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EXHIBIT 4(h)
U.S. $75,000,000
CREDIT AGREEMENT
Dated as of November 6, 1995
Among
BATTLE MOUNTAIN GOLD COMPANY
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Agent
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TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE II
SECTION 2.01. The Revolving Credit Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.02. Making the Revolving Credit Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.03. The Competitive Bid Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.05. Termination or Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.06. Repayment of Revolving Credit Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.07. Interest on Revolving Credit Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 2.08. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 2.09. Optional Conversion of Revolving Credit Advances . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.10. Prepayments of Revolving Credit Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 2.11. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.12. Illegality; Gold Market Interruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.13. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 2.14. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 2.15. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 2.16. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03 . . . . . . . . . . . . . . . 40
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing . . . . . . . . . . . . . . . . . . . 43
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing . . . . . . . . . . . . . . . . . . . 43
SECTION 3.04. Determinations Under Section 3.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrower . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE V
SECTION 5.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.03. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE VI
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE VII
SECTION 7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 7.02. Agent's Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 7.03. Citibank and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 7.04. Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
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SECTION 7.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 7.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE VIII
SECTION 8.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8.04. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 8.06. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 8.07. Assignments, Designations and Participations . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 8.08. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 8.09. Releases of Guarantee Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 8.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 8.11. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 8.12. Jurisdiction, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 8.13. Interest Rate Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 8.14. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
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CREDIT AGREEMENT
Dated as of November 6, 1995
BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, and CITIBANK,
N.A. ("Citibank"), as agent (the "Agent") for the Lenders (as hereinafter
defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"A Advance" means a Eurodollar Rate Advance, a CD Rate Advance
or, if made available by each Lender, a Gold Advance (each of which
shall be a "Type" of A Advance).
"Additional Designated Guarantors" means, if at any date of
determination, Wholly-Owned Subsidiaries of the Borrower (other than
Project Subsidiaries and CFC Subsidiaries) that are not otherwise
Guarantors have, on a Consolidated basis, total assets constituting
more than 5% of the Consolidated total assets as at the end of the
most recently completed fiscal quarter or, for the twelve month period
ending as of the end of such quarter, more than 5% of the Consolidated
total revenues of the Borrower and its Subsidiaries, one or more of
such Wholly-Owned Subsidiaries designated by the Borrower as shall be
sufficient when included in the definition of Guarantor pursuant to
clause (c) thereof, to cause the Wholly-Owned Subsidiaries of the
Borrower (other than Project Subsidiaries and CFC Subsidiaries) that
are not Guarantors to have, on a Consolidated basis, neither total
assets nor total revenues exceeding the foregoing amounts.
"Adjusted CD Rate" means, for any Interest Period for each CD
Rate Advance comprising part of the same Revolving Credit Borrowing,
an interest rate per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i)
the consensus bid rate determined by Citibank (rounded upward
to the nearest whole multiple of 1/100 of 1% per annum if such
consensus bid rate is not such a multiple) for the bid rates
per annum, at 9:00 A.M. (New York City time) (or as soon
thereafter as practicable) on the first day of such Interest
Period, of New York certificate of deposit dealers of
recognized standing selected by Citibank for the purchase at
face value of certificates of deposit of Citibank in New York
City in an amount
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substantially equal to Citibank's Advance comprising part of
such Revolving Credit Borrowing and with a maturity equal to
such Interest Period, by (ii) a percentage equal to 100% minus
the Adjusted CD Rate Reserve Percentage for such Interest
Period, plus
(b) the Assessment Rate for such Interest Period.
"Adjusted CD Rate Reserve Percentage" for any Interest Period
for all CD Rate Advances comprising part of the same Revolving Credit
Borrowing means the reserve percentage applicable on the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting of or
including (among other liabilities) Dollar nonpersonal time deposits
in the United States and with a maturity equal to such Interest
Period.
"Adjusted Current Assets" of any Person means (a) all assets
of such Person that would, in accordance with GAAP, be classified as
current assets of a company conducting a business the same as or
similar to that of such Person, after deducting adequate reserves in
each case in which a reserve is proper in accordance with GAAP plus
(b) in the case of the Borrower, any unused amount of the Commitments,
under this Agreement that, if borrowed, would constitute a liability
that would not be included in Adjusted Current Liabilities, less (c)
in the case of a Subsidiary of the Borrower, all affected amounts
included in clause (a) of this definition where the ability of such
Subsidiary to dividend or advance 100% of net working capital is
legally or contractually restricted.
"Adjusted Current Liabilities" of any Person means (a) all
Debt of such Person, except Funded Debt, that by its terms is payable
on demand or matures within one year after the date of determination
(excluding any Debt renewable or extendible, at the option of such
Person, to a date more than one year from such date or arising under a
revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year from
such date), (b) all amounts of Funded Debt of such Person required to
be paid or prepaid within one year after such date, (c) all other
items (including, without limitation, taxes accrued as estimated) that
in accordance with GAAP would be classified as current liabilities of
such Person, less (d) in the case of a Subsidiary of the Borrower,
those current liabilities the repayment of which is secured by cash or
Marketable Securities of such Subsidiary under terms existing as of
the date of this Agreement or is secured on terms acceptable to the
Required Lenders by current assets to the extent excluded from the
definition of Adjusted Current Assets by clause (c) of such
definition.
"Advance" means a Revolving Credit Advance or a Competitive
Bid Advance.
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"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent" has the meaning specified in the recital of parties to
this Agreement.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank, N.A. with its office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Account No. 00000000, ABA #000000000, Attention:
Xxxxxxx Xxxxxx.
"Aggregate Current Amount" means, with respect to Dollar
Advances, the aggregate principal amount of such Dollar Advances and,
with respect to Gold Advances, the aggregate Dollar Equivalent of such
Gold Advances.
"Aggregate Original Amount" means, with respect to Dollar
Advances, the aggregate principal amount of such Dollar Advances and,
with respect to Gold Advances, the aggregate Original Dollar
Equivalent of such Gold Advances.
"Annual Contained Ounces of Production" shall mean, at any
date of determination, the greater of the contained ounces of gold
production (i) for the most recent four fiscal quarters and (ii) for
the most recent twelve fiscal quarters, expressed as an annual
average.
"Applicable Lending Office" means, with respect to each
Lender, (i) such Lender's Domestic Lending Office in the case of a
Base Rate Advance or CD Rate Advance, (ii) such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Advance and (iii) such
Lender's Gold Lending Office in a case of a Gold Advance and, in the
case of a Competitive Bid Advance, the office of such Lender notified
by such Lender to the Agent and the Borrower as its Applicable Lending
Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date, with respect to any
Revolving Credit Advance a percentage per annum determined by
reference to the Pricing Performance Level Status in effect on such
date as set forth below:
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==========================================================================================================
Applicable Margin for
Pricing Performance Applicable Margin for Eurodollar Rate Advances Applicable Margin for
Level Status Base Rate Advances and Gold Advances CD Rate Advances
==========================================================================================================
Level I
0% 0.55% 0.675%
----------------------------------------------------------------------------------------------------------
Level II
0% 0.75% 0.875%
----------------------------------------------------------------------------------------------------------
Level III
1.0% 2.125% 2.25%
==========================================================================================================
; provided, however, that no change in the Applicable Margin based on
a change in the Leverage Ratio or the Operating Cash Flow Ratio or in
the Borrower's senior unsecured long-term debt ratings shall be
effective until three Business Days after the date on which the Agent
receives financial statements pursuant to Section 5.01(m)(i) or
5.01(m)(ii) and a certificate of the chief financial officer of the
Borrower demonstrating such ratios or three Business Days after the
date on which the Agent receives notification of a change in the
Borrower's senior unsecured long-term debt ratings; provided further,
however, that, if as of any date of determination, (i) the aggregate
principal amount of Advances outstanding is greater than $25,000,000
but less than or equal to $50,000,000, the Applicable Margin shall
increase by 0.25% per annum, and (ii) the aggregate principal amount
of Advances outstanding is greater than $50,000,000, the Applicable
Margin shall increase by 0.50% per annum.
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Pricing Performance Level
Status in effect on such date as set forth below:
======================================
Pricing Performance Applicable
Level Status Percentage
======================================
Level I
0.10%
--------------------------------------
Level II
0.125%
--------------------------------------
Level III
0.25%
======================================
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; provided, however, that no change in the Applicable Percentage based
on a change in the Leverage Ratio or the Operating Cash Flow Ratio or
in the Borrower's senior unsecured long-term debt ratings shall be
effective until three Business Days after the date on which the Agent
receives financial statements pursuant to Section 5.01(m)(i) or
5.01(m)(ii) and a certificate of the chief financial officer of the
Borrower demonstrating such ratios or three Business Days after the
date on which the Agent receives notification of a change in the
Borrower's senior unsecured long-term debt ratings.
"Arranger" means Citicorp Securities, Inc.
"Assessment Rate" for any Interest Period for all CD Rate
Advances comprising part of the same Revolving Credit Borrowing means
the annual assessment rate estimated by Citibank on the first day of
such Interest Period for determining the then current annual
assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits of
Citibank in the United States.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Attributable Share" means with respect to any Person the
percentage ownership interest in such Person held directly or
indirectly by the Borrower.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1%
or, if there is no nearest 1/4 of 1%, to the next higher 1/4
of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained
by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal
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to 100% minus the average of the daily percentages specified
during such three-week period by the Board of Governors of the
Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities)
three-month Dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period
of the annual assessment rates estimated by Citibank for
determining the then current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring Dollar deposits of Citibank in the
United States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or
LIBO Rate Advances, on which dealings are carried on in the London
interbank market and, if the applicable Business Day relates to any
Gold Advances, a Gold Business Day.
