in any Person, including
any Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Marketable Securities;
(ii) Company and its Subsidiaries may make intercompany
loans to the extent permitted under subsection 6.1(iii);
(iii) (Reserved);
(iv) Company and its Subsidiaries may continue to own the
Investments owned by them and described in Schedule 6.3 annexed hereto
or, if not described in Schedule 6.3, in the aggregate not exceeding
$10,000,000;
(v) Borrowers and their respective Subsidiaries may continue to
own and make Investments in or make acquisitions of businesses
substantially similar to those currently conducted by Company or in
related industries and Borrowers and their Subsidiaries may make
Investments in new and existing Subsidiaries; provided that any such
Investments are permitted by the provisions of subsection 6.7(v);
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(vi) Borrowers and their respective Subsidiaries may acquire and
retain ownership of Investments in connection with Asset Sales
permitted by subsection 6.7(iv); provided that the aggregate net amount
of all such Investments described in this subsection 6.3(vi) shall not
at any time exceed $100,000,000; and provided further, however, that
for purposes of compliance with this subsection 6.3(vi) Asset Sales
involving the simultaneous receipt of notes and sale of such notes to a
third party shall be excluded;
(vii) Company and its Subsidiaries may make and own Investments
received in connection with the bankruptcy or reorganization of
suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the
ordinary course of business;
(viii) Company and its Subsidiaries may make and own
Investments with respect to Contingent Obligations which are
permitted by subsection 6.4; and
(ix) Company and its Subsidiaries may make and continue to own
Investments in, and may make and own Investments resulting from capital
calls, buyout obligations or similar requirements in respect of, Joint
Ventures in the ordinary course of business.
6.4 Contingent Obligations.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations (a) in respect of Letters of
Credit, or (b) set forth in this Agreement;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations under Interest Rate Protection
Agreements having a notional principal amount not exceeding
$100,000,000 with respect to Indebtedness permitted under subsection
6.1;
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(iii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with sales of assets permitted under subsection 6.7;
(iv) Company and its Subsidiaries may guarantee any obligations
of their respective Subsidiaries (including Joint Ventures) provided
that the aggregate amount guaranteed does not exceed $100,000,000;
(v) Company and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in Schedule 6.4
annexed hereto;
(vi) Company and its Subsidiaries may become and remain liable
with respect to gold futures, options or forward sales contracts and
Currency Protection Agreements or similar arrangements designed to
protect Company or any of its Subsidiaries against fluctuations in the
price of Gold or the relative exchange rates for currencies in
accordance with current industry practice or the past practices of
Company and its Subsidiaries provided that the notional amount of the
aggregate contingent liability of Company and its Subsidiaries under
all such futures, options, contracts agreements and arrangements does
not at any time exceed $600,000,000; and
(vii)Company and its Subsidiaries may become and remain liable with
respect to (a) standby letters of credit with respect to pollution
control bonds identified on Schedule 6.4 and refinancings thereof and
Contingent Obligations in respect of standby letters of credit and
surety bonds securing reclamation and other performance obligations
under contracts, permits, statutes and regulations and made in the
ordinary course of business, but not including Indebtedness or
Contingent Obligations of Company and its Subsidiaries for borrowed
money or as described in subsection 6.4(vi), and (b) standby letters of
credit and surety bonds securing Indebtedness or Contingent Obligations
of Company and its Subsidiaries for borrowed money or to support
Contingent Obligations described in subsections 6.4(ii) through (vi) in
an aggregate amount not exceeding $50,000,000 at any time,
126
it being understood that all letters of credit and surety bonds for
which Company and its Subsidiaries are liable shall be permitted only
under subsection 6.4(i) or this subsection 6.4(vii).
6.5 Restricted Junior Payments.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, declare, order, pay, make or set apart any sum for
any Restricted Junior Payment; provided that (i) Company and its Subsidiaries
may pay dividends to their respective shareholders, (ii) so long as (a) no Event
of Default or (b) no Potential Event of Default under subsections 7.1 or 7.6,
shall have occurred and be continuing, or result from such payment, Company may
make scheduled payments of interest on the Subordinated Debentures in accordance
with their terms from all available sources and (iii) so long as no Event of
Default or Potential Event of Default shall have occurred and be continuing,
Company may redeem the Subordinated Debentures.
6.6 Financial Covenants.
A. Minimum Consolidated Net Worth. Company shall not
permit Consolidated Net Worth at any time to be less than
$500,000,000.
B. Leverage Ratio. Company shall not permit the ratio of
(i) Consolidated Total Debt to (ii) the sum of Consolidated Net
Worth plus Consolidated Total Debt at any time to exceed 0.50 to
1.00.
6.7 Restriction on Fundamental Changes; Asset Sales.
Company shall not, and shall not permit any of its Subsidiaries
to, enter into any transaction of merger or consolidation, or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, sub-lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any substantial part of its business, property or
fixed assets, whether now owned or hereafter acquired, or acquire by purchase or
otherwise all or substantially all the business, property or fixed assets of, or
127
stock or other evidence of beneficial ownership of, any Person, except:
(i) any Subsidiary of Company (other than any Borrower) may be
merged, consolidated or amalgamated with or into any Borrower or any
Subsidiary of any Borrower, or be liquidated, wound up or dissolved, or
all or any part of its business, property or assets may be conveyed,
sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to any Borrower or any Subsidiary of any
Borrower; provided that, in the case of such a merger, consolidation or
amalgamation with any Borrower, such Borrower shall be the continuing
or surviving corporation and provided further that immediately after
giving effect to such merger, consolidation or amalgamation, no
Potential Event of Default or Event of Default shall have occurred and
be continuing;
(ii) (Reserved);
(iii) subject to subsection 6.10, Company and its Subsidiaries may
sell or otherwise dispose of assets in transactions that do not
constitute Asset Sales;
(iv) Company and its Subsidiaries may make Asset Sales; provided
that the consideration received for such assets shall be in an amount
at least equal to the fair market value thereof and that such Asset
Sales do not involve the sale or other disposition, in one transaction
or a series of transactions, of all or any substantial part of the
business, property or fixed assets of the Company and its Subsidiaries;
and provided, further, that after any such Asset Sales no Potential
Event of Default or Event of Default shall have occurred and be
continuing; and
(v) Borrowers and their respective Subsidiaries may acquire
Securities or assets of another Person, including existing
Subsidiaries, or create additional Subsidiaries; provided that after
giving effect to such acquisition, Company and its Subsidiaries will be
in compliance with all covenants set forth in Sections 5 and 6.
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6.8 Transactions with Shareholders and Affiliates.
Except as set forth in Schedule 6.8, Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, enter into
or permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any holder of 5% or more of any class of equity Securities of Company or with
any Affiliate of Company or of any such holder, on terms that are less favorable
to Company or that Subsidiary, as the case may be, than those that might be
obtained at the time from Persons who are not such a holder or Affiliate;
provided that the foregoing restriction shall not apply to (i) any transaction
between Company and any of its wholly-owned Subsidiaries or between any of its
wholly-owned Subsidiaries or (ii) reasonable and customary fees paid to members
of the Boards of Directors of Company and its Subsidiaries.
6.9 Disposal of Material Subsidiary Stock.
Except for any disposition or sale of capital stock or other
equity Securities of any of its Material Subsidiaries in compliance with the
provisions of subsections 6.7(i) and (iv), Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other equity
Securities of any of its Material Subsidiaries, except to qualify
directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any shares of
capital stock or other equity Securities of any of its Material
Subsidiaries (including such Subsidiary), except to Company, another
Subsidiary of Company, or to qualify directors if required by
applicable law;
provided, however, that nothing contained in this Agreement shall (a) prohibit
or otherwise limit the ability of Prime to sell securities issued by it, (b)
permit the capital stock of any Borrower (other than 10% of the Canadian
Borrower) to be sold or
129
disposed of, or (c) prohibit Investments by venturers in Joint
Ventures permitted by subsection 6.3(ix).
6.10 Conduct of Business.
From and after the Effective Date, Company shall not, and shall
not permit any of its Subsidiaries to, engage in any business other than the
businesses engaged in by Company and its Subsidiaries on the Effective Date and
similar or related businesses.
6.11 Prepayments and Amendments to Subordinated Indebtedness.
Company shall not, and shall not permit any of its Subsidiaries
to, amend or otherwise change the terms of any Subordinated Indebtedness, or
make any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default), change the redemption, prepayment or
defeasance provisions thereof, change the subordination provisions thereof (or
of any guaranty thereof), or change any collateral therefor (other than to
release such collateral), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Subordinated Indebtedness (or a trustee or other representative
on their behalf) which would be adverse to Company, any Borrower or Lenders.
Section 7. EVENTS OF DEFAULT
IF any of the following conditions or events ("Events of
Default") shall occur:
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7.1 Failure to Make Payments When Due.
(i) Failure to pay any installment of principal of any Loan
when due, whether at stated maturity, by acceleration, by notice of prepayment
or otherwise; (ii) failure to pay when due any amount payable to any Issuing
Lender in reimbursement of any drawing under any Letter of Credit issued
pursuant to subsection 2.7; (iii) failure to pay when due any Bankers'
Acceptance created pursuant to subsection 2.8 at maturity; or (iv) failure to
pay any interest on any Loan or any fee or any other Obligation within five days
after the date due; or
7.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to pay when
due (a) any principal of or interest on any Indebtedness (other than
Indebtedness referred to in subsection 7.1) in an individual principal amount of
$5,000,000 or more or (b) any Contingent Obligation in an individual principal
or face amount of $5,000,000 or more or notional principal amount of $20,000,000
or more, in each case beyond the end of any grace period provided therefor; or
(ii) the occurrence of any event specified in (a) any evidence of any
Indebtedness in an individual principal amount of $5,000,000 or more or any
Contingent Obligation in an individual principal or face amount of $5,000,000 or
more or notional principal amount of $20,000,000 or more, or (b) any loan
agreement, mortgage, indenture or other agreement relating to such Indebtedness
or Contingent Obligation(s), in each case if the effect of such event is to
cause a default that would cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such holder
or holders) to cause, that Indebtedness or Contingent Obligation(s) to become or
be declared due and payable prior to its stated maturity or the stated maturity
of any underlying obligation, as the case may be; or
7.3 Breach of Certain Covenants.
Failure of Company or any Borrower, as the case may be, to
perform or comply with any term or condition contained in subsection 2.4, 2.5 or
5.2 or Section 6 of this Agreement; or
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7.4 Breach of Warranty.
Any representation, warranty, certification or other statement
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Company or any of its Subsidiaries
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or
7.5 Other Defaults Under Loan Documents.
Company or any Borrower, as the case may be, shall default in
the performance of or compliance with any term contained in this Agreement or
any of the other Loan Documents, other than any such term referred to in any
other subsection of this Section 7, and such default shall not have been
remedied or waived within 30 days after the earlier of (i) a Responsible Officer
of Company or any Borrower becoming aware of such default or (ii) receipt by
Company or any Borrower of notice from any Agent or any Lender of such default;
or
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company, any Borrower or any
of Company's Subsidiaries (other than Subsidiaries operating outside of
the United States, Canada and Australia and not constituting Material
Subsidiaries ("Minor Foreign Subsidiaries")) in an involuntary case
under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, which decree or
order is not stayed; or any other similar relief shall be granted under
any applicable federal or state law and not stayed; or
(ii) an involuntary case shall be commenced against Company, any
Borrower or any of Company's Subsidiaries (other than Minor Foreign
Subsidiaries) under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a
decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, administrator, liquidator, sequestrator,
trustee, custodian or other officer having
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similar powers over Company, any Borrower or any of Company's
Subsidiaries (other than Minor Foreign Subsidiaries), or over all or a
substantial part of its property, shall have been entered; or there
shall have occurred the involuntary appointment of an interim receiver,
administrator, trustee or other custodian of Company, any Borrower or
any of Company's Subsidiaries (other than Minor Foreign Subsidiaries)
for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against
any substantial part of the property of Company, any Borrower or any of
Company's Subsidiaries (other than Minor Foreign Subsidiaries), and any
such event described in this clause (ii) shall continue for 60 days
unless dismissed, bonded or discharged; or
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Company, any Borrower or any of Company's Subsidiaries
(other than Minor Foreign Subsidiaries) shall have an order for relief
entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry
of an order for relief in an involuntary case, or to the conversion of
an involuntary case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a receiver,
administrator, trustee or other custodian for all or a substantial part
of its property; or Company, any Borrower or any of Company's
Subsidiaries (other than Minor Foreign Subsidiaries) shall make a
general assignment for the benefit of creditors; or
(ii) Company, any Borrower or any of Company's Subsidiaries
(other than Minor Foreign Subsidiaries) shall be unable or shall fail,
or shall admit in writing its inability, to generally pay its debts as
such debts become due; or the Board of Directors of Company, any
Borrower or any of Company's Subsidiaries (other than Minor Foreign
Subsidiaries) (or any committee thereof) shall adopt any resolution or
otherwise authorize any action to approve any of the actions referred
to in clause (i) above or this clause (ii); or
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7.8 Judgments and Attachments.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $5,000,000
or (ii) in the aggregate at any time an amount in excess of $10,000,000 (in
either case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Company, any Borrower or any Material Subsidiaries or any of their
respective assets (or shall be entered against any of Company's other
Subsidiaries and Company or any Material Subsidiary shall be or become liable
therefor) and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 60 days (or in any event later than five days prior to the date of any
proposed sale thereunder); or
7.9 Dissolution.
Except as permitted by subsection 6.7, any order, judgment or
decree shall be entered against Company, any Borrower or any Material Subsidiary
decreeing the dissolution or split up of Company, any Borrower or any Material
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
7.10 Employee Benefit Plans.
There shall occur one or more ERISA Events which results in or
would reasonably be expected to result in liability of Company or any of its
ERISA Affiliates in an individual amount in excess of $10,000,000 or in an
aggregate amount in excess of $20,000,000 during the term of this Agreement; or
there shall exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities) as set forth in the most recent
actuarial report prepared for such Pension Plans, which exceeds $40,000,000; or
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7.11 Change in Control of Borrowers.
Company shall fail to own all of the issued and outstanding
capital stock of U.S. Borrower, or U.S. Borrower shall fail to own at least 90%
of the issued and outstanding capital stock of Canadian Borrower, or Company and
U.S. Borrower shall fail to collectively own all of the issued and outstanding
capital stock of Australian Borrower:
THEN (i) upon the occurrence and during the continuance of any Event of Default
described in the foregoing subsections 7.6 or 7.7 each of (w) the unpaid
principal amount of and accrued interest on the Loans, (x) an amount equal to
the maximum amount which may at any time be drawn under all Letters of Credit
then outstanding (whether or not any beneficiary under any Letter of Credit
shall have presented, or shall be entitled at such time to present, the drafts
or other documents required to draw under such Letter of Credit), (y) an amount
equal to the Face Amount of all outstanding Bankers' Acceptances, and (z) all
other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest or other requirements of any kind, all of
which are hereby expressly waived by Company and each Borrower and the
obligation of each Lender to make any Loan, the obligation of each Issuing
Lender to issue any Letter of Credit hereunder and the obligation of each
Canadian Lender to create or purchase Bankers' Acceptances hereunder shall
thereupon terminate, and (ii) upon the occurrence and during the continuation of
any other Event of Default, Administrative Agent shall, upon the written request
of Requisite Lenders, by written notice to Company and each Borrower, declare
all of the Loans to be, and an amount equal to the amounts described in clauses
(w) through (z) above to be, and the same shall forthwith become, due and
payable, together with accrued interest thereon, and the obligation of each
Lender to make any Loan, the obligation of each Issuing Lender to issue any
Letter of Credit hereunder and the obligation of each Canadian Lender to create
or purchase Bankers' Acceptances hereunder shall thereupon terminate; provided
that the foregoing shall not affect in any way the obligations of Lenders to
purchase from each Issuing Lender participations in the unreimbursed amount of
any drawings under any Letters of Credit as provided in subsection 2.7D.
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So long as any Letter of Credit shall remain outstanding, any
amounts described in clause (x) above with respect to such Letter of Credit,
when received by the applicable Issuing Lender, shall be held by the applicable
Issuing Lender pursuant to such documentation as the applicable Issuing Lender
shall request, as cash collateral for the obligation of the applicable Borrower
to reimburse the applicable Issuing Lender in the event of any drawing under
such Letter of Credit, and so much of such funds shall at all times remain on
deposit as cash collateral as aforesaid as shall equal the maximum amount
available at any time for drawing under all Letters of Credit (the "Maximum
Available Amount"); provided that, in the event of cancellation or expiration of
any Letter of Credit or any reduction in the Maximum Available Amount, the
applicable Issuing Lender shall apply the difference between the Maximum
Available Amount immediately prior to such cancellation, expiration or reduction
and the Maximum Available Amount immediately after such cancellation or
reduction, first, to the payment in full of the outstanding Obligations, and
second, to Company or the applicable Borrower or to such other Person who may be
lawfully entitled to receive such funds or as a court of competent jurisdiction
may direct.
Any amounts described in clause (y) above, when received by
Canadian Administrative Agent, shall be held by Canadian Administrative Agent in
a collateral account over which Canadian Administrative Agent shall have sole
dominion and control upon terms that are customary to cash collateral accounts
maintained with Canadian Administrative Agent, as cash collateral for the
obligation of Canadian Borrower to pay the amount of such Bankers' Acceptances
at maturity, and at the maturity of each such Bankers' Acceptance, Canadian
Administrative Agent shall apply such amounts held pursuant to the terms of the
collateral account agreement to the payment thereof. Canadian Borrower hereby
grants Canadian Administrative Agent a security interest in any such collateral
account and all funds on deposit therein.
At any time that an Event of Default is continuing and the
principal of any Gold Loan has been declared to be immediately due and payable,
each Lender shall be entitled, for and on behalf of the applicable Borrower, to
purchase in accordance with its normal procedures a number of Ounces of Gold
equal to the number of Ounces of Gold then comprising such Gold
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Loan, and to apply the Gold so purchased to pay such Gold Loan. The all-in costs
to any Lender of purchasing such Gold, provided that any costs incurred are
reasonable in the circumstances, shall be deemed to be a U.S. Base Rate Loan to
U.S. Borrower, a U.S. Base Rate (Canada) Loan to Canadian Borrower and a
Eurodollar Rate Loan with an Interest Period of one month to Australian
Borrower. A certificate of a Lender as to any such all-in costs shall be prima
facie evidence of the costs to such Lender of making such purchase.
Section 8. GUARANTIES OF COMPANY AND U.S. BORROWER OF
OBLIGATIONS
In order to induce Lenders to enter into this Agreement and to
make the Loans to Borrowers hereunder and to issue Letters of Credit for the
account of Borrowers hereunder and, in the case of Canadian Lender, create and
purchase Bankers' Acceptances, each of Company and U.S. Borrower hereby agrees
as follows:
8.1 Guaranty by Company
A. Guaranty. As consideration for Lenders agreeing to enter into this
Agreement and to extend the Commitments hereunder, Company hereby
unconditionally and irrevocably guarantees, as primary obligor and not merely as
a surety, and jointly and severally with U.S. Borrower as it relates to the
Obligations of Canadian Borrower and Australian Borrower, the due and punctual
payment when due (whether by required prepayment, declaration, demand or
otherwise) (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a)
or operation of any such stay under applicable Canadian and/or Australian law)
of all Obligations of Borrowers (including, without limitation, interest which,
but for the filing of a petition in bankruptcy with respect to U.S. Borrower, or
a similar action with respect to Canadian Borrower or Australian Borrower, would
accrue on such Obligations). For purposes of this Section 8, the obligations of
Company under this subsection 8.1 are referred to as this "Company Guaranty."
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B. Terms of Company Guaranty
Company agrees that the Obligations of any Borrower may be
extended or renewed, and the Loans repaid and reborrowed in whole or in part,
without notice or further assent from it, and that it will remain bound upon
this Company Guaranty notwithstanding any extension, renewal or other alteration
of any such Obligation or repayment and reborrowing of the Loans.
Company waives presentation of, demand of, payment from and
protest of any Obligation of any Borrower and also waives notice of protest for
nonpayment. The obligations of Company under this Company Guaranty shall not be
affected by, and Company hereby waives its rights (to the extent permitted by
law) in connection with:
(a) the failure of any Agent or any Lender to assert any claim
or demand or to enforce any right or remedy against any Borrower or
Company under the provisions of this Agreement or any other agreement
or otherwise,
(b) any extension or renewal of any provision thereof,
(c) any rescission, waiver, amendment or modification
of any of the terms or provisions of this Agreement or any
instrument executed pursuant hereto,
(d) the release of any security held by any Agent or
any Lender for the Obligations of any Borrower,
(e) the failure of any Agent or any Lender to exercise
any right or remedy against any other guarantor of the
Obligations of any Borrower,
(f) any Agent or any Lender taking and holding security or
collateral for the payment of this Company Guaranty, any other
guaranties of the Obligations or other liabilities of any Borrower and
the Obligations guarantied hereby, and exchanging, enforcing, waiving
and releasing any such security or collateral,
(g) any Agent or any Lender applying any such security
or collateral and directing the order or manner of sale
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thereof as such Agent or such Lender in its discretion may
determine,
(h) any Agent or any Lender settling, releasing, compromising,
collecting or otherwise liquidating the Obligations and any security or
collateral therefor in any manner determined by such Agent or such
Lender, or
(i) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this guaranty,
including without limitation, the provisions of California Civil Code
Sections 2809, 2810, 2819, 2839, 2845, 2846, 2849, 2850, 2899 and 3433.
Without limiting the generality of the foregoing or any other
provision of this Company Guaranty, Company hereby waives any rights, defenses
and benefits which might otherwise be available to Company under California
Civil Code Sections 2787 to 2855, inclusive, and any successor sections. Company
acknowledges and agrees that all waivers of defenses arising from any impairment
of Company's rights of subrogation, reimbursement, contribution and
indemnification and waivers of any other rights, privileges, defenses or
protections available to Company by reasons of Sections 2787 to 2855, inclusive,
of the California Civil Code are intended by Company to be effective to the
maximum extent permitted by Section 2856 of the California Civil Code and other
applicable law.
Company further agrees that this Company Guaranty constitutes a
guaranty of payment when due and not of collection and waives any right to
require that any resort be had by any Lender, any Agent or any other Person to
any security held for payment of the Obligations of any Borrower or to any
balance of any deposit account or credit on the books of any Lender, any Agent
or any other Person in favor of any Borrower or any other Person.
The obligations of Company under this Company Guaranty shall
not be subject to any reduction, limitation, impairment or termination for any
reason, including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim,
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recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations, discharge of any Borrower from the
Obligations in a bankruptcy or similar proceeding or otherwise. Without limiting
the generality of the foregoing, the obligations of Company under this Company
Guaranty shall not be discharged or impaired or otherwise affected by the
failure of any Agent or any Lender to assert any claim or demand or to enforce
any remedy under this Agreement, any Loan Document or any other agreement, by
any waiver or modification of any provision thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Obligations of any
Borrower, or by any other act or thing or omission or delay to do any other act
or thing that may or might in any manner or to any extent vary the risk of
Company or would otherwise operate as a discharge of Company as a matter of law
or equity other than indefeasible payment in full of all Obligations.
Any Agent and any Lender may, at their election, foreclose on
any security held by such Agent or such Lender by one or more judicial or
nonjudicial sales, or exercise any other right or remedy any Agent or any Lender
may have against any Borrower or any security without affecting or impairing in
any way the liability of Company hereunder except to the extent the Obligations
have been indefeasibly paid. Company waives any defense arising out of such
election by any Agent or any Lender, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of Company against any Borrower or any security, so long as such Agent or
such Lender act in a commercially reasonable manner.
Company further agrees that this Company Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation of
any Borrower is rescinded or must otherwise be restored by any Agent or any
Lender upon the bankruptcy or reorganization of any Borrower or otherwise.
Company further agrees, in furtherance of the foregoing and not
in limitation of any other right that any Agent or any Lender may have at law or
in equity against Company by virtue hereof, upon the failure of any Borrower to
pay any of its Obligations when and as the same shall become due (whether by
required prepayment, declaration, demand or otherwise), Company
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will forthwith pay, or cause to be paid, in cash, to Administrative Agent an
amount equal to the sum of the unpaid principal amount of such Obligations,
accrued and unpaid interest on such Obligations and all other unpaid Obligations
of such Borrower to any Agent or any Lender.
Company hereby irrevocably waives any right of subrogation,
contribution, indemnity or otherwise against any Borrower that may arise out of
or be caused by this Company Guaranty, all rights and/or claims which may arise
against any Borrower by reason of this Company Guaranty, any right to enforce
any remedy that any Agent or any Lender now has or may hereafter have against
any Borrower and any benefit of, and any right to participate in, any security
now or hereafter held by any Agent or any Lender.
Any Indebtedness of any of Company's Subsidiaries held by
Company is hereby subordinated in right of payment to the Obligations on the
terms of this paragraph. Upon the occurrence and during the continuation of an
Event of Default, no distribution of assets in respect of any such Indebtedness
(including any payment of principal, interest or fees or any repurchase,
redemption or setoff of such Indebtedness against other Indebtedness owing to
Company or payment received as a result of other Indebtedness being subordinated
to such Indebtedness) may be made until indefeasible payment in full in cash of
all Obligations. If, notwithstanding the preceding sentence, any such
distribution of assets shall be collected or received by Company after the
occurrence and during the continuation of an Event of Default, such distribution
of assets shall be paid over to Administrative Agent for the benefit of Lenders
to be held as collateral and then or thereafter credited and applied against the
Obligations but without impairing or limiting in any manner the liability of
Company under any other provision of this Section 8.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon any failure
of any Borrower to pay its Obligations when due (whether by required prepayment,
declaration, demand or otherwise) and consequent acceleration of the Obligations
pursuant to Section 7, any Agent and any Lender, upon the consent of Adminis-
trative Agent and Requisite Lenders, is hereby authorized
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by Company at any time or from time to time, without notice to Company or to any
other Person, any such notice being hereby expressly waived to the extent
permitted by applicable law, to set off and to appropriate and to apply any and
all deposits (general or special, including, but not limited to, Indebtedness
evidenced by certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time owing by such
Agent or such Lender to or for the credit or the account of Company against and
on account of the obligations and liabilities of Company to such Agent or such
Lender under this Company Guaranty, including, but not limited to, all such
obligations and liabilities with respect to all claims of any nature or
description arising out of or connected with this Agreement, this Company
Guaranty or the Letters of Credit or Bankers' Acceptances or any of the other
Loan Documents, irrespective of whether or not such Agent or such Lender or
Administrative Agent, with respect to any Obligation owed under the Letters of
Credit, Bankers' Acceptances or this Agreement, shall have made any demand
hereunder.
8.2 Guaranty by U.S. Borrower
A. Guaranty. As consideration for Lenders agreeing to enter into this
Agreement and to extend the Commitments hereunder, U.S. Borrower hereby
unconditionally and irrevocably guarantees, as a primary obligor and not merely
as a surety, and jointly and severally with Company as it relates to the
Obligations of Canadian Borrower and Australian Borrower, the due and punctual
payment when due (whether by required prepayment, declaration, demand or
otherwise) (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a)
or operation of any such stay under applicable Canadian and/or Australian law)
of all Obligations of Canadian Borrower and Australian Borrower (including,
without limitation, interest which, but for the filing of a petition in
bankruptcy or a similar action with respect to Canadian Borrower or Australian
Borrower, would accrue on such Obligations). For purposes of this Section 8, the
obligations of U.S. Borrower under this subsection 8.2 are referred to as this
"U.S. Borrower Guaranty."
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B. Terms of U.S. Borrower Guaranty
U.S. Borrower agrees that the Obligations of Canadian Borrower
and Australian Borrower may be extended or renewed, and the Loans repaid and
reborrowed in whole or in part, without notice or further assent from it, and
that it will remain bound upon this U.S. Borrower Guaranty notwithstanding any
extension, renewal or other alteration of any such Obligation or repayment and
reborrowing of the Loans.
U.S. Borrower waives presentation of, demand of, payment from
and protest of any Obligation of Canadian Borrower or Australian Borrower and
also waives notice of protest for nonpayment. The obligations of U.S. Borrower
under this U.S. Borrower Guaranty shall not be affected by, and U.S. Borrower
hereby waives its rights (to the extent permitted by law) in connection with:
(a) the failure of any Agent or any Lender to assert
any claim or demand or to enforce any right or remedy
against Canadian Borrower, Australian Borrower or U.S.
Borrower under the provisions of this Agreement or any other
agreement or otherwise,
(b) any extension or renewal of any provision thereof,
(c) any rescission, waiver, amendment or modification
of any of the terms or provisions of this Agreement or any
instrument executed pursuant hereto,
(d) the release of any security held by any Agent or
any Lender for the Obligations of Canadian Borrower or
Australian Borrower,
(e) the failure of any Agent or any Lender to exercise
any right or remedy against any other guarantor of the
Obligations of Canadian Borrower or Australian Borrower,
(f) any Agent or any Lender taking and holding security
or collateral for the payment of this U.S. Borrower
Guaranty, any other guaranties of the Obligations or other
liabilities of Canadian Borrower or Australian Borrower and
the Obligations guarantied hereby, and exchanging,
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enforcing, waiving and releasing any such security or
collateral,
(g) any Agent or any Lender applying any such security or
collateral and directing the order or manner of sale thereof as such
Agent or such Lender in its discretion may determine,
(h) any Agent or any Lender settling, releasing, compromising,
collecting or otherwise liquidating the Obligations of Canadian
Borrower or Australian Borrower and any security or collateral therefor
in any manner determined
by such Agent or such Lender, or
(i) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this guaranty,
including without limitation, the provisions of California Civil Code
Sections 2809, 2810, 2819, 2839, 2845, 2846, 2849, 2850, 2899 and 3433.
Without limiting the generality of the foregoing or any other
provision of this U.S. Borrower Guaranty, U.S. Borrower hereby waives any
rights, defenses and benefits which might otherwise be available to U.S.
Borrower under California Civil Code Sections 2787 to 2855, inclusive, and any
successor sections. U.S. Borrower acknowledges and agrees that all waivers of
defenses arising from any impairment of U.S. Borrower's rights of subrogation,
reimbursement, contribution and indemnification and waivers of any other rights,
privileges, defenses or protections available to U.S. Borrower by reasons of
Sections 2787 to 2855, inclusive, of the California Civil Code are intended by
U.S. Borrower to be effective to the maximum extent permitted by Section 2856 of
the California Civil Code and other applicable law.
U.S. Borrower further agrees that this U.S. Borrower Guaranty
constitutes a guaranty of payment when due and not of collection and waives any
right to require that any resort be had by any Lender, any Agent or any other
Person to any security held for payment of the Obligations of Canadian Borrower
or Australian Borrower or to any balance of any deposit account or credit on
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the books of any Lender, any Agent or any other Person in favor of Canadian
Borrower or Australian Borrower or any other Person.
The obligations of U.S. Borrower under this U.S. Borrower
Guaranty shall not be subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations, discharge
of Canadian Borrower or Australian Borrower from the Obligations in a bankruptcy
or similar proceeding or otherwise. Without limiting the generality of the
foregoing, the obligations of U.S. Borrower under this U.S. Borrower Guaranty
shall not be discharged or impaired or otherwise affected by the failure of any
Agent or any Lender to assert any claim or demand or to enforce any remedy under
this Agreement, any Loan Document or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations of Canadian Borrower or
Australian Borrower, or by any other act or thing or omission or delay to do any
other act or thing that may or might in any manner or to any extent vary the
risk of U.S. Borrower or would otherwise operate as a discharge of U.S. Borrower
as a matter of law or equity other than indefeasible payment in full of all
Obligations.
Any Agent and any Lender may, at their election, foreclose on
any security held by such Agent or such Lender by one or more judicial or
nonjudicial sales, or exercise any other right or remedy any Agent or any Lender
may have against Canadian Borrower or Australian Borrower or any security
without affecting or impairing in any way the liability of U.S. Borrower
hereunder except to the extent the Obligations of Canadian Borrower and
Australian Borrower have been indefeasibly paid. U.S. Borrower waives any
defense arising out of such election by any Agent or any Lender, even though
such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of U.S. Borrower against Canadian Borrower
or Australian Borrower or any security, so long as any Agent or such Lender act
in a commercially reasonable manner.
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U.S. Borrower further agrees that this U.S. Borrower Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any Obligation
of Canadian Borrower or Australian Borrower is rescinded or must otherwise be
restored by any Agent or any Lender upon the bankruptcy or reorganization of
Canadian Borrower or Australian Borrower or otherwise.
U.S. Borrower further agrees, in furtherance of the foregoing
and not in limitation of any other right that any Agent or any Lender may have
at law or in equity against Company by virtue hereof, upon the failure of
Canadian Borrower or Australian Borrower to pay any of its Obligations when and
as the same shall become due (whether by required prepayment, declaration,
demand or otherwise), U.S. Borrower will forthwith pay, or cause to be paid, in
cash, to Administrative Agent an amount equal to the sum of the unpaid principal
amount of such Obligations, accrued and unpaid interest on such Obligations and
all other unpaid Obligations of Canadian Borrower and Australian Borrower to any
Agent or any Lender.
U.S. Borrower hereby irrevocably waives any right of
subrogation, contribution, indemnity or otherwise against Canadian Borrower or
Australian Borrower that may arise out of or be caused by this U.S. Borrower
Guaranty, all rights and/or claims which may arise against Canadian Borrower or
Australian Borrower by reason of this U.S. Borrower Guaranty, any right to
enforce any remedy that any Agent or any Lender now has or may hereafter have
against Canadian Borrower or Australian Borrower and any benefit of, and any
right to participate in, any security now or hereafter held by any Agent or any
Lender.
Any Indebtedness of Company or any of its Subsidiaries held by
U.S. Borrower is hereby subordinated in right of payment to the Obligations on
the terms of this paragraph. Upon the occurrence and during the continuation of
an Event of Default, no distribution of assets in respect of any such
Indebtedness (including any payment of principal, interest or fees or any
repurchase, redemption or setoff of such Indebtedness against other Indebtedness
owing to U.S. Borrower or payment received as a result of other Indebtedness
being subordinated to such Indebtedness) may be made until indefeasible payment
in full in cash of all Obligations. If, notwithstanding the preceding
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sentence, any such distribution of assets shall be collected or received by U.S.
Borrower after the occurrence and during the continuation of an Event of
Default, such distribution of assets shall be paid over to Administrative Agent
for the benefit of Lenders to be held as collateral and then or thereafter
credited and applied against the Obligations but without impairing or limiting
in any manner the liability of U.S. Borrower under any other provision of this
Section 8.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon any failure
of Canadian Borrower or Australian Borrower to pay its Obligations when due
(whether by required prepayment, declaration, demand or otherwise) and
consequent acceleration of the Obligations pursuant to Section 7, any Agent and
any Lender, upon the consent of Administrative Agent and Requisite Lenders, is
hereby authorized by U.S. Borrower at any time or from time to time, without
notice to U.S. Borrower or to any other Person, any such notice being hereby
expressly waived to the extent permitted by applicable law, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time owing by such Agent or such Lender to or for the credit
or the account of U.S. Borrower against and on account of the obligations and
liabilities of U.S. Borrower to such Agent or such Lender under this U.S.
Borrower Guaranty, including, but not limited to, all such obligations and
liabilities with respect to all claims of any nature or description arising out
of or connected with this Agreement, this U.S. Borrower Guaranty or the Letters
of Credit or Bankers' Acceptances or any of the other Loan Documents,
irrespective of whether or not such Agent or such Lender or Administrative
Agent, with respect to any Obligation owed under the Letters of Credit, Bankers'
Acceptances or this Agreement, shall have made any demand hereunder.
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Section 9. AGENTS
9.1 Appointment.
Chase is hereby appointed Administrative Agent under this
Agreement and under the other Loan Documents by each Lender, Chase Canada is
hereby appointed Canadian Administrative Agent under this Agreement and under
the other Loan Documents by each Lender, Chase Securities Australia Limited is
hereby appointed Australian Administrative Agent under this Agreement and under
the other Loan Documents by each Lender and CIBC is hereby appointed
Documentation Agent under this Agreement and under the other Loan Documents by
each Lender. Each Lender hereby authorizes each Agent to act as its agents in
accordance with the terms of this Agreement and the other Loan Documents. Each
Agent agrees to act upon the express conditions contained in this Agreement and
the other Loan Documents, as applicable. Except as expressly set forth in this
Section 9, the provisions of this Section 9 are solely for the benefit of Agents
and Lenders, and neither Company nor any Borrower shall have any rights as a
third party beneficiary of any of the provisions hereof, but Company and
Borrowers shall have the rights expressly granted to them in subsection 9.6. In
performing its functions and duties under this Agreement, each Agent shall act
solely as an agent of Lenders and does not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or
for Company or any Borrower or any of Company's Subsidiaries.
9.2 Powers; General Immunity.
A. Duties Specified. Each Lender irrevocably authorizes each Agent to
take such action on such Lender's behalf and to exercise such powers under this
Agreement and under the other Loan Documents as are specifically delegated to
such Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Each Agent shall have only those duties and
responsibilities that are expressly specified in this Agreement and the other
Loan Documents and each such Agent may perform such duties by or through its
agents or employees. No Agent shall have, by reason of this Agreement or any of
the other Loan Documents, a fiduciary relationship in respect of any Lender; and
nothing in this Agreement or any of the other Loan
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Documents, express or implied, is intended to or shall be so construed as to
impose upon such Agent any obligations in respect of this Agreement or any of
the other Loan Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. No Agent shall be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statement or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made available by any Agent to Lenders or by or on behalf
of Company or Borrowers to such Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Company, any Borrower or any other Person
liable for the payment of any Obligations, nor shall any Agent be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or Bankers' Acceptances
or the use of Letters of Credit or as to the existence or possible existence of
any Event of Default or Potential Event of Default. Anything contained in this
Agreement to the contrary notwithstanding, no Agent shall have any liability
arising from confirmations of the amount of outstanding Loans or the Canadian
Letter of Credit Usage, the U.S. Letter of Credit Usage, the Australian Letter
of Credit Usage, the BA Usage or the component amounts thereof.
C. Exculpatory Provisions. No Agent and none of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by such Agent hereunder or in connection herewith except to the
extent caused by its or their gross negligence or willful misconduct, as finally
determined by a court of competent jurisdiction. If any Agent shall request
instructions from Lenders with respect to any act or action (including the
failure to take an action) in connection with this Agreement or any of the other
Loan Documents, such Agent shall be entitled to refrain from such act or taking
such action unless and until such Agent shall have received instructions from
Requisite Lenders or all Lenders, as the case
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may be. Without prejudice to the generality of the foregoing, (i) each Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
communication, instrument or document believed to be genuine and correct and to
have been signed or sent by the proper person or persons, and shall be entitled
to rely and shall be protected in relying on opinions and judgments of attorneys
(who may be attorneys for Company and Borrower and Company's Subsidiaries),
accountants, experts and other professional advisors selected by any of them;
and (ii) no Lender shall have any right of action whatsoever against any Agent
as a result of such Agent acting or (where so instructed) refraining from acting
under this Agreement or any of the other Loan Documents in accordance with the
instructions of Requisite Lenders or all Lenders, as the case may be. Each Agent
shall be entitled to refrain from exercising any power, discretion or authority
vested in it under this Agreement or any of the other Loan Documents unless and
until it has obtained the instructions of Requisite Lenders or all Lenders, as
the case may be.
D. Agents Entitled to Act as Lenders. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any duties
or obligations upon, any Agent in its individual capacity as a Lender under this
Agreement. With respect to its participation in the Loans, Letters of Credit and
Bankers' Acceptances, each Agent shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though it were
not performing the duties and functions delegated to it hereunder, and the term
"Lender" or "Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include each Agent in its individual capacity. Each Agent
and each of its Affiliates may accept deposits from, lend money to and generally
engage in any kind of banking, trust, financial advisory or other business with
Company, any Borrower or any of Company's Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from Company and Borrowers for services in connection with this
Agreement and otherwise without having to account for the same to Lenders.
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9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company,
each Borrower and Company's Subsidiaries in connection with the making of the
Loans hereunder and the issuance of Letters of Credit hereunder and such
Lender's purchasing of participations in such Letters of Credit and, in the case
of each Canadian Lender, the creation and purchase of Bankers' Acceptances, and
that it has made and shall continue to make its own appraisal of the
creditworthiness of Company, each Borrower and Company's Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or
the issuance of the Letters of Credit or the creation and purchase of Bankers'
Acceptances or at any time or times thereafter, and no Agent shall have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
9.4 Right to Indemnity.
The Lenders of each Lending Unit in proportion to their Lending
Unit's Pro Rata Share, severally with the Lenders of each other Lending Unit
agree to indemnify each Agent (and their respective directors, officers,
employees and agents), to the extent that such Agent (or any of their respective
directors, officers, employees and agents) shall not have been reimbursed by
Company or Borrowers, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements) or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against such Agent (or their respective directors, officers, employees
and agents) in performing its duties hereunder or under this Agreement or the
other Loan Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
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suits, costs, expenses or disbursements resulting from such Agent's (or any such
director's, officer's, employee's or agent's) gross negligence or willful
misconduct, as finally determined by a court of competent jurisdiction. If any
indemnity furnished to any Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.
9.5 Registered Persons Treated as Owners.
Each Agent may deem and treat the Persons listed as Lenders in
the Register as the owners of the corresponding Loans or participations in
Letters of Credit or Bankers' Acceptances listed therein for all purposes hereof
unless and until an Assignment and Acceptance effecting the assignment or
transfer thereof shall have been accepted by Administrative Agent and recorded
in the Register as provided in subsection 10.1B(ii) of this Agreement. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, transferee or
assignee of the corresponding Loan or participation in Letters of Credit or
Bankers' Acceptance.
9.6 Successor Agents.
Any Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders, Company and Borrowers, and such Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to Company, Borrowers, such Agent and
Administrative Agent as the case may be, and signed by Requisite Lenders. Upon
any such notice of resignation or any such removal, Requisite Lenders shall have
the right, upon five Business Days' notice to Company and Borrowers, to appoint
a successor Agent; provided that if such proposed successor Agent is not a
Lender, Company and Borrowers shall have the right to approve such appointment
(which approval may not be unreasonably withheld or delayed). Upon the
acceptance of any appointment as an Agent hereunder by a successor Agent, that
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and
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duties of the retiring or removed Agent and the retiring or removed Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring or removed Agent's resignation or removal hereunder as an Agent, the
provisions of this subsection 9.6 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was such an Agent under this
Agreement.
Section 10. MISCELLANEOUS
10.1 Assignments of and Participations in Commitments, Loans
and Letters of Credit; Fronting Banks.
A. General. Each Lender shall have the right at any time to (i) sell,
assign, transfer or negotiate to any Eligible Assignee which has (a) a Canadian
Lending Office or a fronting bank arrangement as provided below for borrowings
and payments relating to Canadian Loans and Bankers' Acceptances, (b) an
Australian Lending Office or a fronting bank arrangement as provided below for
borrowings and payments relating to Australian Loans and (c) a U.S. Lending
Office for borrowings and payments relating to U.S. Loans, or (ii) sell
participations to any Person in, all or any part of any Loan or Loans made by it
or its Commitments or its Letters of Credit or participations therein, or any
other interest herein or in any other Obligations owed to it; provided that no
such assignment or participation shall, without the consent of Company and
Borrowers, require Company or any Borrower to file a registration statement with
the Securities and Exchange Commission or apply to qualify such assignment or
participation under the securities laws of any jurisdiction; and provided,
further that for greater certainty, Bankers' Acceptances purchased by a Canadian
Lender may be held or sold by it in its absolute discretion as provided in
subsection 2.8E. Except as otherwise provided in this subsection 10.1, no Lender
shall, as between any Borrower and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or any granting of participations in, all or any part of the
Loans, the Commitments, Letters of Credit or participations therein or Bankers'
Acceptances or the other Obligations owed to such Lender.
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Each U.S. Lender or its Affiliates also may from time to time
enter into arrangements with one or more fronting banks to act with respect to
all or any portion of the Commitment of the Australian Lender or Canadian Lender
for its Lending Unit, which fronting banks shall be parties to this Agreement as
Australian Lender or Canadian Lender, respectively, for purposes of making
applicable Loans and receiving payments with respect thereto to the extent of
such portion of the Commitment. Any arrangements between any U.S. Lender or its
Affiliates and its fronting banks will not affect the rights and obligations
under this Agreement as between such Lender, on the one hand, and Company,
Borrowers, Agents and the other Lenders, on the other hand, including, without
limitation, any rights to consent to any amendment, modification or waiver of
this Agreement, or result in any stamp taxes or additional costs or expenses to
Company or Borrowers prior to the occurrence of an Event of Default; provided
that notwithstanding the foregoing such fronting banks and the U.S. Lender or
its Affiliates shall be entitled to the benefit of subsections 2.6, 10.2, 10.3
and 10.7. Any creation of or changes in any fronting bank arrangement shall be
effective upon receipt of notice by the Applicable Administrative Agent, Company
and Borrowers of such arrangement.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Loan, Commitment or
other Obligation to be assigned pursuant to subsection 10.1A may (a) be
assigned in any amount (of a constant and not a varying percentage) to
another Lender, or to an Affiliate of the assigning Lender or another
Lender, with the giving of notice to Company, Borrowers and
Administrative Agent or (b) be assigned in an amount (of a constant and
not a varying percentage) of not less than $5,000,000 (or such lesser
amount as shall constitute the aggregate amount of all Loans,
Commitments, Letters of Credit or participations therein, and other
Obligations of the assigning Lender) to any other Eligible Assignee
with the giving of notice to Company, Borrowers and Agents and in the
case of assignment to any other Eligible Assignee, with the consent of
Company, Borrowers and Administrative Agent for an assignment made by a
Lender other than Administrative Agent, and with the consent of Company
and Borrowers for an assignment made by Administrative Agent, which
consent of
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Company, Borrowers and Administrative Agent shall not be unreasonably
withheld, and which consent of Company and Borrowers shall not be
required upon the occurrence and during the continuance of an Event of
Default; provided that all such assignments by any Lender shall be
permitted only if the Canadian Lender, Australian Lender and U.S.
Lender of each Lending Unit simultaneously assign the same
proportionate shares of their outstanding Loans, partici-
pations in Letters of Credit, and Commitments to assignees that will
constitute the Canadian Lender, Australian Lender and the U.S. Lender
of a Lending Unit for the purposes of this Agreement. To the extent of
any such assignment in accordance with either clause (a) or (b) above,
the assigning Lender shall be relieved of its obligations with respect
to its Loans, Commitments, Letters of Credit or participations therein
or other Obligations or the portion thereof so assigned. The parties to
each such assignment shall execute and deliver to Administrative Agent,
for its acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee of $3,500,
and such certificates, documents or other evidence, if any, with
respect to United States federal, Canadian and Australian income tax
withholding matters as the assignee under such Assignment and
Acceptance may be required to deliver to Administrative Agent pursuant
to subsection 10.7B(iii). Upon such execution, delivery and acceptance,
from and after the effective date specified in such Assignment and
Acceptance, (y) 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, shall have the rights
and obligations of a Lender hereunder, and (z) the assigning Lender
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 or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto). The Commitments hereunder shall be modified to reflect the
Commitment of such assignee and any remaining Commitment of such
assigning Lender and, if any such assignment occurs after the issuance
of a Note or a
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Grid Gold Acknowledgement to the assigning Lender hereunder, if
requested pursuant to subsection 2.1E, new Notes and Grid Gold
Acknowledgements shall, upon surrender of the assigning Lender's Notes
or Grid Gold Acknowledgements, be issued to the assignee and to the
assigning Lender, substantially in the forms of Exhibit IV-A, Exhibit
IV-B, Exhibit IV-C or Exhibit V annexed hereto, as the case may be,
with appropriate insertions, to reflect the new Commitments of the
assignee and the assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register.
Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee meeting the requirements of subsection 10.1A, together with
the processing and recordation fee referred to in subsection 10.1B(i)
and any certificates, documents or other evidence with respect to
United States federal, Canadian and Australian income tax withholding
matters that such assignee may be required to deliver to Administrative
Agent pursuant to subsection 10.7B(iii), Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit X-A, Exhibit X-B, or Exhibit X-C
annexed hereto, as applicable and if Administrative Agent, Company and
Borrowers have consented to the assignment evidenced thereby (in each
case to the extent such consent is required pursuant to subsection
10.1B(i)), (a) accept such Assignment and Acceptance by executing a
counterpart thereof as provided therein (which acceptance shall
evidence any required consent of Administrative Agent to such
assignment), (b) record the information contained therein in the
Register, and (c) give prompt notice thereof to Company, Borrowers and
the Applicable Administrative Agent. Administrative Agent shall
maintain a copy of each Assignment and Acceptance delivered to and
accepted by it as provided in this subsection 10.1B(ii).
C. Participations. The holder of any participation, other
than an Affiliate of the Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any action hereunder
except action directly affecting (i) the extension of the regularly scheduled
maturity of any portion of the principal amount of or interest on any Loan or
any
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commitment fees allocated to such participation, (ii) the release of Company or
U.S. Borrower from its obligations under Section 8 or (iii) a reduction of the
principal amount of or the rate of interest payable on any Loan, a reduction in
the Face Amount, amount of discount or fee on any Bankers' Acceptance, or
payments due in repayment of draws under Letters of Credit allocated to such
participation, and all amounts payable by any Borrower or Company hereunder
shall be determined as if such Lender had not sold such participation. Company
and each Borrower hereby acknowledges and agrees that, only for purposes of
subsections 2.6D, 10.5 and 10.7, any participation will give rise to a direct
obligation of Borrowers and Company to the participant and the participant shall
be considered to be a "Lender"; provided that no participant shall be entitled
to receive any greater amount pursuant to subsection 2.6D or 10.7 than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation effected by such transferor Lender to such participant had
no such participation occurred. Company, Borrowers, Agents and the other Lenders
shall continue to deal solely with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
D. Information. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.21.
E. Federal Reserve Bank. Nothing in this subsection 10.1
shall prevent or prohibit any Lender from pledging its rights (but not its
obligations to make Loans and to issue or participate in Letters of Credit or to
create and purchase Bankers' Acceptances) under this Agreement and/or its Loans,
participations in Letters of Credit, Bankers' Acceptances and/or Notes hereunder
to a Federal Reserve Bank.
F. The Register.
(i) Administrative Agent and the Applicable
Administrative Agent shall maintain, at its Lending Office,
a register for the recordation of the names and addresses of
Lenders and the Commitments and Loans of each Lender from
time to time (the "Register"). Borrowers, Agents and
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Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by Company, any Borrower, any Agent
or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(ii) Administrative Agent and the Applicable Administrative Agent
shall record in the Register the Commitments and the Loans from time to
time of each Lender and each repayment or prepayment in respect of the
principal amount of the Loans of each Lender. Any such recordation
shall be conclusive and binding on Company and each Lender, absent
manifest error; provided that failure to make any such recordation, or
any error in such recordation, shall not affect any Borrower's
Obligations in respect of the applicable Loans.
(iii) Each Lender may record on its internal records (including,
without limitation, any promissory note described in subsection 2.1E)
the amount of each Loan made by it and each payment in respect thereof;
provided that in the event of any inconsistency between the Register
and any Lender's records, the recordations in the Register shall
govern, absent manifest error.
At the request of Company, Administrative Agent will provide to
Company not more than once a month, a copy of the Register.
G. Stamp Taxes and Other Duties, Expenses.
Notwithstanding any other provisions of this Agreement, Company and
Borrowers shall have no liability to pay stamp taxes, duties and other costs,
taxes, fees, charges or other expenses which may be assessed or incurred at the
time of, and as a result of, any assignment, participation or fronting
arrangement made pursuant to this subsection 10.1.
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10.2 Expenses.
Whether or not the transactions contemplated hereby shall be
consummated, Company and Borrowers jointly and severally agree to pay promptly
(i) all the actual and reasonable costs and expenses of preparation of the Loan
Documents; (ii) all the costs of furnishing all opinions by counsel for Company
or any Borrower (including, without limitation, any opinions reasonably
requested by Lenders as to any legal matters arising hereunder) and of Company's
or any Borrower's performance of and compliance with all agreements and
conditions on its part to be performed or complied with under this Agreement and
the other Loan Documents including, without limitation, with respect to
confirming compliance with environmental and insurance requirements; (iii) the
reasonable fees, expenses and disbursements of counsel to any Agent or Arranger
in connection with the negotiation, preparation, execution and administration of
the Loan Documents, the Letters of Credit, the Bankers' Acceptances and the
Loans and any consents, amendments, waivers or other modifications hereto or
thereto and any other documents or matters requested by Company or any Borrower;
(iv) all other actual and reasonable costs and expenses incurred by any Agent or
Arranger in connection with the negotiation, preparation and execution of the
Loan Documents and the transactions contemplated hereby and thereby; and (v)
after the occurrence and during the continuation of an Event of Default, all
costs and expenses, including reasonable attorneys' fees, excluding in-house
counsel, and costs of settlement, incurred by any Agent, Arranger and Lenders in
enforcing any Obligations of or in collecting any payments due from Company or
any Borrower hereunder or under the other Loan Documents by reason of such Event
of Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 Indemnity.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
Company and Borrowers jointly and severally agree to defend, indemnify, pay and
hold harmless each Agent, Arranger and Lenders, and the officers, directors,
employees, counsel, agents and affiliates of such Agent, Arranger
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and Lenders (collectively called the "Indemnitees") from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, the reasonable fees and disbursements
of counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened by any Person,
whether or not any such Indemnitee shall be designated as a party or a potential
party thereto), whether based on any federal, state or foreign laws, statutes,
rules or regulations (including, without limitation, securities and commercial
laws, statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby (including, without limitation, Lenders'
agreement to make the Loans or create and purchase Bankers' Acceptances
hereunder or the use or intended use of the proceeds of any of the Loans or
Bankers' Acceptances or the issuance of Letters of Credit hereunder and Lenders'
agreement to purchase participations therein as provided for herein, or the use
or intended use of the Letters of Credit) or the statements contained in any
commitment letter delivered by any Lender to Company or any Borrower with
respect thereto (collectively called the "Indemnified Liabilities"); provided
that neither Company nor any Borrower shall have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise from the gross negligence or willful
misconduct of that Indemnitee as finally determined by a court of competent
jurisdiction; provided further, that, subject to the hold harmless provisions of
this subsection 10.3, Company shall be subrogated to all rights that any such
Indemnitee may have in respect of any person or persons whose acts or failure to
act resulted in the indemnified liability and the Indemnitee shall, upon receipt
of payment for all Indemnified Liabilities payable to such Indemnitee, assign to
Company the rights with respect to such Indemnified Liabilities such Indemnitee
may have against any person or persons whose acts or failure to act resulted in
the indemnified liability; and provided still further that any exercise of
rights of subrogation shall be withheld until payment of all of the related
Indemnified Liabilities. To the extent that the undertaking to defend,
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indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Company and
each Borrower shall contribute the maximum portion that it is permitted to pay
and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by the Indemnitees or any of them, subject
however to the limitations contained in the last clause of the preceding
sentence.