"Capital Expenditures" means, for any Person for any period,
the sum (without duplication) of all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such
period for equipment, fixed assets, real property or improvements, or
for replacements or substitutions therefor or additions thereto, that
have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance
sheet of such Person.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases and the
amount of the obligation associated therewith shall be the capitalized
amount thereof determined in accordance with GAAP.
"CD Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.7(a)(iii).
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"CFC Subsidiary" means a Subsidiary of the Borrower or any
Guarantor that is or becomes a "controlled foreign corporation" with
respect to the Borrower within the meaning of Section 957 of the
Internal Revenue Code as in effect on the date hereof.
"Comex" means the Commodities Exchange, Inc. of New York, and
any successors thereto.
"Comex Gold Price" means, on any day, the settlement price per
xxxx ounce of Gold quoted on Comex on such day for a contract on Comex
to sell Gold for delivery in the then current month.
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to
a Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to
such Lender resulting from a Competitive Bid Advance made by such
Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that the Borrower
or any of its Subsidiaries furnishes to the Agent or any Lender in a
writing designated as confidential or obtained on a confidential basis
by the Agent or any Lender pursuant to Section 5.01(e), but does not
include any such information that is or becomes generally available to
the public other than as a result of action by the Agent or any Lender
(other than as provided in Section 8.08) or that is or becomes
available to the Agent or such Lender from a source other than the
Borrower or its Subsidiaries.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of another Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred
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purchase price of property or services (other than trade accounts
payable within 90 days incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations
of such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as Capitalized Leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g)
all obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any capital stock of or other
ownership or profit interest in such Person or any other Person or any
warrants, rights or options to acquire such capital stock prior to
December 31, 2005, valued, in the case of redeemable preferred stock,
at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends but excluding any such obligation to
the extent the consideration to be paid consists of capital stock of
such Person or warrants, rights or options to acquire such capital
stock, (h) all obligations of such Person in respect of Prepaid
Forward Sales Agreements, (i) all obligations of such Person for
production payments from property operated by or on behalf of such
Person and other similar arrangements with respect to natural
resources, (j) all Debt of others referred to in clauses (a) through
(i) above or clause (k) below guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (1) to pay or purchase such Debt
or to advance or supply funds for the payment or purchase of such
Debt, (2) to purchase, sell or lease (as lessee or lessor) property,
or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Debt or to assure the holder of
such Debt against loss, (3) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such
services are rendered) or (4) otherwise to assure a creditor against
loss, and (k) all Debt referred to in clauses (a) through (j) above
secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien (other than
the Lien on the Borrower's assets set forth on Schedule 5.02(a)
hereto) on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" (or the then equivalent grade) by
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Moody's or "A-1" (or the then equivalent grade) by S&P that, in the
case of either clause (a) or (b), (i) is organized under the laws of
the United States or any State thereof, (ii) shall have become a party
hereto pursuant to Section 8.07(d), (e) and (f) and (iii) is not
otherwise a Lender.
"Designation Agreement " means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Agent, in substantially the form of
Exhibit D hereto.
"Dollar Advances" means Advances made by the Lenders to the
Borrower in the form of Dollars.
"Dollar Borrowing" means a Revolving Credit Borrowing in
Dollars.
"Dollar Equivalent" means, on any day, with respect to any
Gold Advance, the Dollar amount obtained by multiplying the quantity
of such Gold Advance in xxxx ounces by the London Gold Fix on such
day. If the London Gold Fix is not then available or if such day is
not a Gold Business Day, the London Gold Fix on the immediately
preceding Gold Business Day shall be used. If neither of such prices
is available, the Comex Gold Price on such day shall be used
analogously in place of the London Gold Fix. If none of such prices
is available, the price per xxxx ounce of Gold for purposes of this
definition shall be the price determined in good faith by the Agent in
its sole discretion based on the prevailing cash market or markets for
Gold.
"Dollars" and "$" means lawful money of the United States of
America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) a commercial bank
organized under the laws of the United States, or any State thereof,
and having total assets in excess of $1,000,000,000; (iii) a savings
and loan association or savings bank organized under the laws of the
United States, or any State thereof, and having total assets in excess
of $1,000,000,000; (iv) a commercial bank organized under the laws of
any other country that is a member of the Organization for Economic
Cooperation and Development ("OECD") or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or of the Cayman Islands, or a
political subdivision of any such country, and having total assets in
excess of $1,000,000,000, so long as such bank is acting through a
branch or agency located in the United States or in the country in
which it is organized or another country that is
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described in this clause (iv); (v) the central bank of any country
that is a member of the OECD; (vi) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of its business and having total assets in excess of
$1,000,000,000 and (vii) any other Person approved by the Agent and
the Borrower, such approval not to be unreasonably withheld or
delayed; provided, however, that neither the Borrower nor an Affiliate
of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any applicable federal, state, local
or foreign statute, law, ordinance, rule, regulation, code, order,
judgment or decree relating to pollution or protection of the
environment or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equity Proceeds" means (a) gross proceeds received by the
Borrower from (i) the sale or issuance of any equity security of the
Borrower whether by means of any public offering or private placement,
or (ii) capital contributions to the Borrower from time to time, (b)
the principal amount of convertible debt that, in accordance with the
terms thereof is converted to capital stock of the Borrower and (c)
assets received as consideration from the sale or issuance of any
equity securities.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to
any Plan unless the 30-day notice
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requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11), (12) or
(13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Plan within the following 30 days; (b) the application
for a minimum funding waiver with respect to a Plan; (c) the provision
by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of the
Borrower or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any
ERISA Affiliate from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (f) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum at which deposits in
Dollars are offered by the principal office of Citibank in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to Citibank's Eurodollar Rate
Advance comprising part of such Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.07(a)(ii).
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"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurodollar Rate Advances or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" means that certain U.S.
$150,000,000 Credit Agreement dated as of December 29, 1989 by and
among the Borrower, as borrower, the banks named therein and Citibank,
as agent, as amended.
"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 next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Fiscal Year" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year after such date,
excluding, however, all amounts of Funded Debt of such Person required
to be paid or prepaid within one year after the date of determination.
"GAAP" has the meaning specified in Section 1.03.
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"Gold" means gold in the form constituting good delivery to
Comex or the London Bullion Market, as applicable, in each case with
an assayed fineness of not less than .995.
"Gold Advance" means a Revolving Credit Advance made by the
Lenders to the Borrower in the form of Gold.
"Gold Borrowing" means a Revolving Credit Borrowing consisting
of Gold Advances.
"Gold Business Day" means a day of the year on which banks are
not required or authorized by law to close in New York City and on
which (a) dealings are carried on in the London interbank market, (b)
the London Bullion Market is open for business and (c) future Gold
bullion contracts are carried out on Comex.
"Gold Funding Rate" means, with respect to any Gold Advance
for any Interest Period applicable thereto, the average (rounded
upwards, if necessary, to the nearest 1/100 of 1%) of the rate per
annum quoted by each Reference Bank to the Agent on the date two
Business Days prior to the first day of such Interest Period as the
rate offered by such Reference Bank for an amount substantially equal
to such Reference Bank's Gold Advance comprising part of such
Borrowing and with a maturity equal to such Interest Period.
"Gold Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Gold Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to the Borrower
and the Agent.
"Gold Market Interruption" means the existence of any
circumstances at any time which make any Lender, in the sole
determination of such Lender, unable to conduct transactions in any
accessible international Gold market sufficient to meet such Lender's
obligations under Section 2.01, as a result of causes beyond such
Lender's control, including (without limitation) (i) changes in
national or international financial, political or economic conditions;
(ii) the inability of such Lender to acquire or borrow Gold in the
open market or on any organized exchange or to fund any such
acquisition; (iii) wars, strikes, or acts of God; (iv) acts of
government or any governmental activity; or (v) a change in law, rule
or regulation or in the interpretation or administration thereof which
has the effect of making it unlawful or impossible for such Lender to
engage in such transactions.
"Gold Note" means a promissory note of the Borrower payable to
the order of any Lender, substantially in the form of Exhibit A-3
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Gold Advances made by such Lender.
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14
"Guarantor" means, at any date of determination, (a) all
Wholly-Owned Subsidiaries of the Borrower, other than Project
Subsidiaries and CFC Subsidiaries, that are Material Subsidiaries, (b)
each Wholly-Owned Subsidiary of the Borrower which is not itself a
Project Subsidiary or a CFC Subsidiary, of which a Project Subsidiary
or a CFC Subsidiary is a Material Subsidiary, (c) any Additional
Designated Guarantors and (d) each Person that has become a Guarantor
but is no longer included within the scope of the foregoing clauses
(a), (b) and (c) of this definition, unless and until such Person is
released from the obligations of a Guarantor pursuant to Section 8.09.
"Guaranty" has the meaning specified in Section 3.01(g)(ii).
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, forward rate
transactions, commodity swap agreements, commodity option contracts
and other similar agreements.
"Information Memorandum" means the information memorandum
dated September 1995, as amended and supplemented by separate
communications dated September 12, 1995, September 19, 1995, October
18, 1995 and November 2, 1995, used by the Agent in connection with
the syndication of the Commitments.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each A Advance comprising part of
the same Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such A Advance or LIBO Rate Advance or the
date of the Conversion of any Base Rate Advance into any Type of A
Advance (other than Gold Advances) and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to A Advances, each subsequent period
commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be (a) in the case of a Eurodollar Rate
Advances, one, two, three or six months, (b) in the case of an
Adjusted CD Rate Advance, 30, 60 or 90 days and (c) in the case of a
Gold Advance, 30, 60 or 90 days, in each case as the Borrower may,
upon notice received by the Agent not later than 11:00 A.M. (New York
City time) on
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15
the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(i) the Borrower may not select any Interest
Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same date
for any A Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period in respect of any Eurodollar Rate Advance or LIBO Rate
Advance to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next
preceding Business Day; and
(iv) whenever the first day of any Interest Period
for any Eurodollar Rate Advance or LIBO Rate Advance occurs on
a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"Inti Raymi" means Empresa Minera Inti Raymi S.A., a Bolivian
Sociedad Anonima.