10.4 Set Off.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Agent and each Lender is hereby
authorized by Company and each Borrower at any time or from time to time,
without notice to Company or such Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other Indebtedness at any time held or
owing by such Agent or such Lender to or for the credit or the account of
Company or such Borrower, as the case may be, against and on account of the
obligations and liabilities then due and payable of Company or such Borrower, as
the case may be, to such Agent or such Lender under this Agreement, and any
Notes, any Grid Gold Acknowledgements, any Letters of Credit and participations
therein, and any Bankers' Acceptances, including, but not limited to, all claims
of any nature or description arising out of or connected with this Agreement,
the Notes, the Grid Gold Acknowledgements, the Letters of Credit and
participations therein, any Bankers' Acceptances or any other Loan Document,
irrespective of whether or not such Agent or such Lender shall have made any
demand hereunder.
10.5 Ratable Sharing.
Lenders hereby agree among themselves that if any of them
shall, whether by voluntary payment, by realization upon security, through the
exercise of any right of set-off or banker's lien, by counterclaim or cross
action or by the enforcement of any right under the Loan Documents or under
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Letters of Credit or Banker's Acceptances or otherwise, or as adequate
protection of a deposit treated as cash collateral under the Bankruptcy Code,
receive payment or reduction of a proportion of the aggregate amount of
Obligations then due and owing to that Lender (collectively, the "Aggregate
Amounts Due" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company, any Borrower or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Company and each Borrower
expressly consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's lien,
set-off or counterclaim with respect to any and all monies owing by Company or
such Borrower to that holder with respect thereto as fully as if that holder
were owed the amount of the participation held by that holder.
10.6 Amendments and Waivers.
No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes or consent to any departure by
Company or any Borrower therefrom, shall in any event be effective without the
written concurrence of Requisite Lenders; provided that any amendment,
modification, termination or waiver of or with respect to: the amount of the
Commitments or the principal amount of the Loans or interest accrued thereon;
each Lender's Pro Rata Share; the definitions of "Requisite Lenders," "Bankers'
Acceptances Purchase Price" (to the extent such change in definition results in
an increase of such purchase
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price) and "Commitment Termination Date"; any provision expressly requiring the
approval or concurrence of all Lenders; the scheduled final maturity dates of
the Loans or the maturity dates of any Bankers' Acceptances; the dates on which
interest or any fees are payable; decreases in the interest rate margins borne
by the Loans; decreases in the amount or type of any fee on any Bankers'
Acceptances; decreases of any amounts payable in respect of the Letters of
Credit pursuant to subsections 2.7E(i) and (ii) or in the amount of any fees
payable to all Lenders hereunder; the maximum duration of Interest Periods, the
provisions of Section 8 or any release of Company or U.S. Borrower from its
guaranty obligations thereunder; and the provisions contained in subsection 7.1
and this subsection 10.6 shall be effective only if evidenced by a writing
signed by or on behalf of all Lenders. In addition, (i) any amendment,
modification, termination or waiver of any of the provisions contained in
Section 3 shall be effective only if evidenced by a writing signed by or on
behalf of Administrative Agent and Requisite Lenders, (ii) no amendment,
modification, termination or waiver of any provision of any Note, Bankers'
Acceptance or Grid Gold Acknowledgement shall be effective without the written
concurrence of the holder of that Note, Bankers' Acceptance or Grid Gold
Acknowledgement, and (iii) no amendment, modification, termination or waiver of
any provision of Section 9 or of any other provision of this Agreement expressly
requiring the approval or concurrence of any Agent shall be effective without
the written concurrence of such Agent. Administrative Agent may, but shall have
no obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on Company or any
Borrower in any case shall entitle Company or any Borrower to any other or
further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
subsection 10.6 shall be binding upon each Lender at the time outstanding, each
future Lender and, if signed by Company or any Borrower, on Company and such
Borrower, as the case may be.
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10.7 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs and Taxes. If any Lender shall
determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority in each case that is
adopted after the Effective Date or compliance by such Lender with any
guideline, request or directive issued or made after the Effective Date by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law):
(i) subjects such Lender (or its Lending Office) to any
additional Tax (other than any Excluded Taxes) with respect to this
Agreement or any of the Loans, Letters of Credit (or participations
therein), or Bankers' Acceptances or any of its obligations hereunder,
or changes the basis of taxation of payments to such Lender (or its
Lending Office) of any Obligation (except for changes in Excluded
Taxes);
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or
other reserve), special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or other
credit extended by, or any other acquisition of funds by, any office of
such Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the definition
of Adjusted Eurodollar Rate); or
(iii) imposes any other condition on or affecting such Lender (or
its applicable Lending Office) or its obligations hereunder or the
London interbank market, precious metals market, bankers' acceptances
market or bills of exchange market;
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and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans, Letters of Credit (or
participations therein) or Bankers' Acceptances hereunder or to reduce any
amount received or receivable by such Lender (or its Lending Office) with
respect thereto; then, in any such case, Borrowers and Company shall be jointly
and severally obligated to promptly pay to such Lender, upon written demand and
receipt of the written notice referred to below, such additional amount or
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to compensate such Lender on an after-tax basis
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company and Borrowers a written notice,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Lender under this subsection 10.7A, which statement shall
be conclusive and binding upon all parties hereto absent manifest error.
Notwithstanding anything contained in this subsection 10.7A or
subsection 10.7B, if any Lender is unable to make any Loans in the applicable
currency or in Gold and (i) such inability is not due to circumstances described
in subsection 2.6A or 2.6B or any other similar circumstances and (ii) such
Lender has not entered into arrangements with a fronting bank (which
arrangements will not affect the rights and obligations under this Agreement as
between such Lender, on the one hand, and Company, Borrowers, Agents and the
other Lenders, on the other hand) which will make such Loans in the applicable
currency or in Gold, as the case may be, on behalf of such Lender), then any
withholding taxes or any other costs directly resulting from such inability
shall be for the account of such Lender.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by
Borrowers and Company under this Agreement and the other Loan Documents
to such Lender shall be paid free and clear of and without any
deduction or withholding on account of any Covered Tax imposed, levied,
collected, withheld or assessed by or within the United States of
America, Australia or Canada or any political subdivision in or of
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the United States of America, Australia or Canada or any other
jurisdiction from which a payment is made by or on behalf of Company or
any Borrower or by any federation or organization of which the United
States of America, Australia or Canada or any such jurisdiction is a
member at the time of payment.
(ii) Withholding in respect of Payments. If Company, any Borrower
or any other Person is required by law to make any deduction or
withholding on account of any Covered Tax from any sum paid or payable
by Company or such Borrower to any Agent, Arranger or any Lender under
any of the Loan Documents:
(a) Company and Borrowers shall notify
Administrative Agent of any such requirement or any
change in any such requirement as soon as Company or any
Borrower becomes aware of it;
(b) Company or such Borrower, as the case may be,
shall pay any such Covered Tax before the date on which
penalties attach thereto, such payment to be made (if the
liability to pay is imposed on Company or such Borrower) for
its own account or (if that liability is imposed on such Agent,
Arranger or such Lender, as the case may be) on behalf of and
in the name of such Agent, Arranger or such Lender;
(c) the sum payable by Company or such Borrower in
respect of which the relevant deduction, withholding or payment
is required shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or
payment, such Agent, Arranger or such Lender, as the case may
be, receives on the due date and retains (free from any
liability in respect of any such deduction, withholding or
payment) a net sum equal to what it would have received and so
retained had no such deduction, withholding or payment in
respect of Covered Taxes been required or made; and
(d) within 30 days after paying any sum from which
it is required by law to make any deduction or
withholding, and within 30 days after the due date of
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payment of any Tax which it is required by clause (b) above to
pay, Company and Borrowers shall deliver to Administrative
Agent evidence reasonably satisfactory to the other affected
parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority;
(iii) U.S. Tax Certificates. Each Lender that is organized under the
laws of any jurisdiction other than the United States or any state or
other political subdivision thereof shall deliver to Administrative
Agent for trans- mission to Company and Borrowers, on or prior to the
Effective Date (in the case of each Lender listed on the signature
pages hereof) or on the date of the Assignment and Acceptance pursuant
to which it becomes a Lender (in the case of each other Lender), and
at such other times as may be necessary in the determination of
Company or any Borrower or Administrative Agent (each in the
reasonable exercise of its discretion), such certificates, documents
or other evidence, properly and accurately completed and duly executed
by such Lender (including, without limitation, Internal Revenue
Service Form 1001 or Form 4224 or any other certificate or statement
of exemption required by Treasury Regulations Section 1.1441-4(a) or
Section 1.1441-6(c) or any successor thereto) to establish that such
Lender is not subject to deduction or withholding of United States
federal income tax under Section 1441 or 1442 of the Internal Revenue
Code or otherwise (or under any comparable provisions of any successor
statute) and each Lender shall deliver to Administrative Agent for
transmission to Company and Borrowers any such additional
certificates, documents or other evidence as may at such time be
required by applicable United States, Australian or Canadian federal
or state or provincial law if required to establish that such Lender
is not subject to deduction or withholding under United States,
Australian or Canadian tax laws with respect to any payments to such
Lender of principal, interest, fees or other amounts payable under any
of the Loan Documents. Neither Company nor any Borrower shall be
required to pay any additional amount to any such Lender under clause
(c) of subsection 10.7B(ii) if such Lender shall have failed to
satisfy the requirements of the immediately preceding sentence;
provided that if such Lender shall have satisfied such requirements
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on or prior to the Effective Date (in the case of each Lender listed on
the signature pages hereof) or on the date of the Assignment and
Acceptance pursuant to which it became a Lender (in the case of each
other Lender), nothing in this subsection 10.7B(iii) shall relieve
Company or any Borrower of any obligation to pay any additional amounts
pursuant to clause (c) of subsection 10.7B(ii) in the event that, as a
result of any change in applicable law after the Effective Date or the
date of the applicable Assignment and Acceptance, as the case may be,
such Lender is no longer properly entitled to deliver certificates,
documents or other evidence at a subsequent date establishing the fact
that such Lender is not subject to withholding as described in the
immediately preceding sentence.
C. Capital Adequacy Adjustment. If any Lender shall have
determined in good faith that the adoption, effectiveness, phase- in or
applicability (excluding any adoption, effectiveness, phase-in or applicability
published as of the Effective Date and currently scheduled to take effect) after
the Effective Date of any law, rule or regulation (or any provision thereof)
regarding capital adequacy, or any change therein or in the interpretation or
administration thereof after the Effective Date by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its applicable lending
office) with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of, or with reference to, such Lender's Loans or
Commitments or Letters of Credit or participations therein or Bankers'
Acceptances or other obligations hereunder to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase- in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within ten Business
Days after written demand by such Lender (with a copy of such demand to
Administrative Agent), Company and Borrowers shall pay to such Lender such
additional
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amount or amounts as will compensate such Lender or such controlling corporation
for such reduction.
10.8 Lenders' Obligation to Mitigate; Replacement of Lender.
Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering the Loans under this
Agreement becomes aware of the occurrence of an event or the existence of a
condition that would cause such Lender to become an Affected Lender as provided
in subsection 2.6C or that would entitle such Lender to receive payments under
subsection 10.7A or 10.7C, it will, to the extent not inconsistent with such
Lender's internal policies, use reasonable efforts (i) to make, fund or maintain
the Commitments of such Lender or the affected Loans or Bankers' Acceptances of
such Lender through another lending office of such Lender, or (ii) to take such
other measures as such Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender as provided
in subsection 2.6C would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender pursuant to subsection 10.7A or
10.7C would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, funding or maintaining of such Commitments or Loans
or Bankers' Acceptances through such other lending office or in accordance with
such other measures, as the case may be, would not otherwise adversely affect
such Commitments or Loans or Bankers' Acceptances or the interests of such
Lender; provided that such Lender will not be obligated to utilize such other
lending office pursuant to this subsection 10.8 unless Borrowers agree to pay
all reasonable expenses incurred by such Lender in utilizing such other lending
office. A certificate as to the amount of any such expenses payable by Borrowers
pursuant to this subsection 10.8 (setting forth in reasonable detail the basis
for requesting such amount) submitted by such Lender to Borrowers shall be
conclusive absent manifest or demonstrable error.
If any Lender becomes entitled to receive payments under
subsection 10.7A or 10.7C, Borrowers have the right at any time to treat such
Lender as an Affected Lender and to substitute one or more Eligible Assignees
for such Lender as provided in subsection 2.6C.
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10.9 Independence of Covenants.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
10.10 Notices.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telecopied, telexed or sent by United States,
Australian or Canadian mail or courier service and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of telecopy
or telex if delivered or received on a Business Day or on the first Business Day
after delivery or receipt if delivered or received on a day that is not a
Business Day. For the purposes hereof, the address of each party hereto shall be
as set forth under such party's name on the signature pages hereof or (i) as to
Company, any Borrower, any Agent and Arranger, such other address as shall be
designated by such Person in a written notice delivered to the other parties
hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
10.11 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein, shall
survive the execution and delivery of this Agreement, the making of the Loans
hereunder, the issuance of the Letters of Credit and the creation and purchase
of Bankers' Acceptances.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 10.2, 10.3,
10.4, 10.7, 10.13 and 10.24 and the agreements of Lenders set forth in
subsections 9.2C, 9.4, 10.4, 10.5, 10.7B(iii), and 10.24 shall survive, but this
Agreement
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shall otherwise terminate, upon the termination of the Commitments, payment of
all Obligations (other than contingent amounts pursuant to subsections 2.6D,
10.2, 10.3, 10.7 and 10.24 not at such time claimed or due and payable), the
cancellation or expiration of the Letters of Credit, the cancellation or
maturity of all Bankers' Acceptances and the reimbursement of any amounts drawn
thereunder; provided that this Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by any Agent or any
Lender upon the bankruptcy or reorganization of Company or any Borrower or
otherwise.
10.12 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of any Lender in the exercise
of any power, right or privilege hereunder or under a Loan, Note, Letter of
Credit or Bankers' Acceptances shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other power, right or privilege. All
rights and remedies existing under this Agreement, the Notes, the Letters of
Credit, the Bankers' Acceptances and the other Loan Documents are cumulative to,
and not exclusive of, any rights or remedies otherwise available.
10.13 Marshalling; Payments Set Aside.
Neither any Agent, Arranger nor any Lender shall be under any
obligation to marshal any assets in favor of Company, any Borrower or any other
party or against or in payment of any or all of the Obligations. To the extent
that Company or any Borrower makes a payment or payments to any Agent, Arranger
or Lenders, or any Agent or Lenders enforce any security interests or exercise
their rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, any other state
or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens,
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rights and remedies therefor or related thereto, shall be revived and continued
in full force and effect as if such payment or payments had not been made or
such enforcement or setoff had not occurred.
10.14 Severability.
In case any provision in or obligation under this Agreement,
the Notes, the Bankers' Acceptances or the Grid Gold Acknowledgments shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.15 Obligations Several; Independent Nature of Lenders'Rights.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be, subject to Section 7,
entitled to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Lender to be joined as an additional party
in any proceeding for such purpose.
10.16 Headings.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.17 Applicable Law.
THIS AGREEMENT AND THE NOTES AND THE LEGAL RELATIONS
AMONG THE PARTIES SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
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OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICES FOR DOCUMENTARY CREDITS (1993) REVISION, INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK. EACH
BANKERS' ACCEPTANCE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF CANADA.
10.18 Successors and Assigns.
This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Agents, Arranger and Lenders.
The terms and provisions of this Agreement shall inure to the benefit of any
assignee or transferee of any of the Obligations, and in the event of any such
transfer or assignment the rights and privileges herein conferred upon Agents,
Arranger and Lenders shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. Neither
Company's nor any Borrower's rights or obligations hereunder nor any interest
therein may be assigned or delegated by Company or any Borrower without the
prior written consent of all Lenders. Lenders' rights of assignment are subject
to subsection 10.1.
10.19 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OBLIGATION
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH PARTY
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, SUCH OTHER LOAN
DOCUMENT OR SUCH OBLIGATION. Company and each Borrower designates and appoints
CT Corporation System, and such other Persons as may hereafter be selected by
Company and each Borrower irrevocably
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agreeing in writing to so serve, as its agent to receive on its behalf service
of all process in any such proceedings in any such court, such service being
hereby acknowledged by Company and each Borrower to be effective and binding
service in every respect. A copy of any such process so served shall be mailed
by registered mail to Company at its address as provided in subsection 10.10;
provided that, unless otherwise provided by applicable law, any failure to mail
such copy shall not affect the validity of service of such process. If any agent
appointed by Company or any Borrower refuses to accept service, Company and each
Borrower hereby agree that service of process sufficient for personal
jurisdiction in any action against Company or any Borrower may be made by
registered or certified mail, return receipt requested, to Company at its
address as provided in subsection 10.10, and Company and each Borrower hereby
acknowledge that such service shall be effective and binding in every respect if
timely received. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of any party to bring
proceedings against any party in the courts of any other jurisdiction.
10.20 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR
THE LENDER/ BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including, without limitation, contract claims, tort claims, breach of duty
claims and all other common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to enter into a business
relationship, that each has already relied on this waiver in entering into this
Agreement, and that each will continue to rely on this waiver in their related
future dealings. Each party hereto further warrants and represents that it has
reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING,
174
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE OBLIGATIONS. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
10.21 Confidentiality.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential by Company or any Borrower in accordance with such Lender's
customary procedures for handling its own confidential information of this
nature and in accordance with safe and sound banking practices, it being
understood and agreed by Company and Borrowers that Lenders may disclose such
information (i) to their accountants and legal counsel in connection with their
ongoing review of the credit extended under this Agreement and (ii) to any bona
fide or prospective assignee, transferee or participant in connection with the
contemplated assignment or transfer by such Lender of any Loans, Bankers'
Acceptances, participations in Letters of Credit or any partici- pation therein
or as required (provided that in each case of disclosure under (i) and (ii), the
disclosing party shall advise such persons of the non-public nature of the
information and secure from such persons in advance of disclosure that such
persons will treat the information as confidential in accordance with its
customary procedures for handling confidential information, subject to the
disclosure provisions herein), (iii) to any governmental agency or
representative thereof upon its reasonable request, or (iv) pursuant to legal
process (provided that in the case of disclosure under (iii) (other than
regulatory reviews in the ordinary course of business) and (iv), the disclosing
party shall advise Company (unless such disclosure is prohibited by such
governmental agency or legal process) of such intended disclosure as soon as
possible in advance if feasible and otherwise as soon as possible thereafter and
shall cooperate with Company, at Company's expense, in any reasonable effort by
Company to prevent disclosure of such information); provided that in no event
shall any Lender be obligated or required to return any materials furnished by
Company or any of its Subsidiaries.
175
10.22 Entire Agreement.
This Agreement, taken together with all of the other Loan
Documents and all certificates and other documents delivered by Company to
Administrative Agent and Lenders pursuant to the Loan Documents, and any letters
among Company, Borrowers, any Agent and/or Arranger relating to fees, embodies
the entire agreement and supersedes all prior agreements, written and oral,
relating to the subject matter hereof.
10.23 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
10.24 Judgment Currency.
If for the purposes of obtaining a judgment in any court it is
necessary to convert a sum due hereunder or under any other Loan Document 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 the rate of exchange used in calculating
Dollar Equivalents on the Business Day preceding that on which final judgment is
given. The obligation of Company and each Borrower in respect of any sum due in
the Original Currency from it to any Agent or any Lender hereunder or under any
other Loan Document shall, notwithstanding any judgment in any Other Currency,
be discharged only to the extent that on the Business Day following receipt by
such Agent or such Lender of any sum adjudged to be so due in such Other
Currency such Agent or such Lender may in accordance with normal banking proce-
176
dures purchase the Original Currency with such Other Currency; if the amount of
the Original Currency so purchased is less than the sum originally due to such
Lender in the Original Currency, Company and Borrowers agree, as a separate
obligation and notwithstanding any such judgment, to indemnify such Agent or
such Lender against such loss, and if the amount of the Original Currency so
purchased exceeds the sum originally due to any Lender in the Original Currency,
such Agent or such Lender agrees to remit to Company or the applicable Borrower,
as the case may be, such excess.
10.25 Change in Control.
A. If individuals who on the Effective Date were members of
the board of directors of Company (together with any new directors whose
election to such board of directors or whose nomination for election by the
shareholders of Company was approved by a vote of a majority of the directors
then still in office who were either directors on the Effective Date or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of such board of directors then in office; or if
a "Change of Control" as defined in the indenture pursuant to which the
Subordinated Debentures have been issued shall have occurred; or if any Person
or any two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Exchange Act), directly or indirectly, of Securities of
Company (or other Securities convertible into such Securities) representing 30%
or more of the combined voting power of all Securities of Company entitled to
vote in the election of directors, there shall be deemed to have occurred a
"Company Change of Control."
B. If a Change of Control shall occur, automatically and
without any notice to Company and Borrowers, all Commitments and obligations of
Lenders hereunder shall terminate, and two Business Days thereafter, all
Obligations under this Agreement shall become payable in full, including any
amounts that may be due pursuant to subsection 2.6D. Failure to pay all
Obligations on the date due and failure to secure the cancellation of all
Letters of Credit and Bankers' Acceptances then outstanding shall constitute an
Event of Default.
177
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
Company:
HOMESTAKE MINING COMPANY
By:
Title:
Notice Address:
Homestake Mining Company
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Treasurer
Fax: (000) 000-0000
U.S. Borrower:
HOMESTAKE MINING COMPANY OF CALIFORNIA
By:
Title:
Notice Address:
Homestake Mining Company of California
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Treasurer
Fax: (000) 000-0000
S-1
Canadian Borrower:
HOMESTAKE CANADA INC.
By:
Title:
Notice Address:
Homestake Canada Inc.
c/o Homestake Mining Company
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Treasurer
Fax: (000) 000-0000
Australian Borrower:
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:
Title:
Notice Address:
Homestake Gold of Australia Limited
c/o Homestake Mining Company
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Treasurer
Fax: (000) 000-0000
S-2
LENDERS:
THE CHASE MANHATTAN BANK, individually, as
a U.S. Lender, as an Issuing Lender, and as
Administrative Agent
By:
Title:
Notice Address:
The Chase Manhattan Bank
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to
Agent Bank Services Group
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
Fax: (000) 000-0000
THE CHASE MANHATTAN BANK OF CANADA,
individually, as a Canadian Lender, as an
Issuing Lender, and as Canadian Administra-
tive Agent
By:
Title:
Notice Address:
The Chase Manhattan Bank of Canada
000 Xxxx Xxxxxx Xxxx 16th Floor
Box 68
Toronto Ontario M5H 1J9 Canada
S-3
CHASE SECURITIES AUSTRALIA LIMITED,
as Australian Administrative Agent
By:
Title:
Notice Address:
Xxxxx 00, XXX Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx 0000, Xxxxxxxxx
THE CHASE MANHATTAN BANK, as an Australian
Lender
By:
Title:
Notice Address:
Xxxxx 00, XXX Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx 0000, Xxxxxxxxx
CANADIAN IMPERIAL BANK OF COMMERCE,
individually, as a U.S. Lender, and as
Documentation Agent
By:
Title:
Notice Address:
S-4
Canadian Imperial Bank of Commerce
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Canadian Lender
By:
Title:
Notice Address:
Canadian Imperial Bank of Commerce
Commerce Court West 3
Toronto, Ontario M5L 1A2
CIBC AUSTRALIA LIMITED, as an Australian
Lender
By:
Title:
Notice Address:
[TO COME]
ARRANGER:
S-5
CHASE SECURITIES INC., as Arranger
By:
Title:
Notice Address:
[TO COME]
S-6
EXHIBIT I
FORM OF NOTICE OF BORROWING
Pursuant to that certain Credit Agreement dated as of September
20, 1996, as amended to the date hereof (said Credit Agreement, as so amended,
being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among Homestake
Mining Company, a Delaware corporation ("Company"), Homestake Mining Company of
California, a California corporation ("U.S. Borrower"), Homestake Canada Inc.,
an Ontario corporation ("Canadian Borrower"), Homestake Gold of Australia
Limited, a South Australia corporation ("Australian Borrower"), the financial
institutions listed therein as Lenders ("Lenders"), The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders ("Canadian Administrative
Agent"), Chase Manhattan Securities Limited, as Australian Administrative Agent
for Lenders ("Australian Administrative Agent"), Chase Securities Inc., as
Arranger for Lenders ("Arranger"), The Chase Manhattan Bank, as Administrative
Agent for Lenders ("Administrative Agent"), and Canadian Imperial Bank of
Commerce, as Documentation Agent for Lenders ("Documentation Agent"), this
represents the request of [U.S. Borrower/Canadian Borrower/Australian Borrower]
(hereinafter the "Applicable Borrower") to borrow on _____________, ____ (the
"Funding Date") from [U.S./Canadian/Australian] Lenders, in accordance with
their applicable Pro Rata Shares, Loans in the amount of
[$/Cdn.$/A.$____________/____ Ounces of Gold], which Loans shall be [U.S. Base
Rate/U.S. Base Rate (Canada)/Canadian Base Rate/Eurodollar Rate/Bank Xxxx Swap
Rate/Gold] Loans.
[This further represents the Applicable Borrower's request that
[the amount of the Gold Loan hereby requested be converted into Dollars based on
the Price of Gold in effect the second Business Day preceding the Funding
Date/Gold constituting such Loan be delivered to the Applicable Borrower]. The
Applicable Borrower hereby requests that the interest on such Gold Loan be
payable in [Dollars/Gold] based on the [average of the daily values of such
Loan, in Dollar Equivalents/the Price of Gold on the second Business Day
preceding the Funding Date.]
[The initial Interest Period for such Loans is requested to be
a [one/two/three/six month] [30/60/90/180 day] period.]
The proceeds of such Loans are to be deposited in the
Applicable Borrower's [account at Administrative Agent's
[Canadian/U.S./Australian] Lending Office/bullion account maintained with
_________________, at its office located at________________].
I-1
The undersigned officer/director, to the best of his or her
knowledge, and the Applicable Borrower certify that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete
in all material respects on and as of the date hereof to the same
extent as though made on and as of the date hereof, except to the
extent that changes in the facts and conditions on which such
representations and warranties were based are required or permitted
under the Credit Agreement;
(ii) No event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby that would
constitute an Event of Default or a Potential Event of Default;
(iii) The Company and each Borrower have performed in all
material respects all agreements and satisfied all conditions which the
Credit Agreement and other Loan Documents provide shall be performed or
satisfied by it on or before the date hereof;
(iv) There is no pending or, to the knowledge of Company or any
Borrower, threatened, action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and
there has occurred no development in any such action, suit, proceeding,
governmental investigation or arbitration that, in either event, would
reasonably be expected to have a Material Adverse Effect, unless
disclosed to and consented to by Requisite Lenders; and no injunction
or other restraining order has been issued and no hearing to cause an
injunction or other restraining order to be issued is pending or
noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated
by the Credit Agreement or the making of Loans, the issuance of Letters
of Credit or the creation and purchase of Bankers' Acceptances
thereunder;
(v) No Company Change of Control has occurred; and
(vi) After giving effect to the proposed Loan, the Borrowers
are in compliance with each of the clauses (a) through (i) set forth in
subsection 2.1A.
DATED: __________ [HOMESTAKE MINING COMPANY OF
CALIFORNIA/HOMESTAKE CANADA
INC./HOMESTAKE GOLD OF AUSTRALIA
LIMITED]
I-2
By: __________________________
Title: ________________________
I-1
EXHIBIT II
FORM OF NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Credit Agreement dated as of September
20, 1996, as amended to the date hereof (said Credit Agreement, as so amended,
being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among Homestake
Mining Company, a Delaware corporation ("Company"), Homestake Mining Company of
California, a California corporation ("U.S. Borrower"), Homestake Canada Inc.,
an Ontario corporation ("Canadian Borrower"), Homestake Gold of Australia
Limited, a South Australia corporation ("Australian Borrower"), the financial
institutions listed therein as Lenders ("Lenders"), The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders ("Canadian Administrative
Agent"), Chase Manhattan Securities Limited, as Australian Administrative Agent
for Lenders ("Australian Administrative Agent"), Chase Securities Inc., as
Arranger for Lenders ("Arranger"), The Chase Manhattan Bank, as Administrative
Agent for Lenders ("Administrative Agent"), and Canadian Imperial Bank of
Commerce, as Documentation Agent for Lenders ("Documentation Agent"), this
represents [U.S. Borrower's/Canadian Borrower's/Australian Borrower's] request
to [Select A or B: [A: convert $_________ in principal amount of presently
outstanding Loans that are [U.S. Base/U.S. Base (Canada)/Canadian
Base/Eurodollar] Rate Loans to [U.S. Base/U.S. Base (Canada)/Canadian
Base/Eurodollar] Rate Loans on ____________, ____. [The initial Interest Period
for such Eurodollar Rate Loans is requested to be a [one/two/three/six] month
period.]] [B: continue as [Eurodollar/ Gold/Bank Xxxx Swap] Rate Loans
[$_________/________Ounces] in principal amount of presently outstanding Loans
with a final Interest Payment Date of ____________, ____. The Interest Period
for such [Eurodollar/Gold/Bank Xxxx Swap] Rate Loans commencing on such final
Interest Payment Date is requested to be a [one/two/three/six month]
[30/60/90/180 day] period.] [The [U.S./Canadian/Australian] Borrower hereby
requests that the Interest on such Gold Loan be payable in [Dollars/Gold] based
on the [average of the daily values of such Loan, in Dollar Equivalents/the
Price of Gold on the second Business Day preceding the first day of the Interest
Period hereby requested].]
[For Conversions to Eurodollar Rate Loans or Continuations of
Eurodollar/Gold/Bank Xxxx Swap Rate Loans (other than continuations of Loans by
Australian Borrower) Only: The undersigned officer, to the best of his or her
knowledge, and [U.S. Borrower/Canadian Borrower/Australian Borrower] certify
that no Event of Default or Potential Event of Default has occurred and is
continuing under the Credit Agreement.]
II-2
DATED: __________ [HOMESTAKE MINING COMPANY OF
CALIFORNIA/HOMESTAKE CANADA
INC./HOMESTAKE GOLD OF AUSTRALIA
LIMITED]
By: __________________________
Title: ________________________
II-3
EXHIBIT III-A
[FORM OF DRAFT]
BANKERS' ACCEPTANCE Due _______________ 19__
ACCEPTATION BANCAIRE Echeant le
NO. B.A. IL.0000
_____________, Canada
____________________ 19__
On/Le ___________________ 19__ without grace, for value received, pay to the
order of the undersigned drawer the sum of/sans jours de grace et contra valeur,
payez a l'ordre du tireur soussigne la somme de ____________________ dollars
($_____________)
To/A - [Name of Lender]
___________, Canada
HOMESTAKE CANADA INC.
Per:
par:_______________________
Authorized signature
Signature Autorisee
[FORM OF ACCEPTANCE]
ACCEPTED/ACCEPTE
date/le________________________________________________19__
Payable at [INSERT LOCATION]/payable a ________
[Name of Lender]
Per:
par:____________________
Authorized signature
Signature Autorisee
Per:
par:____________________
Authorized Signature
Signature Autorisee
1
EXHIBIT III-B
[FORM OF DRAWING NOTICE]
__________, _____
The Chase Manhattan Bank, as Administrative Agent
Attention: _____________________________
and
The Chase Manhattan Bank of Canada, as Canadian Administrative Agent
Attention: _____________________________
Ladies and Gentlemen:
Pursuant to that certain Credit Agreement dated as of September
20, 1996, as amended to the date hereof (said Credit Agreement, as so amended,
being the "Credit Agreement," the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among Homestake
Mining Company, a Delaware corporation ("Company"), Homestake Mining Company of
California, a California corporation, Homestake Canada Inc., an Ontario
corporation ("Canadian Borrower"), Homestake Gold of Australia Limited, a South
Australia corporation, the financial institutions listed therein as Lenders, The
Chase Manhattan Bank of Canada, as Canadian Administrative Agent for Lenders,
Chase Manhattan Securities Limited, as Australian Administrative Agent for
Lenders, Chase Securities Inc., as Arranger for Lenders, The Chase Manhattan
Bank, as Administrative Agent for Lenders, and Canadian Imperial Bank of
Commerce, as Documentation Agent for Lenders, this represents the undersigned
Canadian Borrower's notice, given pursuant to subsection 2.8B of the Credit
Agreement, requesting a Drawing under the Credit Agreement on the date, in the
amount and having the term set forth below:
1. The Drawing Date, which is a Business Day, is
___________, _____;
2. The aggregate Face Amount of Drafts to be accepted is
Cdn. $_______________; and
1
3. The maturity date for such Drafts is ___________,
____, which represents a term to maturity of approxi-
mately [30/60/90/120/180] days.
The undersigned officers, to the best of their knowledge, and
the undersigned Canadian Borrower and Company, each hereby certifies that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents (which representations and
warranties in the case of any Canadian Borrower shall be limited to
such Canadian Borrower and its Subsidiaries) are true, correct and
complete in all material respects on and as of the date hereof to the
same extent as though made on and as of the date hereof, except to the
extent that changes in the facts and conditions on which such
representations and warranties were based are required or permitted
under the Credit Agreement;
(ii) No event has occurred and is continuing or would result
from the consummation of the drawing contemplated hereby that would
constitute an Event of Default or a Potential Event of Default;
(iii) The Company and each Borrower have performed in all
material respects all agreements and satisfied all conditions which the
Credit Agreement and other Loan Documents provide shall be performed or
satisfied by it on or before the date hereof;
(iv) There is no pending or, to the knowledge of Company or any
Borrower, threatened, action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and
there has occurred no development in any such action, suit, proceeding,
governmental investigation or arbitration that, in either event, would
reasonably be expected to have a Material Adverse Effect, unless
disclosed to and consented to by Requisite Lenders; and no injunction
or other restraining order to be issued is pending or noticed with
respect to any action, suit or proceeding seeking to enjoin or
otherwise prevent the consummation of, or to recover any damages to
obtain relief as a result of, the transactions contemplated by the
Credit Agreement or the making of Loans, the issuance of Letters of
Credit or the creation and purchase of Bankers' Acceptances thereunder;
(v) No Company Change of Control has occurred;
(vi) After giving effect to the proposed Drawing, the Total
Utilization of Commitments does not exceed the Commitments then in
effect and the Canadian Commitment Usage does not exceed the Canadian
Allocation then in effect.
2
HOMESTAKE CANADA INC.
By ________________________
Name:__________________
Title:_________________
Acknowledged and consented to as of the date hereof.
HOMESTAKE MINING COMPANY
By __________________________
Name:_____________________
Title:____________________
3
EXHIBIT IV-A
FORM OF NOTE
HOMESTAKE CANADA INC.
PROMISSORY NOTE DUE SEPTEMBER 20, 2001
$[1] [2]
[3]
FOR VALUE RECEIVED, HOMESTAKE CANADA INC., an Ontario
corporation ("Canadian Borrower"), promises to pay to the order of [NAME OF
LENDER] ("Payee"), on or before September 20, 2001, the lesser of (x) 4 ($[1])
and (y) the unpaid principal amount of all advances made by Payee to Canadian
Borrower as Loans under the Credit Agreement referred to below.
Canadian Borrower also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in full, at the rates
and at the times which shall be determined in accordance with the provisions of
that certain Credit Agreement dated as of September 20, 1996 by and among
Homestake Mining Company, a Delaware corporation, Homestake Mining Company of
California, a California corporation, Homestake Canada Inc., an Ontario
corporation, Homestake Gold of Australia Limited, a South Australia corporation,
the financial institutions listed therein as Lenders, The Chase Manhattan Bank
of Canada, as Canadian Administrative Agent for Lenders, Chase Manhattan
Securities Limited, as Australian Administrative Agent for Lenders, Chase
Securities Inc. as Arranger for Lenders, The Chase Manhattan Bank, as
Administrative Agent for Lenders, and Canadian Imperial Bank of Commerce, as
Documentation Agent for Lenders (said Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is one of Canadian Borrower's "Notes" which in the
aggregate may evidence up to $275,000,000 principal amount of Loans and is
issued pursuant to and
--------
[1] Insert amount of Lender's Commitment in numbers.
[2] Insert place of delivery of Note.
[3] Insert Effective Date.
[4] Insert amount of Lender's Commitment in words.
1
entitled to the benefits of the Credit Agreement, to which reference is hereby
made for a more complete statement of the terms and conditions under which the
Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note
shall be made in the same currency (which shall be Dollars or Canadian Dollars)
as the Loans in respect of which such payments are being made, in same day
funds, without defense, setoff or counterclaim, free of any restriction or
condition, and shall be delivered to Canadian Administrative Agent at the
Canadian Administrative Agent's Lending Office at such times as are provided for
in the Credit Agreement. Until notified in writing of the transfer of this Note,
Canadian Borrower, Canadian Administrative Agent, and Administrative Agent shall
be entitled to deem Payee, or such Person who has been so identified by the
transferor in writing to Canadian Borrower, Canadian Administrative Agent, and
Administrative Agent as the holder of this Note, as the owner and holder of this
Note. Each of Payee and any subsequent holder of this Note agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it will
make a notation hereon of all Loans evidenced by this Note and all principal
payments previously made hereunder and of the date to which interest hereon has
been paid; provided, however, that the failure to make a notation of any payment
made on this Note shall not limit or otherwise affect the obligations of
Canadian Borrower hereunder with respect to payments of principal of or interest
on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, but not later than September 20, 2001, and such
extension of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment and to prepayment
at the option of Canadian Borrower as provided in subsection 2.4A of the Credit
Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.18 of the Credit Agreement.
2
No reference herein to the Credit Agreement and no provision of
this Note or the Credit Agreement shall alter or impair the obligations of
Canadian Borrower, which are absolute and unconditional, to pay the principal of
and interest on this Note at the place, at the respective times, and in the
currency herein prescribed.
Canadian Borrower promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in subsection 10.2 of the
Credit Agreement, incurred in the collection and enforcement of this Note.
Canadian Borrower and any endorsers of this Note hereby consent to renewals and
extensions of time at or after the maturity hereof, without notice, and hereby
waive diligence, presentment, protest, demand and notice of every kind and, to
the full extent permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.
IN WITNESS WHEREOF, Canadian Borrower has caused this Note to
be duly executed and delivered by its officer thereunto duly authorized as of
the date and at the place first written above.
HOMESTAKE CANADA INC.
By: ______________________
Title: ____________________
3
TRANSACTIONS
ON
NOTE
Date
____
Type of Loan Made
This Date
_____________
Amount of
Loan Made
This Date
_____________
Amount of
Principal Paid
This Date
_____________
Outstanding
Principal
Balance
This Date
_____________
Notation
Made By
_________
4
EXHIBIT IV-B
FORM OF NOTE
HOMESTAKE GOLD OF AUSTRALIA LIMITED
PROMISSORY NOTE DUE SEPTEMBER 20, 2001
$[1] [2]
[3]
FOR VALUE RECEIVED, HOMESTAKE GOLD OF AUSTRALIA
LIMITED, a South Australia corporation ("Australian Borrower"), promises to pay
to the order of [NAME OF LENDER] ("Payee"), on or before September 20, 2001, the
lesser of (x) 4 ($[1]) and (y) the unpaid principal amount of all advances made
by Payee to Australian Borrower as Loans under the Credit Agreement referred to
below.
Australian Borrower also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in full, at the rates
and at the times which shall be determined in accordance with the provisions of
that certain Credit Agreement dated as of September 20, 1996 by and among
Homestake Mining Company, a Delaware corporation, Homestake Mining Company of
California, a California corporation, Homestake Canada Inc., an Ontario
corporation, Homestake Gold of Australia Limited, a South Australia corporation,
the financial institutions listed therein as Lenders, The Chase Manhattan Bank
of Canada, as Canadian Administrative Agent for Lenders, Chase Manhattan
Securities Limited, as Australian Administrative Agent for Lenders, Chase
Securities Inc. as Arranger for Lenders, The Chase Manhattan Bank, as
Administrative Agent for Lenders, and Canadian Imperial Bank of Commerce, as
Documentation Agent for Lenders (said Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is one of Australian Borrower's "Notes" which in the
aggregate may evidence up to $275,000,000 principal amount of Loans and is
issued
--------
[1] Insert amount of Lender's Commitment in numbers.
[2] Insert place of delivery of Note.
[3] Insert Effective Date.
[4] Insert amount of Lender's Commitment in words.
1
pursuant to and entitled to the benefits of the Credit Agreement, to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Loans evidenced hereby were made and are to be
repaid.
All payments of principal and interest in respect of this Note
shall be made in the same currency (which shall be Dollars or Australian
Dollars) as the Loans in respect of which such payments are being made, in same
day funds, without defense, setoff or counterclaim, free of any restriction or
condition, and shall be delivered to Australian Administrative Agent at
Australian Administrative Agent's Lending Office at such times as are provided
for in the Credit Agreement. Until notified in writing of the transfer of this
Note, Australian Borrower, Australian Administrative Agent, and Administrative
Agent shall be entitled to deem Payee, or such Person who has been so identified
by the transferor in writing to Australian Borrower, Australian Administrative
Agent, and Administrative Agent as the holder of this Note, as the owner and
holder of this Note. Each of Payee and any subsequent holder of this Note
agrees, by its acceptance hereof, that before disposing of this Note or any part
hereof it will make a notation hereon of all Loans evidenced by this Note and
all principal payments previously made hereunder and of the date to which
interest hereon has been paid; provided, however, that the failure to make a
notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Australian Borrower hereunder with respect to payments of
principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, but not later than September 20, 2001, and such
extension of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment and to prepayment
at the option of Australian Borrower as provided in subsection 2.4A of the
Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.18 of the Credit Agreement.
2
No reference herein to the Credit Agreement and no provision of
this Note or the Credit Agreement shall alter or impair the obligations of
Australian Borrower, which are absolute and unconditional, to pay the principal
of and interest on this Note at the place, at the respective times, and in the
currency herein prescribed.
Australian Borrower promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in subsection 10.2 of the
Credit Agreement, incurred in the collection and enforcement of this Note.
Australian Borrower and any endorsers of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice, and
hereby waive diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Australian Borrower has caused this Note to
be duly executed and delivered by its officer thereunto duly authorized as of
the date and at the place first written above.
HOMESTAKE GOLD OF
AUSTRALIA LIMITED
By: _______________________
Title: ____________________
3
TRANSACTIONS
ON
NOTE
Date
____
Type of
Loan Made
This Date
____________
Amount of
Loan Made
This Date
_____________
Amount of
Principal Paid
This Date
_________
Outstanding
Principal
Balance
This Date
_________
Notation
Made By
_______
4
EXHIBIT IV-C
FORM OF NOTE
HOMESTAKE MINING COMPANY OF CALIFORNIA
PROMISSORY NOTE DUE SEPTEMBER 20, 2001
$[1] [2]
[3]
FOR VALUE RECEIVED, HOMESTAKE MINING COMPANY OF CALIFORNIA, a
California corporation ("U.S. Borrower"), promises to pay to the order of [NAME
OF LENDER] ("Payee"), on or before September 20, 2001, the lesser of (x) 4
($[1]) and (y) the unpaid principal amount of all advances made by Payee to U.S.
Borrower as Loans under the Credit Agreement referred to below.
U.S. Borrower also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in full, at the rates
and at the times which shall be determined in accordance with the provisions of
that certain Credit Agreement dated as of September 20, 1996 by and among
Homestake Mining Company, a Delaware corporation, Homestake Mining Company of
California, a California corporation, Homestake Canada Inc., an Ontario
corporation, Homestake Gold of Australia Limited, a South Australia corporation,
the financial institutions listed therein as Lenders, The Chase Manhattan Bank
of Canada, as Canadian Administrative Agent for Lenders, Chase Manhattan
Securities Limited, as Australian Administrative Agent for Lenders, Chase
Securities Inc. as Arranger for Lenders, The Chase Manhattan Bank, as
Administrative Agent for Lenders, and Canadian Imperial Bank of Commerce, as
Documentation Agent for Lenders (said Credit Agreement, as it may be amended,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is one of U.S. Borrower's "Notes" which in the
aggregate may evidence up to $275,000,000 principal amount of Loans and is
issued pursuant to and
--------
[1] Insert amount of Lender's Commitment in numbers.
[2] Insert place of delivery of Note.
[3] Insert Effective Date.
[4] Insert amount of Lender's Commitment in words.
1
entitled to the benefits of the Credit Agreement, to which reference is hereby
made for a more complete statement of the terms and conditions under which the
Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note
shall be made in Dollars in same day funds, without defense, setoff or
counterclaim, free of any restriction or condition, and shall be delivered to
Administrative Agent at Administrative Agent's U.S. Lending Office at such times
as are provided in the Credit Agreement. Until notified in writing of the
transfer of this Note, U.S. Borrower and Administrative Agent shall be entitled
to deem Payee, or such Person who has been so identified by the transferor in
writing to U.S. Borrower and Administrative Agent as the holder of this Note, as
the owner and holder of this Note. Each of Payee and any subsequent holder of
this Note agrees, by its acceptance hereof, that before disposing of this Note
or any part hereof it will make a notation hereon of all Loans evidenced by this
Note and all principal payments previously made hereunder and of the date to
which interest hereon has been paid; provided, however, that the failure to make
a notation of any payment made on this Note shall not limit or otherwise affect
the obligations of U.S. Borrower hereunder with respect to payments of principal
of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, but not later than September 20, 2001, and such
extension of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment and to prepayment
at the option of U.S. Borrower as provided in subsection 2.4A of the Credit
Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.18 of the Credit Agreement.
2
No reference herein to the Credit Agreement and no provision of
this Note or the Credit Agreement shall alter or impair the obligations of U.S.
Borrower, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
U.S. Borrower promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Note. U.S.
Borrower and any endorsers of this Note hereby consent to renewals and
extensions of time at or after the maturity hereof, without notice, and hereby
waive diligence, presentment, protest, demand and notice of every kind and, to
the full extent permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.
IN WITNESS WHEREOF, U.S. Borrower has caused this Note to be
duly executed and delivered by its officer thereunto duly authorized as of the
date and at the place first written above.
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By: ______________________
Title: ___________________
3
TRANSACTIONS
ON
NOTE
Date
____
Type of
Loan Made
This Date
_________
Amount of
Loan Made
This Date
_________
Amount of
Principal Paid
This Date
_________
Outstanding
Principal
Balance
This Date
_________
Notation
Made By
_______
4
EXHIBIT V
FORM OF GRID GOLD ACKNOWLEDGEMENT
[NAME OF BORROWER]
CREDIT GOLD OBLIGATION DUE SEPTEMBER 20, 2001
[5]
[6]
FOR VALUE RECEIVED, [NAME OF BORROWER], a _________ corporation
("Borrower"), promises to pay to the order of [NAME OF LENDER] ("Payee"), on or
before September 20, 2001, the number of Ounces of Gold advanced from time to
time by Payee to Borrower as Gold Loans under the Credit Agreement referred to
below.
Borrower also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Credit Agreement dated as of September 20, 1996 by and among Homestake
Mining Company, a Delaware corporation, Homestake Mining Company of California,
a California corporation, Homestake Canada Inc., an Ontario corporation,
Homestake Gold of Australia Limited, a South Australia corporation, the
financial institutions listed therein as Lenders, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders, Chase Manhattan Securities
Limited, as Australian Administrative Agent for Lenders, Chase Securities Inc.
as Arranger for Lenders, The Chase Manhattan Bank, as Administrative Agent for
Lenders, and Canadian Imperial Bank of Commerce, as Documentation Agent for
Lenders (said Credit Agreement, as it may be amended, supplemented or otherwise
modified from time to time, being the "Credit Agreement", the terms defined
therein and not otherwise defined herein being used herein as therein defined).
This Grid Gold Acknowledgement (this "Acknowledgement") is one
of Borrower's "Grid Gold Acknowledgements" which in the aggregate may evidence
up to 600,000 Ounces of Gold and is issued pursuant to and entitled to the
benefits of the Credit Agreement, to which reference is hereby made for a more
complete statement of the terms
--------
[5] Insert place of delivery.
[6] Insert Effective Date.
1
and conditions under which the Gold Loans evidenced hereby were made and are to
be repaid.
All payments of principal and interest in respect of this
Acknowledgement shall be made in accordance with the provisions of the Credit
Agreement, in Gold or in Dollars, in same day funds, without defense, setoff or
counterclaim, free of any restriction or condition, and shall be delivered, if
paid in Dollars, to [Canadian/Australian] Administrative Agent's Lending Office
or, if paid in Gold, [Canadian/Australian] Administrative Agent's account with
____________________, London, England, or such other bullion depository as may
be designated by [Canadian/Australian] Administrative Agent from time to time,
before 12:00 Noon (London time) on the day specified for payment. Until notified
in writing of the transfer of this Acknowledgement, Borrower
[Canadian/Australian] Administrative Agent [and Administrative Agent] shall be
entitled to deem Payee, or such Person who has been so identified by the
transferor in writing to Borrower and [Canadian/Australian] Administrative Agent
[and Administrative Agent] as the holder of this Acknowledgement, as the owner
and holder of this Acknowledgment. Each of Payee and any subsequent holder of
this Acknowledgement agrees, by its acceptance hereof, that before disposing of
this Acknowledgement or any part hereof it will make a notation hereon of all
Loans evidenced by this Acknowledgement and all principal payments previously
made hereunder and of the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any payment made on this
Acknowledgement shall not limit or otherwise affect the obligations of Borrower
hereunder with respect to payments of principal of or interest on this
Acknowledgement.
Unless [Canadian/Australian] Administrative Agent receives
notice from Borrower within seven Business Days of Borrower's receipt of any
Gold, the quantity and quality of the Gold so received shall be deemed to be as
set forth in [Canadian/Australian] Administrative Agent's delivery order. If
there is any discrepancy in the amount or quality of Gold actually Delivered,
the amount of such difference shall be settled in Dollars (based on the Dollar
Equivalent on the date of Delivery of the Gold required to be advanced hereunder
and the Gold actually Delivered) promptly after the Delivery thereof. Borrower
assumes all risk of loss, theft or detention of or damage to any Gold Delivered
hereunder from the date Borrower receives Delivery of such Gold until the date
of its return by Delivery to [Canadian/Australian] Administrative Agent.
Whenever any payment on this Acknowledgement shall be stated to
be due on a day which is not a Business Day, such payment shall be made on the
next succeeding Business Day, but not later than September 20, 2001 and such
extension of time shall be included in the computation of the payment of
interest on this Acknowledgement.
This Acknowledgement is subject to mandatory prepayment and to
prepayment at the option of Borrower as provided in subsection 2.4A of the
Credit Agreement.
2
THE CREDIT AGREEMENT AND THIS ACKNOWLEDGEMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Acknowledgement, together with all accrued and
unpaid interest thereon, may become, or may be declared to be, due and payable
in the manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Acknowledgement are subject to amendment only
in the manner provided in the Credit Agreement.
This Acknowledgement is subject to restrictions on transfer or
assignment as provided in subsections 10.1 and 10.18 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of
this Acknowledgement or the Credit Agreement shall alter or impair the
obligations of Borrower, which are absolute and unconditional, to pay the
principal of and interest on this Acknowledgement at the place, at the
respective times, and in the currency herein prescribed.
Borrower promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Acknowledgement.
Borrower and any endorsers of this Acknowledgement hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice, and
hereby waive diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Borrower has caused this Acknowledgement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date and at the place first written above.
[NAME OF BORROWER]
By: _______________________
Title: ____________________
3
TRANSACTIONS
ON
GRID GOLD ACKNOWLEDGEMENT
Date
____
Amount of
Loan Made
This Date
_________
Amount of
Gold Paid
This Date
_________
Outstanding
Principal
Balance
This Date
_________
Notation
Made By
_______
4
EXHIBIT VI
FORM OF COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected [President/Vice President] and
[Chief Financial Officer/Treasurer/Controller] of each of Homestake
Mining Company, a Delaware corporation ("Company"), Homestake Mining
Company of California, a California corporation ("U.S. Borrower") and
Homestake Canada Inc., an Ontario corporation ("Canadian Borrower"),
and [Directors/Secretary] of Homestake Gold of Australia Limited, a
South Australia corporation ("Australian Borrower");
(2) We have reviewed the terms of that certain Credit Agreement
dated as of September 20, 1996, as amended to the date hereof (said
Credit Agreement, as so amended, being the "Credit Agreement", the
terms defined therein and not otherwise defined in this Certificate
(including Attachment No. 1 annexed hereto and made a part hereof)
being used in this Certificate as therein defined), by and among
Homestake Mining Company, a Delaware corporation ("Company"), Homestake
Mining Company of California, a California corporation ("U.S.