"Inti Raymi Project Loans" means the Debt of Inti Raymi listed
in the attached Schedule 5.02(j).
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or
other ownership or profit interest, warrants, rights, options,
obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (j) or (k) of
the definition of "Debt" in respect of such Person.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c) and,
except when used in reference to an
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16
A Advance, a Revolving Credit Advance, a Revolving Credit Borrowing, a
Revolving Credit Note, a Commitment or a related term, each Designated
Bidder.
"Leverage Ratio" means the Consolidated Leverage Ratio as set
forth in Section 5.03(b).
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum at which deposits in Dollars are
offered by the principal office of Citibank in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be Citibank's
ratable share of such Borrowing if such Borrowing were to be a
Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"Lien" means any mortgage, lien, pledge, charge, deed of
trust, security interest, encumbrance or any other type of
preferential arrangement to secure or provide for the payment of any
obligation of any Person, whether arising by contract, operation of
law or otherwise (including, without limitation, the interest of a
vendor or lessor under any conditional sale agreement, capital lease
or other title retention agreement).
"Loan Documents" means this Agreement, the Notes and the
Guaranty, in each case as amended or otherwise modified from time to
time.
"Loan Party" means the Borrower and each Guarantor.
"London Bullion Market" means, collectively, the market making
members of the London bullion market who quote prices for the buying
and selling of Gold throughout each Gold Business Day for spot and
forward delivery, and any successors thereto.
"London Gold Fix" means, on any day, the sale price per xxxx
ounce of Gold (quoted in Dollars) as determined by the London Bullion
Market at its afternoon fixing on such day.
"Margin Stock" has the meaning specified in Regulation U.
"Marketable Securities" means any of the following, to the
extent owned by the Borrower or any of its Subsidiaries free and clear
of all Liens and having a maturity of not greater than 360 days from
the date of acquisition thereof: (a) readily marketable direct
obligations of the Government of the United States or any agency or
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17
instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States, (b)
certificates of deposit of or time deposits with any commercial bank
that is a Lender or a member of the Federal Reserve System, issues (or
the parent of which issues) commercial paper rated as described in
clause (c), is organized under the laws of the United States or any
State thereof and has combined capital and surplus of at least $1
billion or (c) commercial paper in an aggregate amount of no more than
$10,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "Prime-2" (or the then equivalent grade) by Moody's
and "A-2" (or the then equivalent grade) by S&P.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
properties or reasonably foreseeable prospects of the Borrower and its
Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
properties or reasonably foreseeable prospects of the Borrower and its
Subsidiaries, taken as a whole, (b) the rights and remedies of the
Agent or any Lender under this Agreement or any other Loan Document or
(c) the ability of the Borrower to perform its obligations under this
Agreement or any Note.
"Material Contract" means each contract to which the Borrower
or any of the Borrower's Subsidiaries is a party which constitutes a
material contract of the Borrower within the meaning of Item
601(b)(10) of Regulation S-K of the Securities and Exchange Commission
as in effect on the date hereof.
"Material CFC Subsidiary" means a CFC Subsidiary that
satisfies the criteria set forth in the definition of "Material
Subsidiary".
"Material Project Subsidiary" means a Project Subsidiary that
satisfies the criteria set forth in the definition of "Material
Subsidiary".
"Material Subsidiary" means, as of any date of determination,
(a) any Subsidiary the assets or revenues of which constitute 2% or
more of the Consolidated assets or revenues, as applicable, of the
Borrower and its Subsidiaries for either of the immediately preceding
two consecutive Fiscal Year ends or Fiscal Years, as applicable, or
the immediately preceding fiscal quarter end or fiscal quarter, as
applicable, or (b) any Subsidiary the Operating Income of which
constitutes 5% or more of Consolidated Operating Income of the
Borrower and its Subsidiaries for either of the immediately preceding
two consecutive Fiscal Years, or the immediately preceding fiscal
quarter or (c) any Subsidiary that holds, directly or indirectly,
proved or probable mineral reserves.
"Moody's" means Xxxxx'x Investors Service, Inc.
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"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock, any securities convertible into or
exchangeable for capital stock or any warrants, rights or options to
acquire capital stock by any Person, the aggregate amount of cash
received from time to time by or on behalf of such Person in
connection with such transaction after deducting therefrom only (a)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and
commissions, (b) the amount of taxes payable in connection with or as
a result of such transaction and (c) the amount of any Debt secured by
a Lien on such asset that, by the terms of such transaction, is
required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at
the time of receipt of such cash, actually paid to a Person that is
not an Affiliate and are properly attributable to such transaction or
to the asset that is the subject thereof.
"Net Equity Proceeds" means Equity Proceeds of any transaction
after deducting therefrom only reasonable brokerage commissions,
underwriting fees and discounts, legal fees and similar fees and
commissions to the extent, but only to the extent, that the amounts so
deducted are, at the time or receipt of such Equity Proceeds, properly
attributable to such transaction.
"Net Income" of any Person means for any period the amount of
such Person's net income for such period, exclusive of extraordinary
items, all determined in accordance with GAAP.
"NML" means Niugini Mining Limited, a corporation organized
under the laws of Papua New Guinea.
"Note" means a Revolving Credit Note, a Competitive Bid Note
or a Gold Note.
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
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"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Operating Cash Flow Ratio" means the Debt to Operating Cash
Flow Ratio set forth in Section 5.03(e).
"Operating Income" means, for any Person for any period, the
sum of (a) the Net Income of such Person for such period excluding (b)
the net amount of the following items (to the extent included in the
computation of such Net Income): (i) net interest expense (income),
(ii) income tax expense and (iii) any extraordinary items.
"Original Dollar Equivalent" means, with respect to any Gold
Advance, the amount in Dollars obtained by multiplying the Original
Gold Price with respect to such Gold Advance by the quantity of such
Gold Advance in xxxx ounces.
"Original Gold Price" means, for each xxxx ounce of Gold with
respect to each Gold Advance, the London Gold Fix on the date two Gold
Business Days prior to the date such Gold Advance is made or
continued, as the case may be.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely
affect the use of such property for its present purposes in each case
in a manner that materially interferes in the conduct of the business
of the Borrower and the Guarantors, taken as a whole, or of the
Borrower and its Subsidiaries, taken as a whole.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company
or other entity, or a government or any political subdivision or
agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Prepaid Forward Sales Agreements" means physical delivery
contracts for which a Person has received or has the right to receive
a cash payment in advance of physical delivery of the subject
commodity and which would be reflected in the
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financial statements or footnotes thereto of such Person in accordance
with GAAP and each Hedge Agreement for which the termination value
immediately after the inception of such Hedge Agreement is not zero
(excluding customary bid/ask differentials for market level
transactions).
"Pricing Performance Level I Status" exists at any date if (i)
the Borrower's outstanding senior unsecured long-term debt securities
are rated (x) BBB- or higher by S&P and (y) Baa3 or higher by Xxxxx'x
or (ii) if the Borrower's outstanding senior unsecured long-term debt
securities are not rated by both S&P and Xxxxx'x, (x) the Leverage
Ratio is less than 0.25 to 1.0 and (y) the Operating Cash Flow Ratio
is less than 2.0 to 1.0.
"Pricing Performance Level II Status" exists at any date if
neither Pricing Performance Level I Status nor Pricing Performance
Level III Status exists at such date.
"Pricing Performance Level III Status" exists at any date if
(i) the Borrower's outstanding senior unsecured long-term debt
securities are rated (x) B+ or lower by S&P or (y) B1 or lower by
Xxxxx'x or (ii) if the Borrower's outstanding senior unsecured
long-term debt securities are not rated by S&P or Xxxxx'x, (x) the
Leverage Ratio is greater than 0.375 to 1.0 or (y) the Operating Cash
Flow Ratio is greater than 3.0 to 1.0.
"Project Subsidiary" means a Subsidiary of the Borrower or any
Guarantor, including, without limitation, Inti Raymi, formed and
operated for the sole purpose of developing and operating a mineral
property or properties and related facilities, the financing for which
is neither obtained on a basis as to which there is recourse to the
Borrower or any Subsidiary of the Borrower nor guaranteed by the
Borrower or any Subsidiary of the Borrower (other than such Project
Subsidiary or Subsidiaries of such Project Subsidiary).
"Reference Banks" means Citibank and The Bank of Nova Scotia.
"Register" has the meaning specified in Section 8.07(g).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Document" means the Subordinated Debt Fiscal and
Paying Agency Agreement.
"Required Lenders" means at any time Lenders owed at least
66-2/3% of the then aggregate unpaid principal amount of the Revolving
Credit Advances owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having at least 66-2/3% of the Commitments.
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"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance, a Eurodollar Rate Advance, a CD Rate Advance or, if made
available by each Lender, a Gold Advance.
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each
of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances
(other than the Gold Advances) made by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained
and in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subordinated Debt" means (a) the 6% Convertible Subordinated
Debentures of the Borrower due 2005 in the aggregate principal amount
of $100,000,000 issued pursuant to the Subordinated Debt Fiscal and
Paying Agency Agreement (the "6% Convertible Subordinated
Debentures"), and (b) Debt for money borrowed for which the Borrower
is directly and primarily obligated which arises after the date of
this Agreement which is subordinate in right of payment to the payment
of the principal of and interest on the Notes and other obligations
arising hereunder either (i) at least to the extent and in the manner
the 6% Convertible Subordinated Debentures are subordinate to the
payment of the principal of and interest on the Notes and other
obligations arising hereunder or (ii) otherwise in a manner
satisfactory to the Required Lenders, provided, that Subordinated Debt
under this clause (b) shall not have a stated maturity prior to
December 31, 2005.