Borrower"), Homestake Canada Inc., an Ontario corporation ("Canadian
Borrower"), Homestake Gold of Australia Limited, a South Australia
corporation ("Australian Borrower"), the financial institutions listed
therein as Lenders ("Lenders"), The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent for Lenders ("Canadian Administrative
Agent"), Chase Manhattan Securities Limited, as Australian
Administrative Agent for Lenders ("Australian Administrative Agent"),
Chase Securities Inc., as Arranger for Lenders ("Arranger"), The Chase
Manhattan Bank, as Administrative Agent for Lenders ("Administrative
Agent"), and Canadian Imperial Bank of Commerce, as Documentation Agent
for Lenders ("Documentation Agent") and we have made, or have caused to
be made under our supervision, a review in reasonable detail of the
transactions and condition of Company, U.S. Borrower, Canadian Borrower
and Australian Borrower and their respective Subsidiaries during the
accounting period covered by the attached financial statements;
(3) The examination described in paragraph (2) above did not
disclose, and we have no knowledge of, the existence of any condition
or event which constitutes an Event of Default or Potential Event of
Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Certificate[,
except as set forth below];
1
[Set forth [below] [in a separate attachment to this
Certificate] are all exceptions to paragraph (3) above listing, in detail, the
nature of the condition or event, the period during which it has existed and the
action which Company, U.S. Borrower, Canadian Borrower and/or Australian
Borrower has taken, is taking, or proposes to take with respect to each such
condition or event:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________]
(4) Company, U.S. Borrower, Canadian Borrower and Australian
Borrower are in compliance with the restrictions contained in
subsections 6.1 through 6.11 of the Credit Agreement [except that
[describe any instances where not in compliance]]; and
(5) There have been no changes to the Subsidiaries of Company
and the Borrowers identified in Schedule 4.1 during the period covered
by this Compliance Certificate [except that [describe changes to
Schedule 4.1]].
The foregoing certifications, together with the computations
set forth in Attachment No. 1 annexed hereto and made a part hereof and the
financial statements delivered with this Certificate in support hereof, are made
and delivered this __________ day of __________, ____ pursuant to subsection
5.1(iii) of the Credit Agreement.
HOMESTAKE MINING COMPANY
By: _______________________________
Title: ____________________________
By: _______________________________
Title: ____________________________
HOMESTAKE MINING COMPANY OF
CALIFORNIA
By: _______________________________
2
Title: ____________________________
By: _______________________________
Title: ____________________________
HOMESTAKE CANADA INC.
By: _______________________________
Title: ____________________________
By: _______________________________
Title: ____________________________
HOMESTAKE GOLD OF AUSTRALIA
IMITED
By: _______________________________
Title: ____________________________
By: _______________________________
Title: ____________________________
3
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a
Compliance Certificate dated as of ____________, ____ and pertains to the period
from ____________, ____ to ____________, ____. Subsection references herein
relate to subsections of the Credit Agreement.
A. Indebtedness:
1. Aggregate principal amount of
Indebtedness of Prime to Company
or any other subsidiary of Company
under subsection 6.1(iii): $_____________
2. Maximum aggregate principal amount of
Indebtedness of Prime to Company or
any other Subsidiary of Company
permitted under subsection 6.1(iii): $50,000,000
3. Nonrecourse Debt of (a) Prime, Australian
Borrower, Canadian Borrower and any
Subsidiary of Company (other than
U.S. Borrower) to the extent such Indebtedness
is secured solely by Liens on assets and
properties owned on the Effective Date that
are undeveloped or that are acquired after
the Effective Date by the Person receiving
the proceeds of such Indebtedness and not
adjacent to or relating to any Mining Group
properties existing as of the Effective Date,
and (b) U.S. Borrower secured solely by Liens
on assets and properties owned on the
Effective Date that are undeveloped
permitted under subsection 6.1(vii): $_____________
4. Maximum amount of Non-Recourse Debt
Indebtedness permitted under
subsection 6.1(vii): $400,000,000
5. Additional Indebtedness of Subsidiaries
of Borrowers permitted under
4
subsection 6.1(viii)(a): $______________
6. Maximum amount of additional Indebtedness
of Subsidiaries of Borrowers permitted
under subsection 6.1(viii)(a): $50,000,000
7. Additional Indebtedness of Borrowers
permitted under subsection 6.1(viii)(b): $______________
8. Maximum amount of additional Indebtedness
of Borrowers permitted under subsection
6.1(viii)(b): $75,000,000 less
the amount listed
in item 5 above.
B. Liens:
1. Indebtedness secured by Purchase Money Security
Interests permitted under subsection 6.2(iii): $_____________
2. Maximum amount of Indebtedness secured by
Purchase Money Security Interests permitted
under subsection 6.2(iii): $25,000,000
C. Investments:
1. Investments (other than Investments described
in Schedule 6.3) Company and its
Subsidiaries are permitted to continue
to own under subsection 6.3(iv): $_____________
2. Maximum aggregate amount of all
Investments (other than Investments
described in Schedule 6.3) Company
and its Subsidiaries are permitted
to continue to own under subsection 6.3(iv): $10,000,000
3. Investments acquired in connection with
Asset Sales permitted under
subsection 6.3(vi): $_____________
4. Maximum aggregate amount of
5
all Investments in connection
with Asset Sales permitted under
subsection 6.3(vi): $50,000,000
D. Contingent Obligations:
1. Aggregate notional principal amount of
Interest Rate Protection Agreements
permitted under subsection 6.4(ii): $_____________
2. Maximum notional principal amount of
Interest Rate Protection Agreements permitted
under subsection 6.4(ii): $100,000,000
3. Aggregate amount guarantied by Company
and its Subsidiaries under guaranties
of any obligations of Company's Subsidiaries
(including Joint Ventures) permitted
under subsection 6.4(iv): $_____________
4. Maximum aggregate amount permitted
to be guaranteed under subsection 6.4(iv): $100,000,000
5. Aggregate notional amount outstanding
under gold futures, options or forward
sales contracts, Currency Agreements and
similar arrangements designed to
protect against fluctuations in
price of Gold or relative exchange
rates for currencies permitted
under subsection 6.4(vi): $_____________
6. Maximum notional amount of aggregate contingent
liability under all such futures, options,
contracts, agreements and arrangements
permitted under subsection 6.4(vi): $600,000,000
7. Aggregate amount outstanding
under standby letters of credit and
surety bonds securing Indebtedness or
Contingent Obligations of Company and its
Subsidiaries permitted under subsection 6.4(vii)(b): $____________
6
8. Maximum amount of aggregate liability
under all such standby letters of credit and
surety bonds under subsection 6.4(vii)(b): $50,000,000
E. Minimum Consolidated Net Worth (as of __________, ____)
1. Company's current Consolidated Net Worth: $_____________
2. Minimum Consolidated Net Worth required under
the Credit Agreement:
$500,000,000
F. Maximum Leverage Ratio (as of __________, _____)
1. Consolidated Total Debt: $_____________
2. Consolidated Net Worth: $_____________
3. Ratio of F.1 to F.1 + F.2: _____ to 1.00
4. Maximum Leverage Ratio permitted
under subsection 6.6B: 0.50 to 1.00
7
EXHIBIT VII-A
FORM OF OPINION OF THELEN, MARRIN, XXXXXXX & XXXXXXX
September __, 1996
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
000 Xxxx Xxxxxx Xxxx 00xx Xxxxx
Xxx 00
Xxxxxxx Xxxxxxx
Xxxxxx MSH 1J9
and
Chase Manhattan Securities Limited,
as Australian Administrative Agent
Xxxxx 00 AAP Center
000 Xxxxxx Xxxxxx
Xxxxxx XXX Xxxxxxxxx 0000
and
Chase Securities Inc.,
as Arranger
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
The Chase Manhattan Bank,
as Administrative Agent
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
and
Canadian Imperial Bank of Commerce,
as Documentation Agent
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
0
Xxxxxx X0X 0X0
and the Lenders Listed
on Schedule I Hereto
Re: Credit Agreement dated September 20, 1996 among Homestake
Mining Company, Homestake Mining Company of California,
Homestake Canada Inc., Homestake Gold of Australia Limited,
the Lenders named therein, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Manhattan
Securities Limited, as Australian Administrative Agent,
Chase Securities Inc., as Arranger, The Chase Manhattan
Bank, as Administrative Agent, and Canadian Imperial Bank of
Commerce, as Documentation Agent
Ladies and Gentlemen:
We have acted as special New York counsel to Homestake Mining
Company, a Delaware corporation (the "Company"), Homestake Mining Company of
California, a California corporation (the "U.S. Borrower"), Homestake Canada
Inc., an Ontario corporation (the "Canadian Borrower"), and Homestake Gold of
Australia Limited, a South Australia corporation (the "Australian Borrower") in
connection with the execution and delivery of the Credit Agreement dated as
September 20, 1996, among the Company, the U.S. Borrower, the Canadian Borrower,
the Australian Borrower, the Lenders named therein, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Manhattan Securities Limited, as
Australian Administrative Agent, Chase Securities Inc., as Arranger, The Chase
Manhattan Bank, as Administrative Agent and Canadian Imperial Bank of Commerce,
as Documentation Agent (the "Credit Agreement"), and certain transactions
relating thereto. All terms used herein that are defined in the Credit Agreement
have the respective meanings specified in the Credit Agreement. This letter is
being delivered to you in satisfaction of the condition set forth in subsection
3.1E of the Credit Agreement and with the understanding that you are entering
into the Credit Agreement in reliance on the opinions expressed herein.
In our capacity as such counsel, we have examined the
originals, or copies identified to our satisfaction as being true copies, of
such records, documents or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. These records,
documents and instruments include the following:
(a) The Certificates or Articles of Incorporation of the Company and the
U.S.Borrower;
2
(b) The By-Laws of the Company and the U.S. Borrower;
(c) Certain records of proceedings and actions of the Board of Directors
of the Company and the U.S. Borrower;
(d) The Credit Agreement and the Exhibits and Schedules annexed
thereto;
(e) The Notes and Grid Gold Acknowledgements; and
(f) The forms of Drafts.
We have relied with respect to certain factual matters, upon
the certificates of certain officers of each of the Company and the U.S.
Borrower, copies of which are being delivered to you herewith, and upon the
representations and warranties of the Company and the Borrowers contained in the
Credit Agreement.
We have also been furnished with, and have relied upon,
evidence or advice satisfactory to us from the offices of the Secretaries of
State of California and Delaware as appropriate, with respect to the good
standing of the Company or the U.S. Borrower. In addition, we have obtained and
relied upon such certificates and assurances from public officials as we have
deemed necessary, desirable or appropriate to render the opinions herein.
We have assumed the genuineness and authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies, drafts or forms. In making our examination
of documents executed or to be executed by Persons other than the Company or the
U.S. Borrower we have assumed that such other Persons had or have the power to
enter into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action and execution and delivery of such
documents by such Persons and the validity and binding effect thereof in
relation to such Persons.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary, including, without
limitation, Regulations G,T, U and X of the Board of Governors of the Federal
Reserve System. We are opining herein as to the effect on the subject
transaction of only the federal laws of the United States, the laws of the
States of New York and California and the general corporate law of the State of
Delaware.
On the basis of the foregoing, and in reliance thereon, and
subject to the limitations, qualifications and exceptions set forth below, we
are of the opinion that:
3
1. Each of the Company and the U.S. Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to own and operate its properties and to execute, deliver and perform
the Credit Agreement and, in the case of the U.S. Borrower, the Notes and the
Grid Gold Acknowledgements and to carry out the transactions contemplated
thereby.
2. The execution, delivery and performance of the Credit Agreement by
each of the Company and the U.S. Borrower have been duly authorized by all
necessary corporate action on the part of the Company or such Borrower, as the
case may be. The issuance of the Notes and the Grid Gold Acknowledgements by the
U.S. Borrower has been duly authorized by all necessary corporate action on the
part of such Borrower.
3. Assuming the due execution and delivery of the Credit Agreement by
the Company and each Borrower, the Credit Agreement constitutes the legally
valid and binding obligation of the Company and each Borrower enforceable
against the Company and each Borrower in accordance with its terms. Assuming the
due issuance of the Notes, Grid Gold Acknowledgements and Bankers' Acceptances
by each Borrower, each of the Notes, Grid Gold Acknowledgements and Bankers'
Acceptances constitutes the legally valid and binding obligation of the Borrower
issuing the same enforceable against such Borrower in accordance with its terms.
4. It is not necessary in connection with the execution and delivery of the
Credit Agreement by the Company or the Borrowers or the issuance of the Notes,
Grid Gold Acknowledgements and Bankers' Acceptances by the Borrowers to register
the Credit Agreement, the Notes, the Grid Gold Acknowledgements or the Bankers'
Acceptances under the Securities Act of 1933 or to qualify an indenture in
respect of the Notes under the Trust Indenture Act of 1939, as amended.
5. None of the execution and delivery of the Credit Agreement by the
Company and the Borrowers, the issuance of the Notes, Grid Gold Acknowledgements
or Bankers' Acceptances by the Borrowers, the consummation of the transactions
contemplated by the Credit Agreement, or the compliance with the terms and
conditions thereof by the Company or the Borrowers, as the case may be,
conflicts with, results in a breach or a violation of, or constitutes a default
under, any of the terms, conditions or provisions of (y) the Certificate or
Articles of Incorporation or By-Laws of the Company or the U.S. Borrower, or (z)
any present United States federal or New York statute, rule or regulation that
is binding on the Company or any Borrower.
6. No governmental consents, approvals, registrations, declarations or
filings are required to be obtained or made by the Company or any Borrower in
connection with the execution and delivery of the Credit Agreement or, in the
case of the Borrowers,
4
the Notes, Grid Gold Acknowledgements or Bankers' Acceptances except as have
already been obtained.
7. The making of the Loans and the application of the proceeds thereof
as provided in the Credit Agreement do not violate or require filings under
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
8. All Obligations of Company under the Credit Agreement are within
the definition of "Senior Debt" in the indenture pursuant to which the
Subordinated Debentures have been issued.
Our opinion as to enforceability of the Credit Agreement, the
Notes, Grid Gold Acknowledgements and Bankers' Acceptances is qualified by and
subject to:
(a) limitations imposed by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights
generally, and laws relating to fraudulent transfers
or conveyances, preferences and equitable
subordination;
(b) general principles of equity, including without
limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible
unavailability of specific performance or injunctive
relief (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(c) the qualification that certain remedial provisions of
the Credit Agreement may be unenforceable in whole or
in part, but such document contains adequate
provisions for practical realization of the benefits
purported to be created thereby;
(d) the unenforceability under certain circumstances of
provisions purporting to release or exculpate any
party from liability for its acts or omissions, or
purporting to impose a duty upon any party to
indemnify any other party when any claimed damages
result from the gross negligence or willful misconduct
of the party seeking such indemnity;
(e) the unenforceability under certain circumstances of
waivers, and provisions imposing liquidated damages,
late payment charges or forfeitures, if such amounts
are determined to be penalties in light of the actual
damages incurred;
5
(f) the qualification that any money judgment rendered by
a court in the State of New York or California will be
payable in United States dollars.
This opinion is being delivered upon the express instructions
of each of the Company and the Borrowers to the Agents, the Arranger and the
Lenders and their permitted assignees and participants and is solely for their
benefit in connection with the above transactions. This opinion may not be
relied upon for any other purpose, or relied upon by any other person, firm or
corporation for any purpose, without our prior written consent; provided,
however, that each of the Agents, the Arranger and the Lenders, and their
permitted assigns and participants, may provide this opinion (i) to bank
examiners and other regulatory authorities should they so request or in
connection with their normal examinations, (ii) to its respective independent
auditors and attorneys, (iii) pursuant to order or legal process of any court or
governmental agency, (iv) in connection with any action to which it is a party
arising out of the transactions contemplated by the Credit Agreement, or (v) to
prospective assignees of, or participants in, all or any portion of its Loans,
Bankers' Acceptances, participations in Letters of Credit or Commitments under
the Credit Agreement.
Very truly yours,
6
EXHIBIT VII-B
FORM OF OPINION OF XXXXX XXXX, ESQ.
September __, 0000
Xxx Xxxxx Xxxxxxxxx Xxxx xx Xxxxxx,
as Canadian Administrative Agent
000 Xxxx Xxxxxx Xxxx 00xx Xxxxx
Xxx 00
Xxxxxxx Xxxxxxx
Xxxxxx MSH 1J9
and
Chase Manhattan Securities Limited,
as Australian Administrative Agent
Xxxxx 00 AAP Center
000 Xxxxxx Xxxxxx
Xxxxxx XXX Xxxxxxxxx 0000
and
Chase Securities Inc.,
as Arranger
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
The Chase Manhattan Bank,
as Administrative Agent
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
and
Canadian Imperial Bank of Commerce,
as Documentation Agent
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx Xxxxxxx
0
Xxxxxx X0X 0X0
and the Lenders Listed
on Schedule I Hereto
Re: Credit Agreement dated September 20, 1996 among Homestake
Mining Company, Homestake Mining Company of California,
Homestake Canada Inc., Homestake Gold of Australia Limited,
the Lenders named therein, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Manhattan
Securities Limited, as Australian Administrative Agent,
Chase Securities Inc., as Arranger, The Chase Manhattan
Bank, as Administrative Agent, and Canadian Imperial Bank of
Commerce, as Documentation Agent
Ladies and Gentlemen:
I have acted as counsel to Homestake Mining Company, a Delaware
corporation (the "Company"), Homestake Mining Company of California, a
California corporation (the "U.S. Borrower"), Homestake Canada Inc., an Ontario
corporation (the "Canadian Borrower"), and Homestake Gold of Australia Limited,
a South Australia corporation (the "Australian Borrower" and, together with the
U.S. Borrower and the Canadian Borrower, the "Borrowers"), in connection with
the execution and delivery of the Credit Agreement dated as September 20, 1996,
among the Company, the U.S. Borrower, the Canadian Borrower, the Australian
Borrower, the Lenders named therein, The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent, Chase Manhattan Securities Limited, as Australian
Administrative Agent, Chase Securities Inc., as Arranger, The Chase Manhattan
Bank, as Administrative Agent, and Canadian Imperial Bank of Commerce, as
Documentation Agent (the "Credit Agreement"), and certain transactions relating
thereto. All terms used herein that are defined in the Credit Agreement have the
respective meanings specified in the Credit Agreement. This letter is being
delivered to you in satisfaction of the condition set forth in subsection 3.1E
of the Credit Agreement and with the understanding that you are entering into
the Credit Agreement in reliance on the opinions expressed herein.
In my capacity as Vice President, General Counsel and Corporate
Secretary of the Company and counsel to the Company and the Borrowers, I have
personally supervised the actions of the Company and the Borrowers in connection
with the authorization, execution and delivery of the Credit Agreement and the
Exhibits and Schedules thereto, the Notes and the Grid Gold Acknowledgements. In
my capacity as counsel to the Company and the Borrowers, I have examined the
originals, or copies identified to my satisfaction as being true copies, of such
records, documents or other instruments as in my judgment are necessary or
appropriate to enable me to render the
2
opinions expressed below. These records, documents and instruments include the
following:
(a) The Certificates or Articles of Incorporation and the Articles of
Association of the Company, the U.S. Borrower, the Canadian Borrower and
the Australian Borrower;
(b) The By-Laws of the Company, the U.S. Borrower, the Canadian Borrower and
the Australian Borrower;
(c) Certain records of proceedings and actions of the Board of Directors of the
Company, the U.S. Borrower, the Canadian Borrower and the Australian
Borrower;
(d) The Credit Agreement and the Exhibits and Schedules annexed thereto;
(e) The Notes and Grid Gold Acknowledgements;
(f) The form of Drafts; and
(g) The material indentures, mortgages, contracts and agreements of the Company
and the Borrowers identified in the Opinion Certificates referred to below.
I have been furnished with, and have relied upon, the
certificates of certain officers of each of the Company, the U.S. Borrower, the
Canadian Borrower and Australian Borrower (each an "Opinion Certificate") with
respect to certain factual matters, copies of which are being delivered to you
herewith. Attached to such Opinion Certificates are, among other things,
listings certified by the Persons executing such Opinion Certificates to be all
of the indentures, mortgages, deeds of trust, material pledge and security
agreements, bank loans, credit agreements and other material evidences of
indebtedness of the Company, the U.S. Borrower, the Canadian Borrower, and the
Australian Borrower (collectively, the "Debt Agreements") and listings certified
by the Persons executing such Opinion Certificates to be all of the other
agreements by which the Company, the U.S. Borrower, the Canadian Borrower or the
Australian Borrower is or will be, after the execution of the documents referred
to herein, a party or by which the Company, the U.S. Borrower, the Canadian
Borrower or the Australian Borrower or any of their respective properties are
bound or affected and which are certified to be material to the business,
operations or properties of the Company, the U.S. Borrower, the Canadian
Borrower or the Australian Borrower (collectively, the "Material Agreements"). I
have no reason to believe that the Agents, the Arranger or the Lenders and I are
not entitled to rely upon the certificates and the representations and
warranties referred to above.
3
I have also been furnished with, and have relied upon, evidence
or advice satisfactory to me from the offices of the Secretaries of State of
California and Delaware and the Ministry of Consumer and Commercial Relations of
Ontario, [need entity for Australian certification] as appropriate, with respect
to the good standing or corporate status of the Company, the U.S. Borrower, the
Canadian Borrower and the Australian Borrower. In addition, I have obtained and
relied upon such other certificates and assurances from public officials as I
have deemed necessary, desirable or appropriate to render the opinions herein,
copies of which have been delivered to Administrative Agent.
I have assumed the genuineness and authenticity of all
documents submitted to me as originals and the conformity to originals of all
documents submitted to me as copies, drafts or forms. In making my examination
of documents executed or to be executed by Persons other than the Company, the
U.S. Borrower, the Canadian Borrower or the Australian Borrower, I have assumed
that such other Persons had or have the power to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action and execution and delivery of such documents by such Persons
and the validity and binding effect thereof in relation to such Persons.
I have investigated such questions of law for the purpose of
rendering this opinion as I have deemed necessary, including, without
limitation, Regulations G, T, U and X of the Board of Governors of the Federal
Reserve System. I am opining herein as to the effect on the subject transaction
of the federal laws of the United States, the laws of the State of California
and, in respect only of the general corporation law, the laws of the State of
Delaware.
On the basis of the foregoing, and in reliance thereon, and
subject to the limitations, qualifications and exceptions set forth below, I am
of the opinion that:
1. Each of the Company and the Borrowers is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to own and operate its properties and to carry on its business as now
conducted, to execute, deliver and perform the Credit Agreement and, in the case
of the Borrowers, the Notes, the Grid Gold Acknowledgements and the Bankers'
Acceptances, and to carry out the transactions contemplated thereby.
2. Each of the Company and the Borrowers has not failed to qualify to
do business as a foreign corporation in any state or province where the
consequence of failure to be so qualified would have a material adverse effect
on the Company's or any Borrower's business, operations or properties.
3. The execution, delivery and performance of the Credit Agreement by
each of the Company and the Borrowers have been duly authorized by all necessary
4
corporate action on the part of the Company and the Borrowers. The issuance of
the Notes, the Grid Gold Acknowledgements and the Bankers' Acceptances by each
Borrower has been duly authorized by all necessary corporate action on the part
of such Borrower.
4. The Credit Agreement has been duly executed and delivered by the
Company and each Borrower. The Notes and Grid Gold Acknowledgements have been
duly issued by the Borrowers.
5. It is not necessary in connection with the execution and delivery of the
Credit Agreement by the Company or the Borrowers or the issuance of the Notes,
the Grid Gold Acknowledgements and the Bankers' Acceptances by the Borrowers to
register the Credit Agreement, the Notes, the Grid Gold Acknowledgements or the
Bankers' Acceptances under the Securities Act of 1933 or to qualify an indenture
in respect of the Notes under the Trust Indenture Act of 1939, as amended.
6. None of the execution and delivery of the Credit Agreement by the
Company and the Borrowers, the issuance of the Notes, Grid Gold Acknowledgements
and Bankers' Acceptances by the Borrowers, the consummation of the transactions
contemplated by the Credit Agreement, or the compliance with the terms and
conditions thereof by the Company or the Borrowers, as the case may be, (A)
conflicts with, results in a breach or a violation of, or constitutes a default
under, any of the terms, conditions or provisions of (w) the Certificate or
Articles of Incorporation, Articles of Association or By-Laws of the Company or
the Borrowers, (x) any Debt Agreement or Material Agreement, (y) any order,
writ, judgment or decree to which, to my knowledge, the Company or any Borrower
is a party or by which, to my knowledge, any of their respective properties or
assets are bound and which is material to the Company or any Borrower, or (z)
any present United States federal or California statute, rule or regulation that
is binding on the Company or any Borrower, or (B) results in the creation of any
Lien upon any of the properties or assets of the Company or any Borrower under
any agreement referred to in clause (x) above.
7. To my knowledge, there is no action, suit or proceeding pending or
threatened against or affecting the Company or any Borrower at law or in equity
before any court, arbitrator or administrative or governmental body (a) in which
an order has been entered preventing the making of any of the Loans or other
extensions of credit under the Credit Agreement, or (b) that could, either
individually or in the aggregate, have a material adverse effect on the ability
of the Company or any Borrower to perform its obligations under the Credit
Agreement or, in the case of any Borrower, the Notes, the Grid Gold
Acknowledgements or the Bankers' Acceptances to which it is a party or the
financial condition of the Company and its Subsidiaries, taken as a whole, or
any Borrower.
8. Neither the Company nor any Borrower is an "investment company"
or a company "controlled" by an "investment company" as such terms are defined
in the
5
Investment Company Act of 1940, as amended, or subject to regulation under the
Public Utility Holding Company Act of 1935, as amended, the Federal Power Act,
as amended, the Interstate Commerce Act, as amended, or any federal or state
statute or regulation limiting its ability to incur Indebtedness with respect to
money borrowed or to create Liens on any of its properties or assets to secure
such Indebtedness.
9. No United States federal or California governmental consents,
approvals, registrations, declarations or filings are required to be obtained or
made by the Company or any Borrower in connection with the execution and
delivery of the Credit Agreement or, in the case of the Borrowers, the Notes,
Grid Gold Acknowledgements or Bankers' Acceptances except as have already been
obtained.
10. The making of the Loans and the application of the proceeds thereof
as provided in the Credit Agreement do not violate or require filings under
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
11. All Obligations of Company under the Credit Agreement are within
the definition of "Senior Debt" in the indenture pursuant to which the
Subordinated Debentures have been issued.
This opinion is being delivered upon the express instructions
of each of the Company and the Borrowers to the Agents, the Arranger and the
Lenders, and their permitted assignees and participants, and is solely for their
benefit in connection with the above transactions. This opinion may not be
relied upon for any other purpose, or relied upon by any other person, firm or
corporation for any purpose, without prior written consent; provided, however,
that each of the Agents, the Arranger and the Lenders, and their permitted
assignees and participants, may provide this opinion (i) to bank examiners and
other regulatory authorities should they so request or in connection with their
normal examinations, (ii) to its respective independent auditors and attorneys,
(iii) pursuant to order or legal process of any court or governmental agency,
(iv) in connection with any action to which it is a party arising out of the
transactions contemplated by the Credit Agreement, or (v) to prospective
assignees of, or participants in, all or any portion of its Loans, Bankers'
Acceptances, participations in Letters of Credit or Commitments under the Credit
Agreement.