"Subordinated Debt Fiscal and Paying Agency Agreement" means
the Subordinated Debt Fiscal and Paying Agency Agreement dated January
4, 1990 between the Borrower and Citibank, N.A., as Fiscal and Paying
Agent.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital
stock having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the
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time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Tangible Net Worth" means the excess of total assets of the
Borrower and its Subsidiaries over total liabilities of the Borrower
and its Subsidiaries, total assets and total liabilities each to be
determined in accordance with GAAP, excluding from the determination
of total assets (a) goodwill, organizational expenses, research and
development expenses, trademarks, trade names, service marks,
copyrights, patents, patent applications, licenses and rights in any
thereof, and other similar intangibles, (b) all prepaid expenses or
deferred charges (other than prepaid expenses or deferred charges
incurred in the ordinary course of business) or unamortized debt
discount and expense, (c) all reserves carried and not deducted from
assets, (d) treasury stock and capital stock, obligations or other
securities of, or capital contributions to, or investments in, any
Subsidiary, (e) securities which are not readily marketable, (f) cash
held in a sinking or other analogous fund established for the purpose
of redemption, retirement or prepayment of capital stock or Debt,
provided, such capital stock or Debt is not considered a liability of
the Borrower or any of its Subsidiaries in accordance with GAAP, (g)
any write-up in the book value of any asset resulting from a
revaluation thereof subsequent to December 31, 1994, and (h) any items
not included in clauses (a) through (g) above which are treated as
intangibles in conformity with GAAP.
"Termination Date" means the earlier of October 31, 2000 and
the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate, Advances bearing interest at the Adjusted
CD Rate, Advances bearing interest at the Eurodollar Rate and Advances
bearing interest at the Gold Funding Rate.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of
which (or in which) 100% of (a) if such Subsidiary is a corporation,
the issued and outstanding capital stock having ordinary voting power
to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) if such Subsidiary is a
limited liability company, partnership or
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joint venture, the interest in the capital and profits of such limited
liability company, partnership or joint venture or (c) if such
Subsidiary is a trust or estate, the beneficial interest in such trust
or estate is at the time directly or indirectly owned by such Person,
by such Person and one or more of its other Wholly-Owned Subsidiaries
or by one or more of such Person's other Wholly-Owned Subsidiaries.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with United States
generally accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(f)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower in Dollars or, if each Lender agrees,
in its sole discretion to make Gold Advances, in Gold, at the option of the
Borrower, from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an Aggregate Original Amount not
to exceed at any time outstanding the amount set forth opposite such Lender's
name on the signature pages hereof or, if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the Register maintained
by the Agent pursuant to Section 8.07(g), as such amount may be reduced
pursuant to Section 2.05 (such Lender's "Commitment"), provided that the
aggregate amount of the Commitments of the Lenders shall be deemed used from
time to time to the extent of the aggregate amount of the Competitive Bid
Advances then outstanding and such deemed use of the aggregate amount of the
Commitments shall be allocated among the Lenders ratably according to their
respective Commitments (such deemed use of the Commitments being a "Competitive
Bid Reduction"). Each Revolving Credit Borrowing shall be in an Aggregate
Original Amount of $5,000,000 or, in the case of a Dollar Borrowing, an
integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate
amount equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by the Borrower exceeds the aggregate
amount of Competitive Bid Advances offered to be made by the Lenders and
accepted by the Borrower in respect of such Competitive Bid Borrowing, if such
Competitive Bid Borrowing is made on the same date as such Revolving Credit
Borrowing) and shall consist of Revolving Credit
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Advances of the same Type made on the same day by the Lenders ratably according
to their respective Commitments. Within the limits of each Lender's
Commitment, the Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.10 and reborrow under this Section 2.01; provided, however, that no
Revolving Credit Advances shall be made hereunder if after giving effect
thereto the Aggregate Current Amount of all Advances outstanding (including
Competitive Bid Advances) would exceed the aggregate amount of the Commitments.
SECTION 2.02. Making the Revolving Credit Advances. (a)
Each Revolving Credit Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of A Advances, or the first Business Day prior to the date
of the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, by the Borrower to the Agent, which
shall give to each Lender prompt notice thereof by telecopier or telex. Each
such notice of a Revolving Credit Borrowing (a "Notice of Revolving Credit
Borrowing") shall be by telephone, confirmed immediately in writing, or
telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying
therein the requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount of
such Revolving Credit Borrowing, if such Borrowing is a Dollar Borrowing, or
the quantity (stated in xxxx ounces) of Gold to be borrowed, if such Borrowing
is a Gold Borrowing, and (iv) in the case of a Revolving Credit Borrowing
consisting of A Advances, initial Interest Period for each such Revolving
Credit Advance. Each Lender shall, (x) before 11:00 A.M. (New York City time)
on the date of such Revolving Credit Borrowing that is a Dollar Borrowing, make
available for the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's ratable portion of such
Revolving Credit Borrowing or (y) before 3:00 P.M. (London time) on the date of
such Revolving Credit Borrowing that is a Gold Borrowing, make available to the
Agent such Lender's ratable portion of such Gold Borrowing, in xxxx ounces of
Gold, by crediting to the Agent such quantity of Gold in a pool account with a
depository in London of unallocated Gold specified by the Agent, for the
account of the Borrower. Upon fulfillment of the applicable conditions set
forth in Article III, (1) with respect to a Dollar Borrowing, after the Agent's
receipt of such funds, the Agent will make such funds available to the Borrower
at the Agent's address referred to in Section 8.02, and (2) with respect to a
Gold Borrowing, after the Agent's receipt of such amount of Gold, the Agent
will make such amount available to the Borrower by crediting to the Borrower
unallocated Gold in a depository pool account specified by the Borrower, which
account shall be located in London or such other location agreed to by the
Agent and the Borrower.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select A Advances for any Revolving
Credit Borrowing (x) if the aggregate amount of such Revolving Credit Borrowing
that is a Dollar Borrowing is less than $5,000,000 or (y) if the aggregate
amount of such Revolving Credit Borrowing that is a Gold Borrowing is less than
an Aggregate Original Amount of $5,000,000 and less than 15,000 xxxx
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ounces of Gold or (z) if the obligation of the Lenders to make A Advances shall
then be suspended pursuant to Section 2.08 or 2.12 and (ii) no Advances may be
outstanding as part of more than 8 separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurodollar Rate Advances, CD Rate Advances or Gold Advances,
the Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Revolving Credit Borrowing for such Revolving
Credit Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund the Revolving Credit Advance to be
made by such Lender as part of such Revolving Credit Borrowing when such
Revolving Credit Advance, as a result of such failure, is not made on such
date.
(d) Unless the Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender
will not make available to the Agent such Lender's ratable portion of such
Revolving Credit Borrowing, the Agent may assume that such Lender has made such
portion available to the Agent on the date of such Revolving Credit Borrowing
in accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Revolving Credit Advances comprising such Revolving Credit Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for purposes of this Agreement. Notwithstanding anything
contained herein to the contrary, this subsection (d) shall not apply to Gold
Borrowings unless each Lender, in its sole discretion, agrees to make a Gold
Advance.
(e) The failure of any Lender to make the Revolving
Credit Advance to be made by it as part of any Revolving Credit Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Revolving Credit Advance to be made by such other Lender on the date of any
Revolving Credit Borrowing.
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(f) Upon delivery of any Gold to the Borrower as set
forth in subsection (a) above, the Borrower shall bear all risk of damage
thereto or loss or destruction thereof from any cause whatsoever.
(g) THE LENDERS MAKE NO WARRANTIES OF MERCHANTABILITY
WITH RESPECT TO GOLD CONSTITUTING ANY PAYMENT OF GOLD ADVANCES OR OTHERWISE,
NOR OF FITNESS FOR ANY PARTICULAR PURPOSE, NOR ANY OTHER WARRANTIES, EXPRESS OR
IMPLIED, RELATING TO SUCH GOLD, EXCEPT THAT THE GOLD LOANED HEREUNDER SHALL BE
GOLD AS DEFINED HEREIN.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing
under this Section 2.03 by delivering to the Agent, by telecopier or
telex, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances,
maturity date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date may not be
earlier than the date occurring 30 days after the date of such
Competitive Bid Borrowing or later than the earlier of (I) 180 days
after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (y) interest payment date or dates relating
thereto, and (z) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than 10:00 A.M. (New York City
time) (A) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall specify in the Notice
of Competitive Bid Borrowing that the rates of interest to be offered
by the Lenders shall be fixed rates per annum (the Advances comprising
any such Competitive Bid Borrowing being referred to herein as "Fixed
Rate Advances") and (B) at least four Business Days prior to the date
of the proposed Competitive Bid Borrowing, if the Borrower shall
instead specify in the Notice of Competitive Bid Borrowing that the
rates of interest to be offered by the Lenders are to be based on the
LIBO Rate (the Advances comprising such Competitive Bid Borrowing
being referred to herein as "LIBO Rate Advances"). Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on the
Borrower. The Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received
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by it from the Borrower by sending such Lender a copy of the related
Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more Competitive Bid
Advances to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in
its sole discretion, by notifying the Agent (which shall give prompt
notice thereof to the Borrower), before 9:30 A.M. (New York City time)
on the date of such proposed Competitive Bid Borrowing, in the case of
a Competitive Bid Borrowing consisting of Fixed Rate Advances and
before 10:00 A.M. (New York City time) three Business Days before the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances, of the
minimum amount and maximum amount of each Competitive Bid Advance
which such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the proviso
to the first sentence of this Section 2.03(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such Competitive
Bid Advance; provided that if the Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any such offer, it shall
notify the Borrower of such offer at least 30 minutes before the time
and on the date on which notice of such election is to be given to the
Agent by the other Lenders. If any Lender shall elect not to make
such an offer, such Lender shall so notify the Agent, before 10:00
A.M. (New York City time) on the date on which notice of such election
is to be given to the Agent by the other Lenders, and such Lender
shall not be obligated to, and shall not, make any Competitive Bid
Advance as part of such Competitive Bid Borrowing; provided that the
failure by any Lender to give such notice shall not cause such Lender
to be obligated to make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M. (New
York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances and before 11:00 A.M. (New York City time) three
Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by
giving the Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Agent of the amount
of each Competitive Bid Advance (which amount shall be equal
to or greater than the minimum amount, and equal to or less
than the maximum amount, notified to the Borrower by the Agent
on behalf of such
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Lender for such Competitive Bid Advance pursuant to paragraph
(ii) above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers
made by Lenders pursuant to paragraph (ii) above by giving the
Agent notice to that effect. In the case of such acceptance,
the Borrower shall accept the offers made by any Lender or
Lenders to make Competitive Bid Advances in order of the
lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same
interest rate, the amount to be borrowed at such interest rate
will be allocated among such Lenders in proportion to the
amount that each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such
Competitive Bid Borrowing is canceled pursuant to paragraph (iii)(x)
above, the Agent shall give prompt notice thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y) above,
the Agent shall in turn promptly notify (A) each Lender that has made
an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether or not
any offer or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender that is to
make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, of the amount of each Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing, and (C) each
Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, upon receipt, that the Agent has received
forms of documents appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing shall, before 12:00
noon (New York City time) on the date of such Competitive Bid
Borrowing specified in the notice received from the Agent pursuant to
clause (A) of the preceding sentence or any later time when such
Lender shall have received notice from the Agent pursuant to clause
(C) of the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same
day funds, such Lender's portion of such Competitive Bid Borrowing.