Very truly yours,
6
EXHIBIT VIII-A
FORM OF OPINION OF OSLER, XXXXXX & HARCOURT
September __, 1996
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
000 Xxxx Xxxxxx Xxxx 00xx Xxxxx
Xxx 00
Xxxxxxx Xxxxxxx XXX 0X0 Xxxxxx
and
Chase Securities Australia Limited,
as Australian Administrative Agent
Xxxxx 00 AAP Center
000 Xxxxxx Xxxxxx
Xxxxxx XXX Xxxxxxxxx 0000
and
Chase Securities Inc.,
as Arranger
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
The Chase Manhattan Bank,
as Administrative Agent
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
and
Canadian Imperial Bank of Commerce,
as Documentation Agent
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
1
and the Lenders Listed
on Schedule I Hereto
Re: Credit Agreement dated as of September 20, 1996 among Homestake
Mining Company, Homestake Mining Company of California, Homestake
Canada Inc., Homestake Gold of Australia Limited, the Lenders
named therein, The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent, Chase Securities Australia Limited, as
Australian Administrative Agent, Chase Securities Inc., as
Arranger, The Chase Manhattan Bank, as Administrative Agent, and
Canadian Imperial Bank of Commerce, as Documentation Agent (the
"Credit Agreement")
Dear Sirs/Mesdames:
We have acted as Canadian counsel to Homestake Canada Inc. (the
"Canadian Borrower") in connection with the execution and delivery of the
above-noted Credit Agreement and certain transactions relating thereto. All
terms used herein that are defined in the Credit Agreement have the respective
meanings specified in the Credit Agreement. This letter is being delivered to
you in satisfaction of the condition set forth in subsection 3.1E of the Credit
Agreement and with the understanding that you are entering into the Credit
Agreement in reliance on the opinions expressed herein.
In our capacity as such counsel, we have examined the
originals, or copies identified to our satisfaction as being true copies, of
such records, documents or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. These records,
documents and instruments include the following:
(a) The Re-stated Articles of Incorporation and amendments thereto
(collectively, the "Articles of Incorporation") of the Canadian
Borrower;
(b) The By-Laws of the Canadian Borrower;
(c) Certain records of proceedings and actions of the Board of
Directors of the Canadian Borrower;
(d) The Credit Agreement and the Exhibits and Schedules annexed
thereto;
(e) The Notes and Grid Gold Acknowledgements; and
2
(f) The form of Drafts.
We have been furnished with, and have relied upon, a
certificate of incumbency of the Canadian Borrower setting forth the directors
and officers of the Canadian Borrower and certain of their respective
signatures.
We have also been furnished with, and have relied upon, such
certificates from public officials as we have deemed necessary, desirable or
appropriate to render the opinions herein.
We have assumed the genuineness and authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies, drafts or forms. In making our examination
of documents executed or to be executed by Persons other than the Canadian
Borrower we have assumed that such other Persons had or have the power to enter
into and perform all their respective obligations thereunder (including without
limitation the legal capacity of all such Persons who are individuals) and have
also assumed the due authorization by all requisite action and execution and
delivery of such documents by such Persons and the validity and binding effect
thereof in relation to such Persons.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are solicitors qualified
to carry on the practice of law in the Province of Ontario and we express no
opinion as to any laws, or any matters governed by any laws, other than the laws
of the Province of Ontario and the federal laws of Canada applicable in the
Province of Ontario.
On the basis of the foregoing and subject to the qualifications
set forth below, we are of the opinion that:
1. The Canadian Borrower is a corporation duly incorporated and
validly existing under the laws of the Province of Ontario and has all the
powers of a natural person including all requisite corporate power and authority
(i) to own and lease its properties and assets; (ii) to carry on its business as
presently conducted; and (iii) to execute, deliver and perform the Credit
Agreement, the Notes issued by the Canadian Borrower (the "Canadian Notes"), the
Grid Gold Acknowledgements issued by the Canadian Borrower (the "Canadian Grid
Gold Acknowledgements") and all Bankers' Acceptances sold by it from time to
time and to carry out the transactions contemplated thereby.
2. The Canadian Borrower is registered as an extra-provincial
corporation in the Province of British Columbia.
3
3. The execution, delivery and performance of the Credit
Agreement and the issuance of the Canadian Notes, the Canadian Grid Gold
Acknowledgements and from time to time Banker's Acceptances by the Canadian
Borrower have been duly authorized by all necessary corporate action on the part
of the Canadian Borrower, and the Credit Agreement, the Canadian Notes and the
Canadian Grid Gold Acknowledgements have been duly executed and delivered by the
Canadian Borrower.
4. (a) The choice of the law of the State of New York,
without giving effect to the conflicts of laws rules thereof, as the governing
law of the Credit Agreement, the Canadian Notes, the Canadian Grid Gold
Acknowledgements and the Bankers' Acceptances is a valid and effective choice of
law under the laws of the Province of Ontario.
(b) In proceedings brought before a court of competent
jurisdiction in the Province of Ontario, the laws of the State of New York
would, to the extent specifically pleaded and proved with respect to the Credit
Agreement, the Canadian Notes, the Canadian Grid Gold Acknowledgements or the
Bankers' Acceptances as a fact by expert evidence, be recognized and applied by
such court to all issues which are to be determined in accordance with such
laws, except that in any such proceedings, such court (i) will apply those laws
of the Province of Ontario which it characterizes as procedural and will not
apply those laws of the State of New York as such court characterizes as
procedural; and (ii) will not apply those laws of the State of New York which a
court of the Province of Ontario would characterize as revenue, expropriatory,
penal or similar laws or the application of which would be inconsistent with
public policy, as such term is applied by such court.
(c) No provision of the Credit Agreement, the Canadian
Notes, the Canadian Grid Gold Acknowledgements or the Bankers' Acceptances is
inconsistent with public policy, as such term is applied by the courts of the
Province of Ontario.
(d) The submission in the Credit Agreement by the
Canadian Borrower to the non-exclusive jurisdiction of the courts of the State
of New York is binding and enforceable against the Canadian Borrower.
5. None of the execution and delivery of the Credit
Agreement by the Canadian Borrower, the issuance of the Canadian Notes, the
Canadian Grid Gold Acknowledgements and the Bankers' Acceptances by the Canadian
Borrower, the consummation of the transactions contemplated by the Credit
Agreement, or the compliance with the terms and conditions thereof by the
Canadian Borrower conflicts with, results in a breach or a violation of, or
constitutes a default under, any of the terms, conditions or provisions of the
Articles of Incorporation or By-Laws of the Canadian Borrower, or any statute,
rule or regulation of the Province of Ontario or the federal government of
Canada applicable therein that is binding on the Canadian Borrower.
4
6. We have not been retained by the Canadian Borrower in
connection with any action, suit or proceeding pending or presently threatened
against or affecting the Canadian Borrower at law or in equity before any court,
arbitrator or administrative or governmental body.
7. No consent, approval, registration, declaration or filing
of the Province of Ontario or the federal government of Canada applicable
therein are required to be obtained or made by the Canadian Borrower in
connection with the execution, delivery and performance by the Canadian Borrower
or the enforceability against the Canadian Borrower of the Credit Agreement, the
Notes, the Grid Gold Acknowledgements or the Bankers' Acceptances.
8. In any bankruptcy proceeding under the Bankruptcy and
Insolvency Act (Canada), the obligation of payment of the Canadian Borrower
under the Credit Agreement, the Canadian Notes, the Canadian Grid Gold
Acknowledgement and the outstanding Bankers' Acceptances will rank at least pari
passu with the claims of all other creditors of the Canadian Borrower which are
not secured or preferred creditors of the Canadian Borrower within the meaning
of that statute or which are not otherwise entitled to priority by statute.
9. The Canadian Borrower is not entitled to claim immunity from
legal process of the enforcement of any judgement of a court of competent
jurisdiction, whether generally or in relation to any specific assets.
10. A final and conclusive judgement in personam granted by a
court of competent jurisdiction in the State of New York may be enforced in an
Ontario court by an action or counterclaim for the amount due under such
judgement, provided that:
(a) the judgement was obtained after proper service of process under
New York law in connection with the action in which the
jurisdiction was obtained;
(b) the New York court acted within its jurisdiction under New York
law;
(c) the judgement is final and conclusive, and no stay of execution
has been ordered by the New York law;
(d) the judgement is not impeachable as void or voidable or otherwise
ineffective under New York law;
(e) the judgement was not obtained by fraud or any manner contrary to
the rules of natural justice, the judgement and the enforcement
thereof are not inconsistent with public policy (as such term is
applied by the Ontario court);
5
(f) the judgement is for a fixed sum of money which is not to be
determined at a future time, and the enforcement of the judgement
in the Province of Ontario does not constitute, directly or
indirectly, the enforcement of laws characterized by the
applicable Ontario court as being of revenue, expropriatory,
penal, or public law nature;
(g) no new admissible evidence relevant to the action which was the
subject matter of the judgement is discovered or arises prior to
the enforcement of the judgement by the Ontario court;
(h) the action to enforce the judgment is commenced against the
judgement debtor in the Ontario court within the applicable
limitation period; and
(i) the Ontario court may give judgement in Canadian currency only.
This opinion is being delivered upon the express instructions
of the Canadian Borrower to the Agents, Arranger and the Lenders and their
permitted assignees and participants and is solely for their benefit in
connection with the above transactions. This opinion may not be relied upon for
any other purpose, or relied upon by any other person, firm or corporation for
any purpose, without our prior written consent; provided, however, that each of
the Agents, Arranger and the Lenders and their permitted assignees and
participants may provide this opinion (i) to bank examiners and other regulatory
authorities should they so request or in connection with their normal
examinations, (ii) to its respective independent auditors and attorneys, (iii)
pursuant to order or legal process of any court or governmental agency or other
binding statutory requirement, (iv) in connection with any action to which it is
a party arising out of the transactions contemplated by the Credit Agreement, or
(v) to prospective assignees of, or participants in, all or any portion of its
Loans, Bankers' Acceptances, participations in Letters or Credit or Commitments
under the Credit Agreement.
Yours very truly,
6
EXHIBIT VIII-B
FORM OF OPINION OF XXXXXX & XXXXXX
September __, 1996
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
000 Xxxx Xxxxxx Xxxx 00xx Xxxxx
Xxx 00
Xxxxxxx Xxxxxxx XXX 0X0 Xxxxxx
and
Chase Manhattan Securities Limited,
as Australian Administrative Agent
Xxxxx 00 AAP Center
000 Xxxxxx Xxxxxx
Xxxxxx XXX Xxxxxxxxx 0000
and
Chase Securities Inc.,
as Arranger
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
The Chase Manhattan Bank,
as Administrative Agent
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
and
Canadian Imperial Bank of Commerce,
as Documentation Agent
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
1
and the Lenders Listed
on Schedule I Hereto
Re: Credit Agreement dated as of September 20, 1996 among Homestake
Mining Company, Homestake Mining Company of California, Homestake
Canada Inc., Homestake Gold of Australia Limited, the Lenders
named therein, The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent, Chase Manhattan Securities Limited, as
Australian Administrative Agent, Chase Securities Inc., as
Arranger, The Chase Manhattan Bank, as Administrative Agent, and
Canadian Imperial Bank of Commerce, as Documentation Agent (the
"Credit Agreement")
Ladies and Gentlemen:
We have acted as Australian counsel to Homestake Gold of
Australia Limited (the "Australian Borrower") in connection with the execution
and delivery of the above-noted Credit Agreement and certain transactions
relating thereto. All terms used herein that are defined in the Credit Agreement
have the respective meanings specified in the Credit Agreement. This letter is
being delivered to you in satisfaction of the condition set forth in subsection
3.1E of the Credit Agreement and with the understanding that you are entering
into the Credit Agreement in reliance on the opinions expressed herein.
In our capacity as such counsel, we have examined the
originals, or copies identified to our satisfaction as being true copies, of
such records, documents or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. These records,
documents and instruments include the following:
(a) The Certificate of Incorporation of the Australian Borrower;
(b) The Memorandum and Articles of Association of the Australian
Borrower;
(c) Certain records of proceedings and actions of the Board of
Directors of the Australian Borrower;
(d) The Credit Agreement and the Exhibits and Schedules annexed
thereto; and
(e) The Notes and Grid Gold Acknowledgements.
We have been furnished with, and have relied upon, a
certificate of incumbency of the Australian Borrower setting forth the directors
and officers of the
2
Australian Borrower authorized to sign documents in connection with the Credit
Agreement and their respective signatures.
We have conducted a search of the Australian Borrower at the
Australian Securities Commission on [insert date] and relied on the correctness
of the results of that search.
We have assumed the genuineness and authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies, drafts or forms. In making our examination
of documents executed or to be executed by Persons other than the Australian
Borrower we have assumed that such other Persons had or have the power to enter
into and perform all obligations thereunder (including without limitation the
legal capacity of all such Persons who are individuals) and have also assumed
the due authorization by all requisite action and execution and delivery of such
documents by such Persons and the validity and binding effect thereof in
relation to such Persons.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are [solicitors]
qualified to carry on the practice of law in the Commonwealth of Australia and
we express no opinion as to any laws, or any matters governed by any laws, other
than the laws of the Commonwealth of Australia and its States and Territories.
On the basis of the foregoing, and in reliance thereon, and
subject to the limitations, qualifications and exceptions set forth below, we
are of the opinion that:
1. The Australian Borrower is a corporation duly incorporated
and validly existing under the laws of the Commonwealth of Australia and its
States and Territories and has all the powers of a natural person including all
requisite corporate power and authority (i) to own and lease its properties and
assets; (ii) to carry on its business; and (iii) to execute, deliver and perform
the Credit Agreement, the Notes and the Grid Gold Acknowledgements and to carry
out the transactions contemplated thereby.
2. The execution, delivery and performance of the Credit
Agreement and the issuance of the Notes and the Grid Gold Acknowledgements by
the Australian Borrower have been duly authorized by all necessary corporate
action on the part of the Australian Borrower and have been validly executed by
the Australian Borrower.
3. The Credit Agreement, the Notes and the Grid Gold
Acknowledgements constitute valid and legally binding and enforceable
obligations of the Australian Borrower in accordance with their respective
terms.
3
4. (a) The choice of the law of the State of New York, without
giving effect to the conflicts of laws rules thereof, as the governing law of
the Credit Agreement, the Notes and the Grid Gold Acknowledgements is a valid
and effective choice of law under the laws of the Commonwealth of Australia and
its States and Territories.
(b) In proceedings brought before a court of competent
jurisdiction in the Commonwealth of Australia, the laws of the State of New York
would, to the extent specifically pleaded and proved as a fact by expert
evidence, be recognized and applied by such court to all issues which, under the
conflicts of laws rules of the Commonwealth of Australia, are to be determined
in accordance with the proper or governing law of contract, except that in any
such proceedings, [such court (i) will apply those laws of the Commonwealth of
Australia which it characterizes as procedural and will not apply those laws of
the State of New York as such court characterizes as procedural; (ii) will not
apply those laws of the State of New York which a court of the Commonwealth of
Australia would characterize as revenue, expropriatory, penal or similar laws or
the application of which would be inconsistent with public policy, as such term
is applied by such court; and (iii) may only give judgment in Australian
dollars.]
(c) No provision of the Credit Agreement, the Notes or the
Grid Gold Acknowledgements is inconsistent with public policy, as such term is
applied by the courts of the Commonwealth of Australia.
(d) The submission in the Credit Agreement by the
Australian Borrowers to the non-exclusive jurisdiction of the courts of the
State of New York is legal, valid and binding.
5. None of the execution and delivery of the Credit Agreement
by the Australian Borrower, the issuance of the Notes and the Grid Gold
Acknowledgements by the Australian Borrower, the consummation of the
transactions contemplated by the Credit Agreement, or the compliance with the
terms and conditions thereof by the Australian Borrower conflicts with, results
in a breach or a violation of, or constitutes a default under, any of the terms,
conditions or provisions of the Memorandum and Articles of Association of the
Australian Borrower, or any statute, rule or regulation of the Commonwealth of
Australia and its States and Territories that is binding on the Australian
Borrower.
6. We have not been retained by the Australian Borrower in
connection with any action, suit or proceeding pending or threatened against or
affecting the Australian Borrower at law or in equity before any court,
arbitrator or administrative or governmental body.
4
7. No federal Australian governmental consents, approvals,
registrations, declarations or filings are required to be obtained or made by
the Australian Borrower in connection with the execution, delivery or
performance of the Australian Borrower's obligations under the Credit Agreement,
the Notes or the Grid Gold Acknowledgements in order to ensure the legality,
enforceability or admissibility of the documents or for any reason whatsoever.
8. No ad valorem stamp duty or similar documentary tax or duty
in or of any State or Territory of the Commonwealth of Australia will be
applicable with respect to the execution and delivery of the Credit Agreement,
the Notes or the Grid Gold Acknowledgements and the performance by the
Australian Borrower of its obligations under those documents.
9. The monetary obligations of the Australian Borrower under
the Credit Agreement, the Notes and the Grid Gold Acknowledgements rank pari
passu with all other unsecured, unsubordinated indebtedness of the Australian
Borrower, other than obligations preferred by law.
10. Based only on searches referred to above, no winding up
orders have been made or resolutions passed for the winding up of the Australian
Borrower.
11. The Australian Borrower does not enjoy any immunity from
suit in the Courts of the Commonwealth of Australia or its States and
Territories and its assets are not exempt from execution.
This opinion is being delivered upon the express instructions
of the Australian Borrower to the Agents, Arranger and the Lenders and their
permitted assignees and participants and is solely for their benefit in
connection with the above transactions. This opinion may not be relied upon for
any other purpose, or relied upon by any other person, firm or corporation for
any purpose, without our prior written consent; provided, however, that each of
the Agents, Arranger and the Lenders and their permitted assignees and
participants may provide this opinion (i) to bank examiners and other regulatory
authorities should they so request or in connection with their normal
examinations, (ii) to its respective independent auditors and attorneys, (iii)
pursuant to order or legal process of any court or governmental agency, (iv) in
connection with any action to which it is a party arising out of the
transactions contemplated by the Credit Agreement, or (v) to prospective
assignees of, or participants in, all or any portion of its Loans, Bankers'
Acceptances, participations in Letters or Credit or Commitments under the Credit
Agreement.
Yours very truly,
5
EXHIBIT IX
FORM OF OPINION OF O'MELVENY & XXXXX LLP
[O'M&M Letterhead]
September
-----
1 9 9 6
133,020-036
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
000 Xxxx Xxxxxx Xxxx 00xx Xxxxx
Xxx 00
Xxxxxxx Xxxxxxx
XXX 0X0 Xxxxxx
and
Chase Manhattan Securities Limited,
as Australian Administrative Agent
Xxxxx 00 AAP Center
000 Xxxxxx Xxxxxx
Xxxxxx XXX Xxxxxxxxx 0000
and
Chase Securities Inc.,
as Arranger
000 Xxxx Xxxxxx
Xxx Xxxx XX 00000
and
The Chase Manhattan Bank
as Administrative Agent
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
1
and
Canadian Imperial Bank of Commerce,
as Documentation Agent
Commerce Court West
Toronto Ontario
X0X 0X0 Xxxxxx
and the Lenders Listed
on Schedule I Hereto
Credit Agreement dated as of September 20, 1996 among Homestake
Mining Company, Homestake Mining Company of California, Homestake
Canada Inc., Homestake Gold of Australia Limited, the Lenders
named therein, The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent, Chase Manhattan Securities Limited, as
Australian Administrative Agent, Chase Securities Inc., as
Arranger, The Chase Manhattan Bank, as Administrative Agent, and
Canadian Imperial Bank of Commerce, as Documentation Agent
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank, as
Administrative Agent (in such capacity, "Administrative Agent"), in connection
with the preparation and delivery of that certain Credit Agreement dated as of
September 20, 1996 (the "Credit Agreement") among Homestake Mining Company, a
Delaware corporation ("Company"), Homestake Mining Company of California, a
California corporation ("U.S. Borrower"), Homestake Canada Inc., an Ontario
corporation ("Canadian Borrower"), Homestake Gold of Australia Limited, a South
Australia corporation ("Australian Borrower"), the financial institutions listed
therein as the Lenders (collectively, "Lenders"), the Agents named therein
(including the Administrative Agent) and the Arranger named therein and in
connection with the preparation and delivery of certain related documents.
We have participated in various conferences with
representatives of the Company, U.S. Borrower, Canadian Borrower, and Australian
Borrower and with your representatives and Blake, Xxxxxxx & Xxxxxxx, Canadian
counsel for the Agents, and Xxxxxx & Xxxxxx, Australian counsel for the Agents,
during which the Credit Agreement and related matters have been discussed, and
we have also participated in the meeting held on the date hereof incident to the
occurrence of the Effective Date under the Credit Agreement.
2
We have reviewed the forms of the Credit Agreement and the
exhibits thereto, including the promissory notes delivered by U.S. Borrower,
Canadian Borrower, and Australian Borrower, which forms are annexed thereto, and
the Grid Gold Acknowledgements, which forms are annexed thereto, and the
opinions of Xxxxx Xxxx, General Counsel of Company, Thelen, Marrin, Xxxxxxx &
Xxxxxxx, special New York counsel to Company and Borrowers, Osler, Xxxxxx &
Harcourt, special Canadian counsel to Canadian Borrower, and Xxxxxx & Xxxxxx,
special Australian counsel to Australian Borrower (collectively, the "Opinions")
and the officers' certificates and other documents delivered on the Effective
Date.
We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals or copies and the due
authority of all persons executing the same, and we have relied as to factual
matters on the documents that we have reviewed.
Based on and subject to the foregoing, we are of the opinion
that the Credit Agreement constitutes the legally valid and binding obligation
of the Company and the Borrowers enforceable against the Company and the
Borrowers in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws) and by general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
Our opinion in the preceding paragraph as to the enforceability
of the Credit Agreement is subject to:
(i) public policy considerations, statutes or
court decisions that may limit the rights of a
party to obtain indemnification against its
own gross negligence, willful misconduct or
unlawful conduct;
(ii) the unenforceability under certain
circumstances of broadly or vaguely stated
waivers or waivers of rights granted by law
where the waivers are against public policy or
prohibited by law;
(iii) the unenforceability under certain
circumstances of provisions appointing one
party as attorney-in-fact for an adverse
party;
(iv) the unenforceability under certain
circumstances of choice of law provisions; and
3
(v) the unenforceability under certain
circumstances of rights of set-off granted to
a Lender in respect of amounts owing by an
Affiliate of such Lender or with respect to
loans in which participations have been
granted purported to be provided for in the
Credit Agreement.
We express no opinion as to the effect of non-compliance by you
with any state or federal laws or regulations applicable to the transactions
contemplated by the Credit Agreement because of the nature of your business.
We advise you that provisions of the Credit Agreement which
provide for jurisdiction of the courts of New York may not be binding on the
courts in the forum(s) selected or excluded.
In addition, although we have not independently considered all
of the matters covered by the Opinions to the extent necessary to enable us to
express the conclusions therein stated, we believe that the Opinions and the
officers' certificates and other documents delivered in connection with the
execution and delivery of, and as conditions to the effectiveness of, the Credit
Agreement are substantially responsive to the requirements of the Credit
Agreement.
The law covered by this opinion is limited to the present
federal law of the United States, and the present law of the State of New York.
We express no opinion as to the laws of any other jurisdiction and no opinion
regarding the statutes, administrative decisions, rules or regulations of any
county, municipality or special political subdivision or other local authority.
We express no opinion concerning federal or state securities laws or
regulations.
This opinion is furnished by us as counsel for the
Administrative Agent and may be relied upon by you only in connection with the
Credit Agreement. It may not be used or relied upon by you for any other purpose
or by any other person for any purpose whatsoever without in each instance our
prior written consent. You may, however, deliver a copy of this opinion to
permitted assignees under the Credit Agreement in connection with such
assignment, and such assignees may rely on this opinion as if it were addressed
and had been delivered to them on the date hereof.
Respectfully submitted,
4
EXHIBIT X-A
FORM OF ASSIGNMENT AND ACCEPTANCE
(CANADIAN LENDER)
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") is dated as
of ____________, ____ and entered into by and between [NAME OF LENDER]
("Assignor") and _____________________ ("Assignee").
RECITALS
WHEREAS, Assignor has entered into a Credit Agreement dated as
of September 20, 1996 (said Credit Agreement, as amended, supplemented or
otherwise modified to the date hereof and as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined) with Homestake Mining Company, a Delaware
corporation ("Company"), Homestake Mining Company of California, a California
corporation ("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation
("Canadian Borrower"), Homestake Gold of Australia Limited, a South Australia
corporation ("Australian Borrower"), the financial institutions listed therein
as Lenders ("Lenders"), The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent for Lenders ("Canadian Administrative Agent"), Chase
Manhattan Securities Limited, as Australian Administrative Agent for Lenders
("Australian Administrative Agent"), Chase Securities Inc., as Arranger for
Lenders ("Arranger"), The Chase Manhattan Bank, as Administrative Agent for
Lenders ("Administrative Agent"), and Canadian Imperial Bank of Commerce, as
Documentation Agent for Lenders ("Documentation Agent");
WHEREAS, Assignor is a Canadian Lender under the Credit
Agreement and Assignee will, upon giving effect to this Agreement, likewise be a
Canadian Lender;
WHEREAS, Assignor has a Commitment under the Credit Agreement
pursuant to which Assignor is required (i) to make Loans to Canadian Borrower
pursuant to subsection 2.1A(i) of the Credit Agreement; (ii) to purchase
participations in Canadian Letters of Credit pursuant to subsection 2.7D of the
Credit Agreement (any such participations in any such Letters of Credit
outstanding as of the date hereof being the "Assignor Participations"); and
(iii) to create and accept Bankers' Acceptances pursuant to subsection 2.8A of
the Credit Agreement.
1
[WHEREAS, Assignor has issued certain outstanding Canadian
Letters of Credit (the "Assignor Letters of Credit") pursuant to subsection 3.3
of the Credit Agreement;][INSERT IF THE CHASE MANHATTAN BANK OF CANADA IS
ASSIGNOR AND CANADIAN LETTERS OF CREDIT ARE OUTSTANDING TO CANADIAN BORROWER]
WHEREAS, Assignor desires to assign to Assignee its rights and
obligations as a Canadian Lender under the Credit Agreement and the other Loan
Documents with respect to all or a portion of Assignor's Canadian Commitment,
including its commitment to create and accept Bankers' Acceptances, and any
Canadian Loans and Bankers' Acceptances or Assignor Participations outstanding
thereunder [and to sell to Assignee a participation in the Assignor Letters of
Credit (the "Assignee Participation") equal to the participation required to be
purchased therein pursuant to subsection 2.7D of the Credit Agreement], and
Assignee has agreed to assume the obligations of Assignor under the Loan
Documents to the extent of the rights and obligations so assigned [and to
purchase the Assignee Participation]; and
[WHEREAS, Assignor is also the [U.S./Australian] Lender for its
Lending Unit, and Assignor is concurrently herewith entering into an Assignment
and Acceptance with [Name of Assignee or Assignee's U.S./Australian affiliate]
(the "[U.S./Australian] Assignee") whereby Assignor is assigning to the
[U.S./Australian] Assignee that portion of its rights and obligations with
respect to its [U.S./Australian] Commitment which corresponds to the Percentage,
as defined below;]
[WHEREAS, Assignor's Lending Unit consists of the Assignor and
[Name of U.S./Australian Lender of Assignor's Lending Unit] ("Assignor's Lending
Unit Affiliate"), and Assignor's Lending Unit Affiliate is concurrently herewith
entering into an Assignment and Acceptance with [Name of Assignee or Assignee's
U.S./Australian affiliate] (the "[U.S./Australian] Assignee") whereby Assignor's
Lending Unit Affiliate is assigning to the [U.S./Australian] Assignee that
portion of its rights and obligations with respect to its [U.S./Australian]
Commitment which corresponds to the Percentage, as defined below;]
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
SECTION 1. Assignment and Assumption.