Upon fulfillment of the applicable conditions set forth in Article III
and after receipt by the Agent of such funds, the Agent will make such
funds available to the Borrower at the Agent's address referred to in
Section 8.02. Promptly after each Competitive Bid Borrowing the Agent
will notify each Lender of the amount of the Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be
irrevocable and binding on the Borrower. The Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender
as a
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result of any failure to fulfill on or before the date specified in
the related Notice of Competitive Bid Borrowing for such Competitive
Bid Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to
fund the Competitive Bid Advance to be made by such Lender as part of
such Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in Dollars
and in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof and, following the making of each Competitive Bid Borrowing,
the Borrower shall be in compliance with the limitation set forth in the
proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in
this Section 2.03, the Borrower may from time to time borrow under this Section
2.03, repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing shall not be made
within three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account
of each Lender that has made a Competitive Bid Advance, on the maturity date of
each Competitive Bid Advance (such maturity date being that specified by the
Borrower for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive
Bid Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to subsection (a)(ii) above,
payable on the interest payment date or dates specified by the Borrower for
such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and
during the continuance of an Event of Default under Section 6.01(a) or 6.01(e),
the Borrower shall pay interest on the amount of unpaid principal of and
interest on each Competitive Bid Advance owing to a Lender, payable in arrears
on the date or dates interest is payable thereon, at a rate per annum equal at
all times to 2% per annum above the
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rate per annum required to be paid on such Competitive Bid Advance under the
terms of the Competitive Bid Note evidencing such Competitive Bid Advance
unless otherwise provided in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid
Borrowing, the Borrower shall pay to the Agent for its own account such fees as
may from time to time be agreed between the Borrower and the Agent.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees
to pay to the Agent for the account of each Lender (other than the Designated
Bidders) a facility fee on the aggregate amount of such Lender's Commitment
(computed without giving effect to any Competitive Bid Reduction) from the date
hereof in the case of each Initial Lender and from the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each January, April, July and October commencing
January 31, 1996, and on the Termination Date.
(b) Commitment Fee. The Borrower agrees to pay to the
Agent for the account of each Lender (other than the Designated Bidders) a
commitment fee on the average daily unused portion of such Lender's Commitment
(computed after giving effect to any Competitive Bid Reduction) from the date
hereof in the case of each Initial Lender and from the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each January, April, July and October, commencing
January 31, 1996, and on the Termination Date.
(c) Agent's Fees. The Borrower shall pay to the Agent
for its own account such fees as may from time to time be agreed between the
Borrower and the Agent.
SECTION 2.05. Termination or Reduction of the Commitments.
The Borrower shall have the right, upon at least three Business Days' notice to
the Agent, to terminate in whole or reduce ratably in part the unused portions
of the respective Commitments of the Lenders, provided that each partial
reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and provided further that the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount that is less than the aggregate principal amount of the Competitive Bid
Advances then outstanding.
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SECTION 2.06. Repayment of Revolving Credit Advances. The
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. Except as otherwise provided in Section 2.07(b), the
Borrower shall pay interest on the unpaid principal amount of each Revolving
Credit Advance that is a Dollar Advance and on the Original Dollar Equivalent
of each Revolving Credit Advance that is a Gold Advance owing to each Lender
from the date of such Revolving Credit Advance until such principal amount
shall be paid in full or the applicable quantity of Gold is delivered in
payment of such Gold Advance, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (x) the Base Rate in effect from time
to time plus (y) the Applicable Margin in effect from time to time,
payable in arrears quarterly on the last day of each January, April,
July and October during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Revolving Credit Advance is a Eurodollar Rate Advance, a rate per
annum equal at all times during each Interest Period for such
Revolving Credit Advance to the sum of (x) the Eurodollar Rate for
such Interest Period for such Revolving Credit Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on
the last day of such Interest Period and, if such Interest Period has
a duration of more than three months, on each day that occurs during
such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(iii) CD Rate Advances. During such periods as such
Revolving Credit Advance is a CD Rate Advance, a rate per annum equal
at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Adjusted CD Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable
Margin in effect from time to time, payable in arrears on the last day
of such Interest Period and on the date such CD Rate Advance shall be
Converted or paid in full.
(iv) Gold Advances. During such periods as such Revolving
Credit Advance is a Gold Advance, a rate per annum equal at all times
during each Interest Period for such Revolving Credit Advance to the
sum of (x) the Gold Funding Rate for such Interest Period for such
Revolving Credit Advance plus (y) the Applicable Margin in effect from
time to time, payable in arrears on the last day of such Interest
Period and on the date such Gold Advance shall be Converted or paid in
full.
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(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a) or 6.01(e), the
Borrower shall pay interest on (i) the unpaid principal amount of each
Revolving Credit Advance that is a Dollar Advance and the Original Dollar
Equivalent of each Revolving Credit Advance that is a Gold Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) to
(a)(iv) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Revolving Credit Advance pursuant to
clause (a)(i) to (a)(iv) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall
be paid in full, payable in arrears on the date such amount shall be paid in
full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) The Agent
shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.07(a)(i), (ii),
(iii) or (iv).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of
any Interest Period for any A Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent
will forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances in the case of Dollar Advances or, in the case
of Gold Advances, have an Interest Period of 30 days for the next applicable
Interest Period.
(d) On the date on which the aggregate unpaid principal
amount of A Advances consisting of Dollar Advances comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a) or 6.01(e), (i) each A Advance (other
than a Gold Advance) will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, (ii) each Gold
Advance of any Lender, at the option of such Lender by giving
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written notice to the Agent and the Borrower, will be Converted into a Base
Rate Advance with a principal amount as of the effective date of such notice
equal to the Dollar Equivalent of such Gold Advances as of such date and (iii)
the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances, CD Rate Advances or Gold Advances shall be suspended.
(f) The obligation of the Lenders to make Gold Advances
shall be subject to the agreement of each Lender hereunder, in its sole
discretion, to make such Advances.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of
Sections 2.08 and 2.12, Convert all Revolving Credit Advances (other than Gold
Advances) of one Type comprising the same Borrowing into Revolving Credit
Advances (other than Gold Advances) of another Type or Types; provided,
however, that any Conversion of Eurodollar Rate Advances or CD Rate Advances
into Advances of another Type or Types shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances or CD Rate Advances, any
Conversion of Base Rate Advances into any A Advances (other than Gold Advances)
shall be in an amount not less than the minimum amount specified in Section
2.02(b) and no Conversion of any Revolving Credit Advances shall result in more
separate Revolving Credit Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified
above, specify (i) the date of such Conversion, (ii) the Revolving Credit
Advances to be Converted, and (iii) if such Conversion is into any A Advances
(other than Gold Advances), the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding
on the Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. (a)
Optional. The Borrower may, upon at least one Business Day's notice in the
case of Base Rate Advances and three Business Days' notice in the case of any A
Advance, in each case to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Revolving Credit Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) in the event of any such prepayment of
an A Advance, the Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 8.04(c).
(b) Mandatory. The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Revolving Credit Advances
comprising part of the same Borrowing equal to the amount by which the
Aggregate Current Amount of the Revolving Credit Advances exceeds the aggregate
amount of the Commitments after giving effect to Competitive Bid Reductions.
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SECTION 2.11. Increased Costs. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender of agreeing to
make or making, funding or maintaining A Advances or LIBO Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (A) Taxes or Other Taxes (as to which Section 2.14 shall govern) and (B)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost; provided, however, that before
making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such increased
cost and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Agent by such Lender, shall
be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law
or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Agent), the Borrower
shall pay to the Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. A certificate
as to such amounts submitted to the Borrower and the Agent by such Lender shall
be conclusive and binding for all purposes, absent manifest error.
SECTION 2.12. Illegality; Gold Market Interruption. (a)
Notwithstanding any other provision of this Agreement, if any Lender shall
notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for any Lender or
its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain
Eurodollar Rate Advances or LIBO Rate Advances hereunder, (i) each Eurodollar
Rate Advance or LIBO Rate Advance, as the case may be, will automatically, upon
such demand, Convert into a Base Rate Advance or an Advance that bears interest
at the rate set forth in Section 2.07(a)(i), as the case may be, and
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(ii) the obligation of the Lenders to make Eurodollar Rate Advances or LIBO
Rate Advances or to Convert Revolving Credit Advances (other than Gold
Advances) into Eurodollar Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist; provided, however, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or LIBO Rate Advances or to continue to fund
or maintain Eurodollar Rate Advances or LIBO Rate Advances and would not, in
the judgment of such Lender, be otherwise disadvantageous to such Lender.
(b) If at any time or from time to time a Gold Market
Interruption shall occur with respect to a Lender, such Lender shall
immediately notify the Agent and the Borrower of the existence and nature of
such Gold Market Interruption, and the obligation of the Lenders to make Gold
Advances under Section 2.01 shall immediately be suspended until such Lender
shall give notice to the Agent and the Borrower that such Gold Market
Interruption no longer exists, at which time the obligation of the Lenders to
make Gold Advances under Section 2.01 shall resume in full force and effect.
No Lender shall be liable for any costs or expenses incurred by the Borrower as
a result of any Gold Market Interruption or the suspension of the Lenders'
obligations to make Gold Advances in accordance with this Section 2.12(b).
While any such suspension remains in effect, any Gold Advances which would
otherwise be made by the Lenders shall instead be made as Eurodollar Rate
Advances in an aggregate principal amount equal to the Aggregate Original
Amount of such Gold Advances. If such Lender shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Gold Advances to
maturity and shall so specify in such notice, such Lender shall specify the
Dollar Equivalent of such outstanding Gold Advances in such notice and the
Borrower shall within two Business Days prepay in full the then outstanding
Dollar Equivalent of each such outstanding Gold Advance determined pursuant to
such notice, together with interest thereon. Concurrently with prepaying each
such Gold Advance, the Borrower shall borrow a Base Rate Advance in an equal
principal amount from such Lender (on which interest and principal shall be
payable contemporaneously with the related Gold Advances of the other Lenders),
and such Lender shall make such a Base Rate Advance.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment of principal of, and interest on, Dollar Advances, of
interest on Gold Advances and of other fees and other amounts hereunder and
under the Notes not later than 11:00 A.M. (New York City time) on the day when
due in Dollars to the Agent at the Agent's Account in same day funds. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or facility fees or commitment fees
ratably (other than amounts payable pursuant to Section 2.03, 2.11, 2.12(b),
2.14 or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its
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Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement.
(b) The Borrower shall make each payment of principal of
Gold Advances (i) by physical delivery of Gold to the Agent at a location
requested by the Borrower and agreed by the Agent not later than 11:00 A.M.
(New York City time), or if the parties cannot agree on a location, then (ii)
by crediting to the Agent not later than 3:00 P.M. (London time) in a pool
account with a depository in London of unallocated Gold specified by the Agent,
the quantity of Gold equal to such payment, in each case on the date on which
such payment shall become due. The Agent will promptly thereafter cause to be
distributed ratably to the Lenders by crediting to each Lender, in a pool
account in London specified by such Lender, the quantity equal to such payment.
(c) Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(d) The Borrower hereby authorizes each Lender, if and to
the extent payment owed to such Lender is not made when due hereunder or under
the Note held by such Lender, to charge from time to time against any or all of
the Borrower's accounts with such Lender any amount so due.
(e) All computations of interest based on the Base Rate
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate,
Adjusted CD Rate, Gold Funding Rate or the Federal Funds Rate and of facility
fees or commitment fees shall be made by the Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest or
fees are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(f) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
facility fee or commitment fee, as the case may be; provided, however, that, if
such extension would cause payment of interest on or principal of Eurodollar
Rate Advances or LIBO Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
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(g) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall (i) in the case such amount distributed by the
Agent was in Dollars, repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Agent, at the Federal Funds Rate or (ii) in the case
such amount distributed by the Agent was in a quantity of Gold, interest on the
Dollar Equivalent thereof on the date such amount was distributed for each day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent at a rate per annum equal to the Gold
Funding Rate, as determined by the Agent, that would be applicable to a Gold
Advance in an amount equal to such quantity of Gold and for an Interest Period
of one day.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in accordance with Section
2.13, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which
such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note to any Lender or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.14) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, performing under,
or otherwise with respect to, this Agreement or the Notes (hereinafter referred
to as "Other Taxes").
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(c) The Borrower shall indemnify each Lender and the
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) imposed on or paid by such Lender or the Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within
30 days from the date such Lender or the Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect
thereof, the Borrower shall furnish, or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender that is not a citizen or resident of the
United States, a corporation, partnership, or other entity created or organized
in or under the laws of the United States or any state thereof, or an estate or
trust that is subject to federal income taxation regardless of source of its
income, on or prior to the date of its execution and delivery of this Agreement
in the case of each Initial Lender and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing by the
Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Borrower with two original Internal
Revenue Service Forms 1001 or 4224, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, or, in the case of a Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Internal Revenue Code with respect to payments of "portfolio
interest," a Form W-8, or any successor or other form prescribed by the
Internal Revenue Code (and, if such Lender delivers a Form W-8, an annual
certificate representing that (i) such Lender is not a "bank" for purposes of
Section 881(c) of the Internal Revenue Code (and is not subject to regulatory
or other legal requirements as a bank in any jurisdiction, and has not been
treated as a bank in any filing with or submission made to any government or
rating agency), (ii) is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower and (iii) is
not a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Internal Revenue Code)), along with such
other additional forms or certificates as the Borrower or the Agent may
reasonably request, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender at the time such
Lender first becomes a party to this Agreement indicate a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying
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that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date
hereof by Internal Revenue Service form 1001 or 4224, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof
to the Borrower and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form or certificate (or
failed to provide substantially all of the information required by such form or
certificate) described in Section 2.14(e) (other than if such failure is due to
a change in law occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to indemnification
under Section 2.14(a) or (c) with respect to Taxes imposed by the United States
by reason of such failure or such notification; provided, however, that should
a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) The agreements in this Section 2.14 shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.11, 2.12(b), 2.14 or 8.04(c) or
8.07) in excess of its ratable share of payments on account of the Revolving
Credit Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Revolving Credit
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the
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purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
only to refinance outstanding Debt (if any) of the Borrower under the Existing
Credit Agreement, to pay transaction fees and expenses of the Borrower, to
provide working capital for the Borrower and for general corporate purposes of
the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change
since December 31, 1994.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any other Loan
Document or the consummation of the transactions contemplated hereby
or thereby.
(c) All governmental and third party consents and
approvals, if any, necessary in connection with the transactions
contemplated hereby or by the other Loan Documents shall have been
obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect, all applicable
waiting periods shall have expired without any action being taken by
any competent authority and no law or regulation shall be applicable
in the reasonable judgment of the Lenders that restrains, prevents or
imposes materially adverse conditions upon the transactions
contemplated hereby.
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(d) The Borrower shall have notified each Lender and the
Agent in writing as to the proposed Effective Date, which shall not be
later than November 15, 1995.
(e) The Borrower shall have paid all accrued fees and
expenses of the Agent and the Lenders (including the accrued fees and
expenses of counsel to the Agent).
(f) On the Effective Date, the following statements shall
be true and the Agent shall have received for the account of each
Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained
in each Loan Document are true and correct on and as of the
Effective Date,
(ii) No event has occurred and is continuing that
constitutes a Default,
(iii) There have been no amendments to the charter
of the Borrower or any Guarantor since the date of the
Secretary of State's Certificate referred to in Section
3.01(g)(vi),
(iv) The by-laws of the Borrower and each
Guarantor delivered pursuant to Section 3.01(g)(iii) are true
and correct as in effect on the Effective Date, and
(v) The Information Memorandum and all other
information, exhibits and reports furnished by any Loan Party
to the Agent and the Lenders in connection with the
negotiation of the Loan Documents, taken as a whole, do not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were
made, not misleading.
(g) The Agent shall have received on or before the
Effective Date the following, each dated such day, in form and
substance satisfactory to the Agent and (except for the Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes and the Gold Notes
to the order of the Lenders, respectively.
(ii) A guaranty in substantially the form of
Exhibit E (together with each other guaranty delivered
pursuant to Section 5.01(n), in each case as amended,
supplemented or otherwise modified from time to time in
accordance with its terms, the "Guaranty"), duly executed by
each Guarantor.
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(iii) Certified copies (A) of the resolutions of
the board of directors of the Borrower and each Guarantor
approving the Loan Documents to which it is or is to be a
party, (B) of the by-laws of the Borrower and each Guarantor
as in effect on the Effective Date and (C) of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to the Loan Documents.
(iv) A certificate of the Secretary or an
Assistant Secretary of the Borrower and each Guarantor
certifying the names, titles and true signatures of the
officers of the Borrower and such Guarantor authorized to sign
the Loan Documents to which they are or are to be parties and
the other documents to be delivered hereunder.
(v) A copy of the charter of the Borrower and
each Guarantor and each amendment thereto, certified (as of a
date reasonably near the date of the Effective Date) by the
Secretary of State of the jurisdiction of its incorporation as
being a true and correct copy thereof.
(vi) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated
reasonably near the date of the Effective Date listing the
charter of the Borrower and each Guarantor and each amendment
thereto on file in his office and certifying that (A) such
amendments are the only amendments to the Borrower's or such
Guarantor's charter on file in his office, (B) if applicable,
the Borrower and each Guarantor have paid all franchise taxes
to the date of such certificate and (C) the Borrower and each
Guarantor are duly incorporated and in good standing under the
laws of the State of the jurisdiction of its incorporation.