(a) Assignor hereby assigns to Assignee, effective upon the
receipt of the consideration set forth in Section 1(c) and Administrative
Agent's receipt of any processing and recordation fee required under subsection
10.1B of the Credit Agreement, without recourse, representation or warranty
(except as expressly set forth herein), an undivided _____% interest (the
"Percentage") in all of Assignor's rights and obligations as a Lender
2
arising under the Credit Agreement and the other Loan Documents relating to
Assignor's Canadian Commitment, including its commitment to create and accept
Bankers' Acceptances, and any Canadian Loans and Bankers' Acceptances and
Assignor Participations outstanding thereunder [and concurrently therewith sells
to Assignee, without recourse, representation or warranty (except as expressly
set forth herein), the Assignee Participation].
(b) Assignee hereby assumes from Assignor, and Assignor is
hereby expressly and absolutely released from, the Percentage of all of
Assignor's obligations arising under the Loan Documents relating to Assignor's
Canadian Commitment, including its commitment to create and accept Bankers'
Acceptances, and any Canadian Loans and Bankers' Acceptances and Assignor
Participations outstanding thereunder, including without limitation all such
obligations with respect to any Canadian Loans to be made and any participations
in Canadian Letters of Credit to be purchased, pursuant to the Credit Agreement
[, and Assignee hereby purchases from Assignor the Assignee Participation].
(c) Notwithstanding any provisions of this Agreement to the
contrary, each of the Assignor and Assignee hereby acknowledges and confirms its
understanding and agreement that the Canadian Commitments of the Canadian
Lenders under the Credit Agreement may from time to time be increased or
decreased by the Borrowers in accordance with subsection 2.1A of the Credit
Agreement through changes in the Canadian Allocation, provided that the Canadian
Allocation may not at any time exceed the aggregate amount of the Commitments of
all Lending Units then in effect. Each of the Assignor and Assignee acknowledges
that the Percentage interest in the Canadian Commitment being assigned and
assumed hereunder equals the Assignee's Pro Rata Share, as set forth on Annex II
attached hereto, of the Commitments as in effect on and after the date upon
which this Agreement becomes effective.
(d) Assignor hereby represents and warrants that as of the
effective date of this Agreement the respective amounts of unpaid principal,
accrued but unpaid interest, accrued but unpaid fees, and discounts and BA Fees
relating to Bankers' Acceptances, in each case with respect to the Percentage of
Assignor's rights under the Credit Agreement relating to Assignor Canadian
Commitment and any Canadian Loans and Bankers' Acceptances and Assignor
Participations outstanding thereunder [and with respect to the Assignee
Participation] are as set forth on Annex I attached hereto. In consideration of
Assignor's assignment, Assignee hereby agrees to pay to Assignor, on the
effective date of this Agreement, the amount(s) of $_________________ [and
Cdn.$_______________] in immediately available funds by wire transfer to
Assignor's office at
_____________________.
(e) Assignor and Assignee hereby agree that Annex II attached
hereto sets forth the amount of the Canadian Commitment, any Canadian Loans and
Bankers' Acceptances and participations by Assignee in any Canadian Letters of
Credit outstanding
3
under the Commitment and the Pro Rata Share of Assignee after giving effect to
the assignment and assumption [and the sale and purchase] described above.
(f) Assignor and Assignee hereby agree that, upon giving effect
to the assignment and assumption [and the sale and purchase] described above,
Assignee shall be a party to the Credit Agreement as a Canadian Lender
thereunder, and shall have all of the rights and obligations under the Loan
Documents of, and shall be deemed to have made all of the covenants and
agreements contained in the Loan Documents made by, a Canadian Lender having the
Canadian Commitment, the outstanding Canadian Loans, the outstanding Bankers'
Acceptances, the aggregate participation in outstanding Canadian Letters of
Credit and the Pro Rata Share of Assignee as reflected on Annex II attached
hereto. Assignee hereby acknowledges and agrees that the agreement set forth in
this subsection 1(f) is expressly made for the benefit of Company, Borrowers,
Canadian Administrative Agent, Administrative Agent, Assignor and the other
Lenders and their respective successors and permitted assigns.
(g) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect [(A)] the
assignment by Assignor and the assumption by Assignee of the Percentage of
Assignor's rights and obligations with respect to Assignor's Canadian
Commitment, including its commitment to create and accept Bankers' Acceptances,
and any Canadian Loans and Bankers' Acceptances and Assignor Participations
outstanding thereunder and all rights and obligations under the Loan Documents
with respect thereto [and (B) the sale by Assignor and the purchase by Assignee
of the Assignee Participation], (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to Assignor's Canadian
Commitment, including its commitment to create and accept Bankers' Acceptances,
and any Canadian Loans and Bankers' Acceptances or Assignor Participations
outstanding thereunder [, and any other sales by Assignor of participations in
the Assignor Letters of Credit,] shall have no effect on the Canadian
Commitment, including its commitment to create and accept Bankers' Acceptances,
the outstanding Canadian Loans, the outstanding Bankers' Acceptances, or the
aggregate participation in outstanding Canadian Letters of Credit or Pro Rata
Share of Assignee set forth on Annex II attached hereto, and (iii) from and
after the effective date of this Agreement, Administrative Agent shall make all
payments under the Credit Agreement in respect of the Percentage interest
assigned hereby [and the Assignee Participation] (including without limitation
all payments of principal and accrued but unpaid interest and commitment and
letter of credit fees with respect thereto) to Assignee, whether such amounts
(in the case of such interest and fees) have accrued prior to the effective date
of this Agreement or subsequent thereto.
SECTION 2. Certain Representations, Warranties and Agreements.
(a) Assignor represents and warrants that it is the legal
and beneficial owner of the Percentage interest being assigned by it hereunder
[and of the Assignee
4
Participation] and that such interest [is] [and the Assignee Participation are]
free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statement or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
by or on behalf of Company or any Borrower to Assignor or Assignee in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of the Company or any Borrower or any
other Person liable for the payment of any Obligations, nor shall Assignor be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Loan Documents or as to the use of the proceeds of the Loans or the use of
the Letters of Credit or the use of Bankers' Acceptances or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired its Percentage interest for its own account and
not with any present intention of selling all or any portion of such interest;
and that it has received, reviewed and approved copies of all Loan Documents.
(d) Assignee represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
each of the Borrowers and their respective Subsidiaries in connection with the
assignment evidenced by this Agreement and that it has made and shall continue
to make its own appraisal of the creditworthiness of the Company and the
Borrowers. Assignor shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Assignee or to provide Assignee with any credit or other
information with respect thereto, whether coming into its possession before the
making of the initial Loans or at any time or times thereafter, and Assignor
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to the
other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
5
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. Miscellaneous.
(a) Each party to this Agreement hereby agrees from time to
time, upon request of the other party hereto, to take such additional actions
and to execute and deliver such additional documents and instruments as such
other party may reasonably request to effect the transactions contemplated by,
and to carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(c) Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, telecopied, telexed or sent by United
States mail or Canadian mail or courier service and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of telecopy
or telex, or four Business Days after depositing it in the United States mail
(or five Business Days after depositing it in the Canadian mail), registered or
certified, with postage prepaid and properly addressed; provided that notices to
Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature page hereof or, as to either party, such other
address as shall be designated by such party in a written notice delivered to
the other party hereto. In addition, the address of Assignee set forth below its
name on the signature page hereof shall serve as the initial notice address of
Assignee for purposes of subsection 10.11 of the Credit Agreement.
(d) This Agreement shall not effect an assignment of any rights
or obligations relating to the U.S. Commitment or Australian Commitment of any
Lender. Assignor and Assignee acknowledge and confirm (i) that concurrently
herewith U.S. Assignee is entering into an Assignment and Acceptance with the
U.S. Lender of Assignor's Lending Unit whereby U.S. Assignee shall be assigned
and assume all rights and obligations of Assignor's Lending Unit with respect to
that portion of such Lending Unit's U.S. Commitment which corresponds to the
Percentage hereunder, (ii) that concurrently herewith Australian Assignee is
entering into an Assignment and Acceptance with the Australian Lender of
Assignor's Lending Unit whereby Australian Assignee shall be assigned and assume
all rights and obligations of Assignor's Lending Unit with respect to that
portion of such Lending Unit's Australian Commitment which corresponds to the
Percentage hereunder, and (ii) that after giving effect to such assignment and
assumption and the assignment and assumption to be effected hereunder, Assignee,
U.S. Assignee, and Australian Assignee shall have the same Pro Rata Shares under
the Credit Agreement. Assignee agrees that U.S. Assignee shall for all purposes
be the U.S. Lender of Assignee's
6
Lending Unit and that Australian Assignee shall for all purposes be the
Australian Lender of Assignee's Lending Unit and that the Commitment of such
Lending Unit shall equal the Assignee's Pro Rata Share (as set forth on Annex 1
annexed hereto) of the aggregate Commitments of all Lending Units as in effect
at any time on and after the date this Amendment becomes effective.
(e) The parties hereto acknowledge the provisions of subsection
2.2F of the Credit Agreement relating to disclosure under the Interest Act
(Canada) and agree that the provisions thereof shall apply to the disclosure and
calculation of nominal and effective rates of interest payable hereunder as if
such provisions were set forth herein.
(f) In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(g) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
(h) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
(i) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(j) This Agreement shall become effective upon the execution of
a counterpart hereof by each of Assignor and Assignee and the execution of a
counterpart hereof by Company and Borrowers (as evidence of their consent hereto
in accordance with subsection 10.1B(i) of the Credit Agreement) and
Administrative Agent (as evidence of its acceptance hereof in accordance with
subsection 10.1B(ii) of the Credit Agreement) and the receipt by Assignor,
Assignee, Canadian Administrative Agent and Administrative Agent of originals or
telecopies of such counterparts and authorization of delivery thereof.
(k) Assignee hereby appoints The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Manhattan Securities Limited, as
Australian Administrative Agent, Chase Securities Inc., as Arranger, The Chase
Manhattan Bank, as Administrative Agent, and Canadian Imperial Bank of Commerce,
as Documentation Agent, under the Credit Agreement and the other Loan Documents,
to exercise such
7
powers as are specified in Section 9 of the Credit Agreement and to be entitled
to such protections and indemnities as are afforded thereunder.
[(l) Assignee hereby agrees to deliver to Canadian Borrower
upon request such certificates, documents or other evidence as may be required
from time to time, properly completed and duly executed by Assignee, to
establish the basis for any applicable exemption from or a reduction of Taxes
with respect to any payment to Assignee of principal, interest, fees,
commissions, or any other amount payable under this Agreement, the Credit
Agreement or otherwise in respect of the Canadian Loans.] [INSERT IF ASSIGNEE IS
ORGANIZED UNDER THE LAWS OF ANY JURISDICTION OTHER THAN CANADA OR ANY PROVINCE
THEREOF OR IS NOT RESIDENT IN CANADA.]
(m) Each of the parties to this Agreement hereby waives its
rights to a jury trial of any claim or cause of action based upon or arising out
of this Agreement or any dealings between them relating to the transactions
contemplated by this Agreement.
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
Notice Address: Notice Address:
--------------------------- ---------------------------
--------------------------- ---------------------------
Consented to in accordance with Accepted in accordance with
subsection 10.1B(i) of the Credit subsection 10.1B(ii) of the
Agreement Credit Agreement
HOMESTAKE MINING THE CHASE MANHATTAN BANK,
as Administrative Agent
By: ----------------------- By:------------------------
Title: --------------------- Title:---------------------
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By:-----------------------
Title:--------------------
HOMESTAKE CANADA INC.
By:-----------------------
Title:--------------------
1
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:-----------------------
Title:--------------------
Receipt Acknowledged:
THE CHASE MANHATTAN BANK OF CANADA, as
Canadian Administrative Agent
By:-----------------------
Title:--------------------
2
ANNEX I
AMOUNTS OUTSTANDING
Outstanding Principal Amount:
Loans:
Dollar Loans: $_________
Canadian Dollar Loans: $_________
Gold Loans: _____Ounces
(interest to be paid in [Gold][Dollars
based on [a Price of Gold equal to
$____ per Ounce/Average daily value, in
Dollar Equivalents]]).
Total: $_________
Accrued But Unpaid Interest: $_________
Accrued But Unpaid Fees: $_________
Total Principal, Interest and Fees: $_________
Outstanding Bankers' Acceptance Face Amount: $_________
Discount: $_________
BA Fees: $_________
ANNEX II
ASSIGNEE'S CANADIAN COMMITMENT,
OUTSTANDING CANADIAN LOANS,
AGGREGATE PARTICIPATION IN
OUTSTANDING CANADIAN LETTERS OF CREDIT AND
PRO RATA SHARE AFTER ASSIGNMENT
Canadian Commitment:
Current Canadian Allocation $_________
Aggregate Commitments $_________
Pro Rata Share _____%
Current Canadian
Commitment $_________
Maximum Canadian
Commitment $_________
Outstanding Loans:
Dollar Loans $_________
Canadian Dollar Loans $_________
Gold Loans ______Ounces
Outstanding Bankers' Acceptance Face Amount: $_________
Aggregate participation in outstanding Canadian Letters of Credit:
Dollar Letters of Credit $_________
Canadian Dollar Letters of Credit $_________
Pro Rata Share ______%
EXHIBIT X-B
FORM OF ASSIGNMENT AND ACCEPTANCE
(U.S. LENDER)
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") is dated as
of ____________, ____ and entered into by and between [NAME OF LENDER]
("Assignor") and _____________________ ("Assignee").
RECITALS
WHEREAS, Assignor has entered into a Credit Agreement dated as
of September 20, 1996 (said Credit Agreement, as amended, supplemented or
otherwise modified to the date hereof and as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined) with Homestake Mining Company, a Delaware
corporation ("Company"), Homestake Mining Company of California, a California
corporation ("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation
("Canadian Borrower"), Homestake Gold of Australia Limited, a South Australia
corporation ("Australian Borrower"), the financial institutions listed therein
as Lenders ("Lenders"), The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent for Lenders ("Canadian Administrative Agent"), Chase
Manhattan Securities Limited, as Australian Administrative Agent for Lenders
("Australian Administrative Agent"), Chase Securities Inc., as Arranger for
Lenders ("Arranger"), The Chase Manhattan Bank, as Administrative Agent for
Lenders ("Administrative Agent"), and Canadian Imperial Bank of Commerce, as
Documentation Agent for Lenders ("Documentation Agent");
WHEREAS, Assignor is a U.S. Lender under the Credit Agreement
and Assignee will, upon giving effect to this Agreement, likewise be a U.S.
Lender;
WHEREAS, Assignor has a Commitment under the Credit Agreement
pursuant to which Assignor is required (i) to make Loans to U.S. Borrower
pursuant to subsection 2.1A(iii) of the Credit Agreement; and (ii) to purchase
participations in U.S. Letters of Credit pursuant to subsection 2.7D of the
Credit Agreement (any such participations in any such Letters of Credit
outstanding as of the date hereof being the "Assignor Participations");
1
[WHEREAS, Assignor has issued certain outstanding U.S. Letters
of Credit (the "Assignor Letters of Credit") pursuant to subsection 3.3 of the
Credit Agreement;] [INSERT IF THE CHASE MANHATTAN BANK IS ASSIGNOR AND U.S.
LETTERS OF CREDIT ARE OUTSTANDING TO U.S. BORROWER]
WHEREAS, Assignor desires to assign to Assignee its rights and
obligations as a U.S. Lender under the Credit Agreement and the other Loan
Documents with respect to all or a portion of Assignor's U.S. Commitment and any
U.S. Loans or Assignor Participations outstanding thereunder [and to sell to
Assignee a participation in the Assignor Letters of Credit (the "Assignee
Participation") equal to the participation required to be purchased therein
pursuant to subsection 2.7D of the Credit Agreement], and Assignee has agreed to
assume the obligations of Assignor under the Loan Documents to the extent of the
rights and obligations so assigned [and to purchase the Assignee Participation];
and
[WHEREAS, Assignor is also the [Canadian/Australian] Lender for
its Lending Unit, and Assignor is, concurrently herewith entering into an
Assignment and Acceptance with [Name of Assignee or Assignee's
Canadian/Australian affiliate] (the "[Canadian/Australian] Assignee") whereby
Assignor is assigning to the [Canadian/Australian] Assignee that portion of its
rights and obligations with respect to its [Canadian/Australian] Commitment
which corresponds to the Percentage, as defined below;]
[WHEREAS, Assignor's Lending Unit consists of the Assignor and
[Name of Canadian/Australian Lender of Assignor's Lending Unit] ("Assignor's
Lending Unit Affiliate"), and Assignor's Lending Unit Affiliate is concurrently
herewith entering into an Assignment and Acceptance with [Name of Assignee or
Assignee's Canadian/Australian affiliate] (the "[Canadian/Australian] Assignee")
whereby Assignor's Lending Unit Affiliate is assigning to the
[Canadian/Australian] Assignee that portion of its rights and obligations with
respect to its [Canadian/Australian] Commitment which corresponds to the
Percentage, as defined below;]
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
SECTION 1. Assignment and Assumption.
(a) Assignor hereby assigns to Assignee, effective upon the
receipt of the consideration set forth in Section 1(c) and Administrative
Agent's receipt of any processing and recordation fee required under subsection
10.1B of the Credit Agreement, without recourse, representation or warranty
(except as expressly set forth herein), an undivided _____% interest (the
"Percentage") in all of Assignor's rights and obligations as a Lender arising
under the Credit Agreement and the other Loan Documents relating to Assignor's
U.S. Commitment and any U.S. Loans and Assignor Participations outstanding
thereunder
2
[and concurrently therewith sells to Assignee, without recourse, representation
or warranty (except as expressly set forth herein), the Assignee Participation].
(b) Assignee hereby assumes from Assignor, and Assignor is
hereby expressly and absolutely released from, the Percentage of all of
Assignor's obligations arising under the Loan Documents relating to Assignor's
U.S. Commitment and any U.S. Loans and Assignor Participations outstanding
thereunder, including without limitation all such obligations with respect to
any U.S. Loans to be made and any participations in U.S. Letters of Credit to be
purchased, pursuant to the Credit Agreement [, and Assignee hereby purchases
from Assignor the Assignee Participation].
(c) Notwithstanding any provisions of this Agreement to the
contrary, each of the Assignor and Assignee hereby acknowledges and confirms its
understanding and agreement that the U.S. Commitments of the U.S. Lenders under
the Credit Agreement may from time to time be increased or decreased by the
Borrowers in accordance with subsection 2.1A of the Credit Agreement through
changes in the U.S. Allocation, provided that the U.S. Allocation may not at any
time exceed the aggregate amount of the Commitments of all Lending Units then in
effect. Each of the Assignor and Assignee acknowledges that the Percentage
interest in the U.S. Commitment being assigned and assumed hereunder equals the
Assignee's Pro Rata Share, as set forth on Annex II attached hereto, of the U.S.
Allocation of the Commitments as in effect on and after the date upon which this
Agreement becomes effective.
(d) Assignor hereby represents and warrants that as of the
effective date of this Agreement the respective amounts of unpaid principal,
accrued but unpaid interest and accrued but unpaid fees with respect to the
Percentage of Assignor's rights under the Credit Agreement relating to
Assignor's U.S. Commitment and any U.S. Loans and Assignor Participations
outstanding thereunder [and with respect to the Assignee Participation] are as
set forth on Annex I attached hereto. In consideration of Assignor's assignment,
Assignee hereby agrees to pay to Assignor, on the effective date of this
Agreement, the amount of $_________________ in immediately available funds by
wire transfer to Assignor's office at
_____________________.
(e) Assignor and Assignee hereby agree that Annex II attached
hereto sets forth the amount of the U.S. Commitment, any U.S. Loans and
participations by Assignee in any U.S. Letters of Credit outstanding under the
Commitment and the Pro Rata Share of Assignee after giving effect to the
assignment and assumption [and the sale and purchase] described above.
(f) Assignor and Assignee hereby agree that, upon giving effect
to the assignment and assumption [and the sale and purchase] described above,
Assignee shall be a party to the Credit Agreement as a U.S. Lender thereunder,
and shall have all of the
3
rights and obligations under the Loan Documents of, and shall be deemed to have
made all of the covenants and agreements contained in the Loan Documents made
by, a U.S. Lender having the U.S. Commitment, the outstanding U.S. Loans, the
aggregate participation in outstanding U.S. Letters of Credit and the Pro Rata
Share of Assignee as reflected on Annex II attached hereto. Assignee hereby
acknowledges and agrees that the agreement set forth in this subsection 1(f) is
expressly made for the benefit of Company, Borrowers, Administrative Agent,
Assignor and the other Lenders and their respective successors and permitted
assigns.
(g) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect [(A)] the
assignment by Assignor and the assumption by Assignee of the Percentage of
Assignor's rights and obligations with respect to Assignor's U.S. Commitment and
any U.S. Loans and Assignor Participations outstanding thereunder and all rights
and obligations under the Loan Documents with respect thereto [and (B) the sale
by Assignor and the purchase by Assignee of the Assignee Participation], (ii)
any other assignments by Assignor of a portion of its rights and obligations
with respect to Assignor's U.S. Commitment and any U.S. Loans or Assignor
Participations outstanding thereunder [, and any other sales by Assignor of
participations in the Assignor Letters of Credit,] shall have no effect on U.S.
Commitment, the outstanding U.S. Loans, the aggregate participation in
outstanding U.S. Letters of Credit or Pro Rata Share of Assignee set forth on
Annex II attached hereto, and (iii) from and after the effective date of this
Agreement, Administrative Agent shall make all payments under the Credit
Agreement in respect of the Percentage interest assigned hereby [and the
Assignee Participation] (including without limitation all payments of principal
and accrued but unpaid interest and commitment and letter of credit fees with
respect thereto) to Assignee, whether such amounts (in the case of such interest
and fees) have accrued prior to the effective date of this Agreement or
subsequent thereto.
SECTION 2. Certain Representations, Warranties and Agreements.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Percentage interest being assigned by it hereunder [and
of the Assignee Participation] and that such interest [is] [and the Assignee
Participation are] free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statement or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
by or on behalf of Company or any Borrower to Assignor or Assignee in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of the Company or any Borrower or any
other Person
4
liable for the payment of any Obligations, nor shall Assignor be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the use of the
Letters of Credit or as to the existence or possible existence of any Event of
Default or Potential Event of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired its Percentage interest for its own account and
not with any present intention of selling all or any portion of such interest;
and that it has received, reviewed and approved copies of all Loan Documents.
(d) Assignee represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
each of the Borrowers and their respective Subsidiaries in connection with the
assignment evidenced by this Agreement and that it has made and shall continue
to make its own appraisal of the creditworthiness of the Company and the
Borrowers. Assignor shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Assignee or to provide Assignee with any credit or other
information with respect thereto, whether coming into its possession before the
making of the initial Loans or at any time or times thereafter, and Assignor
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to the
other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. Miscellaneous.
(a) Each party to this Agreement hereby agrees from time to
time, upon request of the other party hereto, to take such additional actions
and to execute and deliver such additional documents and instruments as such
other party may reasonably request to effect the transactions contemplated by,
and to carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
5
(c) Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, telecopied, telexed or sent by United
States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of telecopy or telex, or
four Business Days after depositing it in the United States mail, registered or
certified, with postage prepaid and properly addressed; provided that notices to
Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature page hereof or, as to either party, such other
address as shall be designated by such party in a written notice delivered to
the other party hereto. In addition, the address of Assignee set forth below its
name on the signature page hereof shall serve as the initial notice address of
Assignee for purposes of subsection 10.11 of the Credit Agreement.
(d) This Agreement shall not effect an assignment of any rights
or obligations relating to the U.S. Commitment of any Lender. Assignor and
Assignee acknowledge and confirm (i) that concurrently herewith, Canadian
Assignee is entering into an Assignment and Acceptance with the Canadian Lender
of Assignor's Lending Unit whereby Canadian Assignee shall be assigned and
assume all rights and obligations of Assignor's Lending Unit with respect to
that portion of such Lending Unit's Canadian Commitment which corresponds to the
Percentage hereunder, (ii) that concurrently herewith, Australian Assignee is
entering into an Assignment and Acceptance with the Australian Lender of
Assignor's Lending Unit whereby Australian Assignee shall be assigned and assume
all rights and obligations of Assignor's Lending Unit with respect to that
portion of such Lending Unit's Australian Commitment which corresponds to the
Percentage hereunder, and (iii) that after giving effect to such assignment and
assumption and the assignment and assumption to be effected hereunder, Assignee,
Canadian Assignee, and Australian Assignee shall have the same Pro Rata Shares
under the Credit Agreement. Assignee agrees that Canadian Assignee shall for all
purposes be the Canadian Lender of Assignee's Lending Unit, Australian Assignee
shall for all purposes be the Australian Lender of Assignee's Lending Unit, and
that the Commitment of such Lending Unit shall equal the Assignee's Pro Rata
Share (as set forth on Annex 1 annexed hereto) of the aggregate Commitments of
all Lending Units as in effect at any time on and after the date this Amendment
becomes effective.
(e) In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(f) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
6
(g) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
(h) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(i) This Agreement shall become effective upon the execution of
a counterpart hereof by each of Assignor and Assignee and the execution of a
counterpart hereof by Company and Borrowers (as evidence of their consent hereto
in accordance with subsection 10.1B(i) of the Credit Agreement) and
Administrative Agent (as evidence of its acceptance hereof in accordance with
subsection 10.1B(ii) of the Credit Agreement), and the receipt by Assignor,
Assignee and Administrative Agent of originals or telecopies of such
counterparts and authorization of delivery thereof.
(j) Assignee hereby appoints The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Manhattan Securities Limited, as
Australian Administrative Agent, Chase Securities Inc., as Arranger, The Chase
Manhattan Bank as Administrative Agent, and Canadian Imperial Bank of Commerce,
as Documentation Agent, under the Credit Agreement and the other Loan Documents,
to exercise such powers as are specified in Section 9 of the Credit Agreement
and to be entitled to such protections and indemnities as are afforded
thereunder.
[(k) Assignee hereby agrees to deliver to U.S. Borrower such
certificates, documents or other evidence, properly and accurately completed and
duly executed by Assignee (including, without limitation, Internal Revenue
Service Form 1001 or Form 4224 or any other certificate or statement of
exemption required by Treasury Regulations Section 1.1441-4(a) or Section
1.1441-6(c) or any successor thereto) to establish that Assignee is not subject
to deduction or withholding of United States federal income tax under Section
1441 or 1442 of the Internal Revenue Code or otherwise (or under any comparable
provisions of any successor statute).] [INSERT IF ASSIGNEE IS ORGANIZED UNDER
THE LAWS OF ANY JURISDICTION OTHER THAN THE UNITED STATES OR ANY STATE THEREOF
OR IS NOT RESIDENT IN THE UNITED STATES.]