(vii) An opinion of Xxxxx & Xxxxx, counsel for the
Borrower and each Guarantor, substantially in the form of
Exhibit F hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(viii) An opinion of Xxxxxx X. Xxxxx, Esq., General
Counsel of the Borrower, substantially in the form of Exhibit
G hereto.
(ix) An opinion of Shearman & Sterling, counsel
for the Agent, in form and substance satisfactory to the
Agent.
(h) All commitments under the Existing Credit Agreement
shall have been terminated in whole pursuant to the terms thereof, and the
Borrower shall have delivered to the Agent certified copies of irrevocable
notices effecting such termination pursuant to Section 2.05 thereof. All
amounts payable by the Borrower under such agreement shall have been paid in
full.
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SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing (including the initial
Borrowing) shall be subject to the conditions precedent that the Effective Date
shall have occurred, no Event of Default shall have occurred and be continuing
or would result from such Revolving Credit Borrowing or from the application of
the proceeds therefrom and on the date of such Revolving Credit Borrowing, if
after giving effect to such Borrowing (other than the initial Revolving Credit
Borrowing hereunder) there would be an increase in the Aggregate Original
Amount of Revolving Credit Advances (a) the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing
and the acceptance by the Borrower of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by the Borrower that
on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in each
Loan Document are true and correct on and as of the date of such
Revolving Credit Borrowing, before and after giving effect to such
Revolving Credit Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would
result from such Revolving Credit Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing,
in a principal amount equal to the principal amount of the Competitive Bid
Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such Competitive Bid Advance in accordance with Section 2.03, and (iii) on
the date of such Competitive Bid Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Competitive Bid
Borrowing and the acceptance by the Borrower of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by the
Borrower that on the date of such Competitive Bid Borrowing such statements are
true):
(a) the representations and warranties contained in each
Loan Document are true and correct on and as of the date of such
Competitive Bid Borrowing, before and
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after giving effect to such Competitive Bid Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date,
(b) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the Borrower that has been
provided to the Agent and each Lender by the Borrower in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact or any fact necessary to make the
statements contained therein, in the light of the circumstances under
which they were made, not misleading.
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in Section
3.01, each Lender shall be deemed to have consented to, approved or accepted or
to be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders unless
an officer of the Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that
the Borrower, by notice to the Lenders, designates as the proposed Effective
Date, specifying its objection thereto. The Agent shall promptly notify the
Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Set forth on Schedule 4.01(b) hereto is a complete
and accurate list of all Subsidiaries of each Loan Party (other than
Subsidiaries of NML and Subsidiaries that are joint ventures where the
Investment by all Loan Parties in such joint venture is less than
$1,000,000), showing as of the date of this Agreement (as to each such
Subsidiary) the jurisdiction of its incorporation, the number of
shares of each class of capital stock authorized, and the number
outstanding, on the date of this Agreement and the percentage of the
outstanding shares of each such class owned (directly or indirectly)
by such Loan Party and the number of shares covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights
as of the date of
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this Agreement. As of the date of this Agreement, all of the
outstanding capital stock of all of such Subsidiaries has been validly
issued, is fully paid and non-assessable and is owned by such Loan
Party or one or more of its Subsidiaries free and clear of all Liens,
except as may be set forth in such Schedule.
(c) The execution, delivery and performance by each Loan
Party of this Agreement, the Notes and each other Loan Document to
which it is to be a party, and the consummation of the transactions
contemplated hereby and thereby, are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene such Loan Party's charter or bylaws,
(ii) violate any law (including, without limitation, the Securities
Exchange Act of 1934, as amended, and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of
1970), rule, regulation (including, without limitation, Regulation X
of the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict
with or result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) result in or require
the creation or imposition of any Lien upon or with respect to any of
the properties of any Loan Party or any of its Subsidiaries.
(d) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes or any other Loan Document to which it is or is
to be a party, or for the consummation of the transactions
contemplated hereby or thereby or (ii) the exercise by the Agent or
any Lender of its rights under the Loan Documents.
(e) This Agreement has been, and each of the Notes and
each other Loan Document when delivered hereunder will have been, duly
executed and delivered by each Loan Party party thereto. This
Agreement is, and each of the Notes and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation
of each Loan Party party thereto, enforceable against such Loan Party
in accordance with its terms.
(f) The Consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries as at December 31, 1994, the related
Consolidated and consolidating statements of income and the related
Consolidated statement of cash flows of the Borrower and its
Subsidiaries for the Fiscal Year then ended, accompanied by an opinion
of Xxxxxx Xxxxxxxx LLP, independent public accountants on such
Consolidated statements, and the Consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as at June 30,
1995, the related Consolidated and consolidating statements of income
and the related Consolidated statement of cash flows of the
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Borrower and its Subsidiaries for the six months then ended, duly
certified by the chief financial officer of the Borrower, copies of
which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheet as at June 30, 1995, and said
statements of income and cash flows for the six months then ended, to
year-end audit adjustments, the Consolidated and consolidating
financial condition of the Borrower and its Subsidiaries as at such
dates and the Consolidated and consolidating results of the operations
of the Borrower and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
consistently applied. Since December 31, 1994, there has been no
Material Adverse Change.
(g) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Borrower or any of
its Subsidiaries before any court, governmental agency or arbitrator
that (i)(A) other than with respect to any Environmental Action, could
be reasonably expected to have a Material Adverse Effect or (B) solely
with respect to any Environmental Action, would be reasonably expected
to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any other
Loan Document or the consummation of the transactions contemplated
hereby or thereby.
(h) The operations and properties of the Borrower and
each of its Subsidiaries comply with all applicable Environmental Laws
and Environmental Permits and all past non-compliance with such
Environmental Laws and Environmental Permits has been resolved without
material ongoing obligations or costs, except to the extent any
failure to so comply or past non-compliance, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect, and no circumstances exist that would be reasonably expected
to (i) form the basis of an Environmental Action against the Borrower
or any of its Subsidiaries or any of their properties that would have
a Material Adverse Effect or (ii) cause any such property to be
subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that would have a Material
Adverse Effect.
(i) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U). Following the application
of the proceeds of each Advance, not more than 25% of the value of the
assets of the Borrower, or of the Borrower and its Subsidiaries, which
are subject to any limitation set forth in Section 5.02(a), Section
5.02(b) or Section 5.02(f), will be such margin stock.
(j) The Information Memorandum and all other information,
exhibits and reports furnished by any Loan Party to the Agent and the
Lenders in connection with the negotiation of or pursuant to the Loan
Documents, taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made therein, in light of the circumstances under which
they were
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made, not misleading (it being understood that the Borrower's
representation as to any projections included in the foregoing are
that such projections were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were reasonable at the
time of delivery of such projections, and that actual results during
the period or periods covered by such projections may differ
therefrom).
(k) Neither the business nor the properties of any Loan
Party or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that could be
reasonably expected to have a Material Adverse Effect (it being
understood that, to the extent any such expected Material Adverse
Effect would not arise except by reason of noncompliance with
Environmental Laws or Environmental Permits or other circumstances
described in Section 4.01(h), Section 4.01(h) rather than this Section
4.01(k) shall govern).
(l) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in
all tax returns (Federal, state, local and foreign) required to be
filed and has paid all taxes shown thereon to be due, together with
applicable interest and penalties, the failure to do any of which
would have a Material Adverse Effect.
(m) Set forth on Schedule 4.01(m) hereto is a complete
and accurate list, as of the date of this Agreement, of each taxable
year of each Loan Party and each of its Subsidiaries and Affiliates
for which Federal income tax returns have been filed and for which the
expiration of the applicable statute of limitations for assessment or
collection has not occurred by reason of extension or otherwise (an
"Open Year").
(n) The aggregate unpaid amount, as of the date of this
Agreement, of adjustments to the Federal income tax liability of each
Loan Party and each of its Subsidiaries and Affiliates proposed by the
Internal Revenue Service with respect to Open Years does not exceed
$1,000,000. No issues have been raised by the Internal Revenue
Service in respect of Open Years that, in the aggregate, could be
reasonably expected to have a Material Adverse Effect.
(o) The aggregate unpaid amount, as of the date of this
Agreement, of adjustments to the state, local and foreign tax
liability of each Loan Party and its Subsidiaries and Affiliates
proposed by all state, local and foreign taxing authorities (other
than amounts arising from adjustments to Federal income tax returns)
does not exceed $1,000,000 in excess of reserves shown as liabilities
on the balance sheet of such Person. No issues have been raised by
such taxing authorities that, in the aggregate, could be reasonably
expected to have a Material Adverse Effect.
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(p) No Loan Party is an "investment company" or a company
"controlled by" an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended. No other Subsidiary
of the Borrower is required to be registered under such Act.
(q) Set forth on Schedule 4.01(q) hereto is a complete
and accurate list of all Material Contracts of each Loan Party as of
the date of this Agreement, showing as of the date of this Agreement
the parties, subject matter and term thereof. Each Material Contract
has been duly authorized, executed and delivered by all parties
thereto, has not been amended or otherwise modified except as
otherwise indicated on such Schedule, and is in full force and effect
and is binding upon and enforceable against all parties thereto in
accordance with its terms, in each case, where the failure to do so
could reasonably be expected to have a Material Adverse Effect, and
there exists no default under any Material Contract by any party
thereto which could reasonably be expected to have a Material Adverse
Effect.
(r) No material ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan.
(s) As of the last annual actuarial valuation date, the
funded current liability percentage, as defined in Section 302(d)(8)
of ERISA, of each Plan exceeds 90% and there has been no material
adverse change in the funding status of any Plan since such date.
(t) Neither the Borrower nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability
in excess of $500,000 to any Multiemployer Plan.
(u) Neither the Borrower nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA.