(l) Each of the parties to this Agreement hereby waives its
rights to a jury trial of any claim or cause of action based upon or arising out
of this Agreement or any dealings between them relating to the transactions
contemplated by this Agreement.
7
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
Notice Address: Notice Address:
--------------------------- ---------------------------
--------------------------- ---------------------------
Consented to in accordance Accepted in accordance with subsection
with subsection 10.1B(ii) of the 10.1B(i) of the Credit Agreement
Credit Agreement
HOMESTAKE MINING COMPANY THE CHASE MANHATTAN BANK,
as Administrative Agent
By: ---------------------- By:-------------------------
Title: ------------------- Title:----------------------
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By:----------------------
Title:-------------------
HOMESTAKE CANADA INC.
By:----------------------
Title:-------------------
1
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:----------------------
Title:-------------------
2
ANNEX I
AMOUNTS OUTSTANDING
Outstanding Principal Amount:
Loans:
Dollar Loans: $_________
Gold Loans: _____Ounces
(interest to be paid in [Gold][Dollars
based on [a Price of Gold equal to $____ per Ounce/Average
daily value, in Dollar Equivalents]]).
Total: $_________
Accrued But Unpaid Interest: $_________
Accrued But Unpaid Fees: $_________
Total Principal, Interest and Fees: $_________
ANNEX II
ASSIGNEE'S
U.S. COMMITMENT,
OUTSTANDING U.S. LOANS,
AGGREGATE PARTICIPATION IN
OUTSTANDING U.S. LETTERS OF CREDIT AND
PRO RATA SHARE AFTER ASSIGNMENT
U.S. Commitment:
Current U.S. Allocation $_________
Aggregate Commitments $_________
Pro Rata Share _____%
Current U.S. Commitment $_________
Maximum U.S. Commitment $_________
Outstanding Loans:
Dollar Loans $_________
Gold Loans ______Ounces
Aggregate participation in
outstanding U.S. Letters of Credit: $_________
Pro Rata Share ______%
EXHIBIT X-C
FORM OF ASSIGNMENT AND ACCEPTANCE
(AUSTRALIAN LENDER)
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") is dated as
of ____________, ____ and entered into by and between [NAME OF LENDER]
("Assignor") and _____________________ ("Assignee").
RECITALS
WHEREAS, Assignor has entered into a Credit Agreement dated as
of September 20, 1996 (said Credit Agreement, as amended, supplemented or
otherwise modified to the date hereof and as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined) with Homestake Mining Company, a Delaware
corporation ("Company"), Homestake Mining Company of California, a California
corporation ("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation
("Canadian Borrower"), Homestake Gold of Australia Limited, a South Australia
corporation ("Australian Borrower"), the financial institutions listed therein
as Lenders ("Lenders"), The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent for Lenders ("Canadian Administrative Agent"), Chase
Manhattan Securities Limited, as Australian Administrative Agent for Lenders
("Australian Administrative Agent"), Chase Securities Inc., as Arranger for
Lenders ("Arranger"), The Chase Manhattan Bank, as Administrative Agent for
Lenders ("Administrative Agent"), and Canadian Imperial Bank of Commerce, as
Documentation Agent for Lenders ("Documentation Agent");
WHEREAS, Assignor is an Australian Lender under the Credit
Agreement and Assignee will, upon giving effect to this Agreement, likewise be
an Australian Lender;
WHEREAS, Assignor has a Commitment under the Credit Agreement
pursuant to which Assignor is required (i) to make Loans to Australian Borrower
pursuant to subsection 2.1A(ii) of the Credit Agreement; and (ii) to purchase
participations in Australian Letters of Credit pursuant to subsection 2.7D of
the Credit Agreement (any such participations in any such Letters of Credit
outstanding as of the date hereof being the "Assignor Participations");
1
WHEREAS, Assignor has issued certain outstanding Australian
Letters of Credit (the "Assignor Letters of Credit") pursuant to subsection 3.3
of the Credit Agreement; [INSERT IF THE CHASE MANHATTAN BANK IS ASSIGNOR AND
AUSTRALIAN LETTERS OF CREDIT ARE OUTSTANDING TO AUSTRALIAN BORROWER];
WHEREAS, Assignor desires to assign to Assignee its rights and
obligations as an Australian Lender under the Credit Agreement and the other
Loan Documents with respect to all or a portion of Assignor's Australian
Commitment and any Australian Loans or Assignor Participations outstanding
thereunder [and to sell to Assignee a participation in the Assignor Letters of
Credit (the "Assignee Participation") equal to the participation required to be
purchased therein pursuant to subsection 2.7D of the Credit Agreement], and
Assignee has agreed to assume the obligations of Assignor under the Loan
Documents to the extent of the rights and obligations so assigned [and to
purchase the Assignee Participation]; and
[WHEREAS, Assignor is both the Australian Lender and the
[U.S./Canadian] Lender for its Lending Unit, and Assignor is, concurrently
herewith entering into an Assignment and Acceptance with [Name of Assignee or
Assignee's U.S./Canadian affiliate] (the "[U.S./Canadian] Assignee") whereby
Assignor is assigning to the [U.S./Canadian] Assignee that portion of its rights
and obligations with respect to its [U.S./Canadian] Commitment which corresponds
to the Percentage, as defined below;]
[WHEREAS, Assignor's Lending Unit consists of the Assignor and
[Name of U.S./Canadian Lender of Assignor's Lending Unit] ("Assignor's Lending
Unit Affiliate"), and Assignor's Lending Unit Affiliate is concurrently herewith
entering into an Assignment and Acceptance with [Name of Assignee or Assignee's
U.S./Canadian affiliate] (the "[U.S./Canadian] Assignee") whereby Assignor's
Lending Unit Affiliate is assigning to the [U.S./Canadian] Assignee that portion
of its rights and obligations with respect to its [U.S./Canadian] Commitment
which corresponds to the Percentage, as defined below;]
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
SECTION 1. Assignment and Assumption.
(a) Assignor hereby assigns to Assignee, effective upon the
receipt of the consideration set forth in Section 1(c) and Administrative
Agent's receipt of any processing and recordation fee required under subsection
10.1B of the Credit Agreement, without recourse, representation or warranty
(except as expressly set forth herein), an undivided _____% interest (the
"Percentage") in all of Assignor's rights and obligations as a Lender arising
under the Credit Agreement and the other Loan Documents relating to Assignor's
Australian Commitment and any Australian Loans and Assignor Participations
outstanding
2
thereunder [and concurrently therewith sells to Assignee, without recourse,
representation or warranty (except as expressly set forth herein), the Assignee
Participation].
(b) Assignee hereby assumes from Assignor, and Assignor is
hereby expressly and absolutely released from, the Percentage of all of
Assignor's obligations arising under the Loan Documents relating to Assignor's
Australian Commitment and any Australian Loans and Assignor Participations
outstanding thereunder, including without limitation all such obligations with
respect to any Australian Loans to be made and any participations in Australian
Letters of Credit to be purchased, pursuant to the Credit Agreement [, and
Assignee hereby purchases from Assignor the Assignee Participation].
(c) Notwithstanding any provisions of this Agreement to the
contrary, each of the Assignor and Assignee hereby acknowledges and confirms its
understanding and agreement that the Australian Commitments of the Australian
Lenders under the Credit Agreement may from time to time be increased or
decreased by the Borrowers in accordance with subsection 2.1A of the Credit
Agreement through changes in the Australian Allocation, provided that the
Australian Allocation may not at any time exceed the aggregate amount of the
Commitments of all Lending Units then in effect. Each of the Assignor and
Assignee acknowledges that the Percentage interest in the Australian Commitment
being assigned and assumed hereunder equals the Assignee's Pro Rata Share, as
set forth on Annex II attached hereto, of the Australian Allocation of the
Commitments as in effect on and after the date upon which this Agreement becomes
effective.
(d) Assignor hereby represents and warrants that as of the
effective date of this Agreement the respective amounts of unpaid principal,
accrued but unpaid interest and accrued but unpaid fees with respect to the
Percentage of Assignor's rights under the Credit Agreement relating to
Assignor's Australian Commitment and any Australian Loans and Assignor
Participations outstanding thereunder [and with respect to the Assignee
Participation] are as set forth on Annex I attached hereto. In consideration of
Assignor's assignment, Assignee hereby agrees to pay to Assignor, on the
effective date of this Agreement, the amount of $_________________ in
immediately available funds by wire transfer to Assignor's office at
_________________.
(e) Assignor and Assignee hereby agree that Annex II attached
hereto sets forth the amount of the Australian Commitment, any Australian Loans,
and participations by Assignee in any Australian Letters of Credit outstanding
under the Commitment and the Pro Rata Share of Assignee after giving effect to
the assignment and assumption [and the sale and purchase] described above.
(f) Assignor and Assignee hereby agree that, upon giving effect
to the assignment and assumption [and the sale and purchase] described above,
Assignee shall be a party to the Credit Agreement as an Australian Lender
thereunder, and shall have all of
3
the rights and obligations under the Loan Documents of, and shall be deemed to
have made all of the covenants and agreements contained in the Loan Documents
made by, an Australian Lender having the Australian Commitment, the outstanding
Australian Loans, the aggregate participation in outstanding Australian Letters
of Credit and the Pro Rata Share of Assignee as reflected on Annex II attached
hereto. Assignee hereby acknowledges and agrees that the agreement set forth in
this subsection 1(f) is expressly made for the benefit of Company, Borrowers,
Australian Administrative Agent, Administrative Agent, Assignor and the other
Lenders and their respective successors and permitted assigns.
(g) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect [(A)] the
assignment by Assignor and the assumption by Assignee of the Percentage of
Assignor's rights and obligations with respect to Assignor's Australian
Commitment and any Australian Loans and Assignor Participations outstanding
thereunder and all rights and obligations under the Loan Documents with respect
thereto [and (B) the sale by Assignor and the purchase by Assignee of the
Assignee Participation], (ii) any other assignments by Assignor of a portion of
its rights and obligations with respect to Assignor's Australian Commitment and
any Australian Loans or Assignor Participations outstanding thereunder [, and
any other sales by Assignor of participations in the Assignor Letters of
Credit,] shall have no effect on Australian Commitment, the outstanding
Australian Loans, the aggregate participation in outstanding Australian Letters
of Credit or Pro Rata Share of Assignee set forth on Annex II attached hereto,
and (iii) from and after the effective date of this Agreement, Administrative
Agent shall make all payments under the Credit Agreement in respect of the
Percentage interest assigned hereby [and the Assignee Participation] (including
without limitation all payments of principal and accrued but unpaid interest and
commitment and letter of credit fees with respect thereto) to Assignee, whether
such amounts (in the case of such interest and fees) have accrued prior to the
effective date of this Agreement or subsequent thereto.
SECTION 2. Certain Representations, Warranties and Agreements.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Percentage interest being assigned by it hereunder [and
of the Assignee Participation] and that such interest [is] [and the Assignee
Participation are] free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statement or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
by or on behalf of Company or any Borrower to Assignor or Assignee in connection
with the Loan Documents and the transactions contemplated thereby or for the
4
financial condition or business affairs of the Company or any Borrower or any
other Person liable for the payment of any Obligations, nor shall Assignor be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Loan Documents or as to the use of the proceeds of the Loans or the use of
the Letters of Credit or as to the existence or possible existence of any Event
of Default or Potential Event of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired its Percentage interest for its own account and
not with any present intention of selling all or any portion of such interest;
and that it has received, reviewed and approved copies of all Loan Documents.
(d) Assignee represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
each of the Borrowers and their respective Subsidiaries in connection with the
assignment evidenced by this Agreement and that it has made and shall continue
to make its own appraisal of the creditworthiness of the Company and the
Borrowers. Assignor shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Assignee or to provide Assignee with any credit or other
information with respect thereto, whether coming into its possession before the
making of the initial Loans or at any time or times thereafter, and Assignor
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to the
other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. Miscellaneous.
(a) Each party to this Agreement hereby agrees from time to
time, upon request of the other party hereto, to take such additional actions
and to execute and deliver such additional documents and instruments as such
other party may reasonably request to effect the transactions contemplated by,
and to carry out the intent of, this Agreement.
5
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(c) Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, telecopied, telexed or sent by United
States mail or Australian mail or courier service and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of
telecopy or telex, or four Business Days after depositing it in the United
States mail (or five Business Days after depositing it in the Australian mail),
registered or certified, with postage prepaid and properly addressed; provided
that notices to Administrative Agent shall not be effective until received. For
the purposes hereof, the address of each party hereto shall be as set forth
under such party's name on the signature page hereof or, as to either party,
such other address as shall be designated by such party in a written notice
delivered to the other party hereto. In addition, the address of Assignee set
forth below its name on the signature page hereof shall serve as the initial
notice address of Assignee for purposes of subsection 10.11 of the Credit
Agreement.
(d) This Agreement shall not effect an assignment of any rights
or obligations relating to the U.S. Commitment or Canadian Commitment of any
Lender. Assignor and Assignee acknowledge and confirm (i) that concurrently
herewith, U.S. Assignee is entering into an Assignment and Acceptance with the
U.S. Lender of Assignor's Lending Unit whereby U.S. Assignee shall be assigned
and assume all rights and obligations of Assignor's Lending Unit with respect to
that portion of such Lending Unit's U.S. Commitment which corresponds to the
Percentage hereunder, and (ii) that concurrently herewith, Canadian Assignee is
entering into an Assignment and Acceptance with the Canadian Lender of
Assignor's Lending Unit whereby Canadian Assignee shall be assigned and assume
all rights and obligations of Assignor's Lending Unit with respect to that
portion of such Lending Unit's Canadian Commitment which corresponds to the
Percentage hereunder, and (iii) that after giving effect to such assignment and
assumption and the assignment and assumption to be effected hereunder, Assignee,
U.S. Assignee, and Australian Assignee shall have the same Pro Rata Shares under
the Credit Agreement. Assignee agrees that U.S. Assignee shall for all purposes
be the U.S. Lender of Assignee's Lending Unit, Australian Assignee shall for all
purposes be the Australian Lender of Assignee's Lending Unit, and that the
Commitment of such Lending Unit shall equal the Assignee's Pro Rata Share (as
set forth on Annex 1 annexed hereto) of the aggregate Commitments of all Lending
Units as in effect at any time on and after the date this Amendment becomes
effective.
(e) In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
6
(f) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
(g) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
(h) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(i) This Agreement shall become effective upon the execution of
a counterpart hereof by each of Assignor and Assignee and the execution of a
counterpart hereof by Company and Borrowers (as evidence of their consent hereto
in accordance with subsection 10.1B(i) of the Credit Agreement) and
Administrative Agent (as evidence of its acceptance hereof in accordance with
subsection 10.1B(ii) of the Credit Agreement), and the receipt by Assignor,
Assignee, Australian Administrative Agent and Administrative Agent of originals
or telecopies of such counterparts and authorization of delivery thereof.
(j) Assignee hereby appoints The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Manhattan Securities Limited, as
Australian Administrative Agent, Chase Securities Inc., as Arranger, The Chase
Manhattan Bank as Administrative Agent, and Canadian Imperial Bank of Commerce,
as Documentation Agent, under the Credit Agreement and the other Loan Documents,
to exercise such powers as are specified in Section 9 of the Credit Agreement
and to be entitled to such protections and indemnities as are afforded
thereunder.
[(k) Assignee hereby agrees to deliver to Australian Borrower
such certificates, documents or other evidence, properly and accurately
completed and duly executed by Assignee, to establish the basis for any
applicable exemption from or a reduction of Taxes with respect to any payment to
Assignee or principal, interest, fees, commissions, or any other amount payable
under this Agreement, the Credit Agreement or otherwise in respect of the
Australian Loans.] [INSERT IF ASSIGNEE IS ORGANIZED UNDER THE LAWS OF ANY
JURISDICTION OTHER THAN AUSTRALIA OR ANY STATE THEREOF OR IS NOT RESIDENT IN
AUSTRALIA.]
(l) Each of the parties to this Agreement hereby waives its
rights to a jury trial of any claim or cause of action based upon or arising out
of this Agreement or any dealings between them relating to the transactions
contemplated by this Agreement.
7
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: ----------------------- By:----------------------
Title: -------------------- Title:-------------------
Notice Address: Notice Address:
--------------------------- ---------------------------
--------------------------- ---------------------------
Consented to in accordance with Accepted in accordance with
subsection 10.1B(i) of the Credit subsection 10.1B(ii) of the
Agreement Credit Agreement
HOMESTAKE MINING COMPANY THE CHASE MANHATTAN BANK,
as Administrative Agent
By: ----------------------- By:----------------------
Title: -------------------- Title:-------------------
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By:-----------------------
Title:--------------------
HOMESTAKE CANADA INC.
By:-----------------------
Title:--------------------
1
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:-----------------------
Title:--------------------
Receipt Acknowledged:
CHASE MANHATTAN SECURITIES LIMITED, as
Australian Administrative Agent
By:-----------------------
Title:--------------------
2
ANNEX I
AMOUNTS OUTSTANDING
Outstanding Principal Amount:
Loans:
Dollar Loans: $_________
Australian Dollar Loans: $_________
Gold Loans: _____Ounces
(interest to be paid in [Gold][Dollars
based on [a Price of Gold equal to
$____ per Ounce/Average daily value, in
Dollar Equivalents]]).
Total: $_________
Accrued But Unpaid Interest: $_________
Accrued But Unpaid Fees: $_________
Total Principal, Interest and Fees: $_________
ANNEX II
ASSIGNEE'S
AUSTRALIAN COMMITMENT,
OUTSTANDING AUSTRALIAN LOANS,
AGGREGATE PARTICIPATION IN
OUTSTANDING AUSTRALIAN LETTERS OF CREDIT AND
PRO RATA SHARE AFTER ASSIGNMENT
Australian Commitment:
Current Australian Allocation $_________
Aggregate Commitments $_________
Pro Rata Share _____%
Current Australian Commitment $_________
Maximum Australian Commitment $_________
Outstanding Loans:
Dollar Loans $_________
Australian Dollar Loans $_________
Gold Loans ______Ounces
Aggregate participation in
outstanding Australian Letters of Credit: $_________
outstanding U.S. Letters of Credit $_________
Pro Rata Share ______%
EXHIBIT XI
FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
Pursuant to that certain Credit Agreement dated as of September
20, 1996, as amended to the date hereof (said Credit Agreement, as so amended,
being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined), by and among Homestake
Mining Company, a Delaware corporation ("Company"), Homestake Mining Company of
California, a California corporation ("U.S. Borrower"), Homestake Canada Inc.,
an Ontario corporation ("Canadian Borrower"), Homestake Gold of Australia
Limited, a South Australia corporation ("Australian Borrower"), the financial
institutions listed therein as Lenders ("Lenders"), The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders ("Canadian Administrative
Agent"), Chase Manhattan Securities Limited, as Australian Administrative Agent
for Lenders ("Australian Administrative Agent"), Chase Securities Inc., as
Arranger for Lenders ("Arranger"), The Chase Manhattan Bank, as Administrative
Agent for Lenders ("Administrative Agent"), and Canadian Imperial Bank of
Commerce, as Documentation Agent for Lenders ("Documentation Agent"), this
represents [U.S. Borrower's/Canadian Borrower's/Australian Borrower's] request
that [The Chase Manhattan Bank/The Chase Manhattan Bank of Canada] issue a
Standby Letter of Credit on ___________, ____ in the face amount of
_________________ [Dollars/Canadian Dollars/Australian Dollars] with an
expiration date of ____________, ____. The beneficiary of such proposed Letter
of Credit shall be [Name of Beneficiary] and such beneficiary's address is
_________________________ ________________________________. Attached hereto is
the verbatim text of such proposed Letter of Credit and a precise description of
the proposed text of any certificate to be presented by such beneficiary which,
if presented by such beneficiary prior to the expiration date of the Letter of
Credit, would require [The Chase Manhattan Bank/The Chase Manhattan Bank of
Canada] to make payment under the Letter of Credit.
The undersigned officer, to the best of his or her knowledge,
and [U.S. Borrower/Canadian Borrower/Australian Borrower] certify that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete
in all material respects on and as of the date hereof to the same
extent as though made on and as of the date hereof, except to the
extent that changes in the facts and conditions on which such
representations and warranties were based are required or permitted
under the Credit Agreement;
XI-1
(ii) No event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby that would
constitute an Event of Default or a Potential Event of Default;
(iii) The Company and each Borrower have performed in all
material respects all agreements and satisfied all conditions which the
Credit Agreement and other Loan Documents provide shall be performed or
satisfied by it on or before the date hereof;
(iv) There is no pending or, to the knowledge of Company or any
Borrower, threatened, action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and
there has occurred no development in any such action, suit, proceeding,
governmental investigation or arbitration that, in either event, would
reasonably be expected to have a Material Adverse Effect, unless
disclosed to and consented to by Requisite Lenders; and no injunction
or other restraining order has been issued and no hearing to cause an
injunction or other restraining order to be issued is pending or
noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions contemplated
by the Credit Agreement or the making of Loans, the issuance of Letters
of Credit or the creation and purchase of Bankers' Acceptances
thereunder;
(v) No Company Change of Control has occurred; and
(vi) After giving effect to the issuance of the proposed Letter
of Credit, the Borrowers are in compliance with each of the clauses (a) through
(f) set forth in subsection 2.7A(i).
DATED: __________ [HOMESTAKE MINING COMPANY OF
CALIFORNIA/HOMESTAKE CANADA
INC./HOMESTAKE GOLD OF AUSTRALIA
LIMITED]
By: __________________________
Title: ________________________
XI-2
EXHIBIT XII
FORM OF SUBORDINATION PROVISIONS
All obligations of [Name of Borrower] under this Promissory Note
("Note") are hereby subordinated in right of payment to all "Obligations," as
defined in that certain Credit Agreement dated as of September __, 1996 among
Homestake Mining Company, a Delaware corporation, as Guarantor, Homestake Mining
Company of California, a California corporation, as U.S. Borrower, and Homestake
Canada Inc., an Ontario corporation, as Canadian Borrower, Homestake Gold of
Australia, an Australian corporation, as Australian Borrower, the Lenders named
therein, as lenders, Canadian Imperial Bank of Commerce, as Documentation Agent,
The Chase Manhattan Bank of Canada, as Canadian Administration Agent, Chase
Securities Australia Limited, as Australian Administrative Agent, Chase
Securities Inc., as Arranger and The Chase Manhattan Bank, as Administrative
Agent, as that Credit Agreement has been and may be amended from time to time,
and any successors, replacements or renewals thereof (the "Credit Agreement") on
the terms of this paragraph.
Upon the occurrence and during the continuation of an "Event of
Default" (as defined in the Credit Agreement), no distribution of assets in
respect of any such Indebtedness (including any payment of principal, interest
or fees or any repurchase, redemption or setoff of such Note against other
indebtedness owing to [Name of Borrower] or payment received as a result of
other indebtedness being subordinated to such Indebtedness) may be made until
indefeasible payment in full in cash of all Obligations. If, notwithstanding the
preceding sentence, any such distribution of assets shall be collected or
received by [Name of Lender] after the occurrence and during the continuation of
an Event of Default, such distribution of assets shall be paid over to
"Administrative Agent" for the benefit of "Lenders" (each as defined in the
Credit Agreement) to he held as collateral and then or thereafter credited and
applied against the Obligations but without impairing or limiting in any manner
the liability of [Name of Borrower] under any provision of the Credit Agreement
or of [Name of Lender] under this paragraph.
[Name of Creditor] shall duly and promptly take such action as the
Administrative Agent may reasonably request or permit the Administrative Agent,
upon the occurrence of an Event of Default, (i) to collect on the Note for the
account of the Lenders and to file appropriate claims or proofs of claim in
respect of the Note, (ii) to vote the claims represented by the Note in any
insolvency proceeding involving [Name of Borrower], (iii) to execute and deliver
to the Administrative Agent such powers of attorney, assignments, or other
instruments as it may reasonably request in order to enable it to enforce any
and all claims with respect to, and any security interests and other liens
XII-1
securing payment of, the Note, and (iv) to collect and receive any and all
payments or distributions which may be payable or deliverable upon or with
respect to the Note.
Effective this _____ day of __________, 19__.
[NAME OF BORROWER]
By: ______________________
Title:
[NAME OF CREDITOR]
By: ______________________
Title:
XII-2
EXHIBIT XIII
FORM OF NOTICE OF ALLOCATION
(To be delivered 14 days in advance
and not to be effective prior to November 1, 1996)
Pursuant to that certain Credit Agreement, dated as of
September _____, 1996, as amended to the date hereof (said Credit Agreement, as
so amended, being the "Credit Agreement," the terms defined therein and not
otherwise defined herein being used herein as therein defined), by and among
Homestake Mining Company, a Delaware corporation, as Guarantor, Homestake Mining
Company of California, a California corporation ("U.S. Borrower"), Homestake
Canada Inc., an Ontario corporation ("Canadian Borrower"), Homestake Gold of
Australia Limited, an Australia corporation ("Australian Borrower"; together
with U.S. Borrower and Canadian Borrower, "Borrowers"), the financial
institutions listed therein, as Lenders, The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent, Chase Securities Australia Limited, as Australian
Administrative Agent, Chase Securities Inc., as Arranger, The Chase Manhattan
Bank, as Administrative Agent and Canadian Imperial Bank of Commerce, as
Documentation Agent, this represents Borrowers' request that the aggregate
amount of the Commitments, which is currently $_________________, effective as
of _______________ 1, _____ be allocated among the Canadian Allocation, the
Australian Allocation and the U.S. Allocation as follows:
Canadian Allocation $_________________
Australian Allocation $_________________
U.S. Allocation $_________________
such allocations to remain in effect until such time as Borrowers deliver a
Notice of Allocation in accordance with the provisions of subsection 2.1A of the
Credit Agreement for the purpose of changing such allocations.
The undersigned officers and Borrowers hereby certify that,
after giving effect to the allocation requested hereby, (1) the sum of the
Canadian Allocation plus the Australian Allocation plus the U.S. Allocation
shall equal the aggregate amount of the Commitments then in effect, (2) the
Canadian Allocation shall not be less than the outstanding Canadian Commitment
Usage (which currently equals, in Dollar Equivalents as of the date hereof,
$___________), (3) the Australian Allocation shall not be less than the
outstanding Australian Commitment Usage (which currently equals, in Dollar
Equivalents as of the date hereof, $_____________) and (4) the U.S. Allocation
shall not be less than the outstanding U.S. Commitment Usage (which currently
equals, in Dollar Equivalents as of the date hereof, $_____________).
XIII-1
DATED: ____________________
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By:_________________________
Name:_______________________
Title:______________________
HOMESTAKE CANADA INC.
By:_________________________
Name:_______________________
Title:______________________
HOMESTAKE GOLD OF AUSTRALIA
LIMITED
By:_________________________
Name:_______________________
Title:______________________
XIII-2