(v) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.01(m), the Borrower
and its Subsidiaries have no material liability with respect to
"expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(w) All commitments under the Existing Credit Agreement
have been terminated in whole, or irrevocable notice to terminate such
commitments under the Existing Credit Agreement shall be given
contemporaneously with the execution of this Agreement, pursuant to
the terms thereof, and the Borrower has delivered to the Agent
certified copies of irrevocable notices effecting such termination
pursuant to
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Section 2.05 thereof. As of the Effective Date, all amounts payable
by the Borrower under such agreement have been paid in full.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of
its Subsidiaries, other than NML and Subsidiaries of NML, to comply,
with all applicable laws, rules, regulations and orders, except to the
extent the failure to do so could not be reasonably expected to have a
Material Adverse Effect, such compliance to include, without
limitation, compliance with ERISA; provided, however, that compliance
with Environmental Laws shall be as provided in Section 5.01(k).
(b) Payment of Taxes, Etc. Except to the extent the
failure to do so could not be reasonably expected to have a Material
Adverse Effect, pay and discharge, and cause each of its Subsidiaries,
other than NML and Subsidiaries of NML, to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its property
and (ii) all lawful claims that, if unpaid, might by law become a Lien
upon its property; provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained in accordance with GAAP, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each
of its Material Subsidiaries, other than NML and Subsidiaries of NML,
to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory),
privileges and franchises; provided, however, that the Borrower and
its Subsidiaries may consummate any merger or consolidation permitted
under Section 5.02(b) and provided further that neither the Borrower
nor any of its Subsidiaries shall be required to preserve any right,
privilege or franchise if the board of directors of the Borrower or
such
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Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower and the
Guarantors, taken as a whole, or the Borrower and its Subsidiaries,
taken as a whole, or the Lenders.
(e) Visitation Rights. At any reasonable time and from
time to time, permit the Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries (other than NML and
Subsidiaries of NML), and use commercially reasonable efforts (to the
extent consistent with the fiduciary duties of the Borrower as a
shareholder of NML and of the Borrower's representatives on NML's
board of directors) to permit the Agent or any of the Lenders or any
agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, NML and its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower or any of its Subsidiaries with
any of their officers or directors and with their independent
certified public accountants.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
proper entries shall be made of financial transactions and the assets
and business of the Borrower and each such Subsidiary in accordance
with generally accepted accounting principles in effect from time to
time.
(g) Maintenance of Properties, Etc. Maintain and
preserve, cause each of its Subsidiaries, other than NML and
Subsidiaries of NML, to maintain and preserve, all of its properties
that are used or useful in the conduct of the business of the Borrower
and the Guarantors, taken as a whole, or the Borrower and its
Subsidiaries, taken as a whole, in good working order and condition,
ordinary wear and tear excepted, provided, however, that this Section
5.01(g) shall not prevent the Borrower or any Subsidiary from
discontinuing the operation or maintenance of any of such properties
if such discontinuance is (1) in the judgment of both (A) the chief
executive officer or the chief operating officer and (B) the chief
financial officer of the Borrower or such Subsidiary, desirable in the
conduct of the business of the Borrower and the Guarantors, taken as a
whole, or the Borrower and its Subsidiaries, taken as a whole, and (2)
not disadvantageous in any material respect to the Lenders.
(h) Transactions with Affiliates. Conduct, and cause
each of its Subsidiaries, other than NML and Subsidiaries of NML, to
conduct, all transactions otherwise permitted under this Agreement
with any of their Affiliates (other than transactions between the
Borrower and any Guarantor or between Guarantors to the extent there
is no consensual encumbrance or restriction of any kind on such
Guarantor's ability to pay dividends, or make any other distributions,
to repay or prepay any Debt owed by such Guarantor to the Borrower or
any other Guarantor, to make loans or advances to the Borrower or any
other Guarantor or to transfer any of its property or assets to the
Borrower or any other Guarantor) on terms that are no less
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favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate,
provided that this Section 5.01(h) shall not restrict (i) any
investments, loans or advances permitted by Section 5.02(d) or
5.02(h)(iii) or (ii) the payment of reasonable compensation to the
directors and officers of the Borrower or its Subsidiaries, in each
case as determined in good faith by the board of directors of the
Borrower or such Subsidiary, as the case may be.
(i) Compliance with Terms of Leaseholds. Make, and cause
each of its Material Subsidiaries, other than NML and Subsidiaries of
NML, to make, all payments and otherwise perform all obligations in
respect of all leases of real property to which the Borrower or such
Material Subsidiary, as applicable, is a party, keep such leases in
full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or
cancelled, except, in any case, where the failure to do so, either
individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect.
(j) Performance of Material Contracts. Perform and
observe all the terms and provisions of each Material Contract to be
performed or observed by it, maintain each such Material Contract in
full force and effect, enforce each such Material Contract in
accordance with its terms, and upon the occurrence and continuance of
a Default hereunder, take all such action to such end as may be from
time to time reasonably requested by the Agent and, upon request of
the Agent, make to each other party to each such Material Contract
such reasonable demands and requests for information and reports or
for action as the Borrower is entitled to make under such Material
Contract, and cause each of its Subsidiaries (other than NML and
Subsidiaries of NML) to do so except, in any case, where the failure
to do so, either individually or in the aggregate, could not be
reasonably expected to have a Material Adverse Effect.
(k) Compliance with Environmental Laws. Except to the
extent that any failure to do any of the following would not
reasonably be expected to have a Material Adverse Effect (i) comply,
and cause each of its Subsidiaries, other than NML and Subsidiaries of
NML, and use commercially reasonable efforts to cause all lessees and
other Persons operating or occupying its properties to comply, in all
material respects, with all applicable Environmental Laws and
Environmental Permits; (ii) obtain and renew and cause each of its
Subsidiaries, other than NML and Subsidiaries of NML, to obtain and
renew all Environmental Permits necessary for its operations and
properties; and (iii) conduct, and cause each of its Subsidiaries,
other than NML and Subsidiaries of NML, to conduct, any investigation,
study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith
and
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by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances.
(l) Maintenance of Permits, etc. Except to the extent
that any failure to do any of the following could not be reasonably
expected to have a Material Adverse Effect (i) comply, cause each of
its Subsidiaries, other than NML and Subsidiaries of NML, to comply,
and use commercially reasonable efforts to cause all lessees and other
Persons operating or occupying its properties to comply, in all
material respects, with all permits (other than Environmental
Permits), licenses and approvals necessary for its operations and
properties; and (ii) preserve, maintain, renew and keep in full force
and effect and cause each of its Subsidiaries, other than NML and
Subsidiaries of NML, to preserve, maintain, renew and keep in full
force and effect, all permits (other than Environmental Permits),
licenses and approvals necessary for its operations and properties.
(m) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within
50 days after the end of each of the first three quarters of
each Fiscal Year of the Borrower, Consolidated and
consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter, Consolidated and
consolidating statements of income and Consolidated statements
of cash flows of the Borrower and its Subsidiaries, and
Consolidated statements of cash flows of the Borrower and its
Wholly-Owned Subsidiaries for the period commencing at the end
of the previous Fiscal Year and ending with the end of such
quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as
having been prepared in accordance with generally accepted
accounting principles and certificates of the chief financial
officer of the Borrower as to compliance with the terms of
this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section
5.03, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such
financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(ii) as soon as available and in any event within
95 days after the end of each Fiscal Year of the Borrower, (A)
a copy of an annual report for such year for the Borrower and
its Subsidiaries, containing Consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as of the
end of such Fiscal Year and Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for such
Fiscal Year, in each case accompanied by an opinion (as to
such Consolidated statements) acceptable to the Required
Lenders by Price Waterhouse LLP or other independent public
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accountants acceptable to the Required Lenders, (b)
Consolidated and consolidating statements of income and
Consolidated statement of cash flows of the Borrower and its
Wholly-Owned Subsidiaries for such Fiscal Year, duly certified
by the chief financial officer of the Borrower as having been
prepared in accordance with generally accepted accounting
principles, and (c) certificates of the chief financial
officer of the Borrower as to compliance with the terms of
this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section
5.03, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such
financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(iii) as soon as available and in any event no
later than 95 days after the end of each Fiscal Year of the
Borrower, forecasts prepared by management of the Borrower, in
form consistent with that provided in connection with the
Information Memorandum, of balance sheets, income statements
and cash flow statements on a quarterly basis (including
projected production) for the Fiscal Year following such
Fiscal Year then ended and on an annual basis for each Fiscal
Year thereafter until the Termination Date;
(iv) as soon as possible and in any event within
five days after the occurrence of each Default continuing on
the date of such statement, a statement of the chief financial
officer of the Borrower describing the nature thereof in
reasonable detail and the action that the Borrower has taken
and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to any of its
securityholders, and copies of all reports and registration
statements that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(vi) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the Borrower or
any of its Subsidiaries of the type described in Section
4.01(g);
(vii) (A) promptly and in any event within 10 days
after the Borrower or any ERISA Affiliate knows or has reason
to know that any ERISA Event has occurred, a statement of the
chief financial officer of the Borrower describing such ERISA
Event and the action, if any, that the Borrower or such ERISA
Affiliate has taken and proposes to take with respect thereto
and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information;
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(viii) promptly and in any event within two Business
Days after receipt thereof by the Borrower or any ERISA
Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(ix) promptly and in any event within 30 days
after the receipt thereof by the Borrower or any ERISA
Affiliate, a copy of the annual actuarial report for each Plan
the funded current liability percentage (as defined in Section
302(d)(8) of ERISA) of which is less than 90% or the unfunded
current liability of which exceeds $1,000,000;
(x) promptly and in any event within five
Business Days after receipt thereof by the Borrower or any
ERISA Affiliate from the sponsor of a Multiemployer Plan,
copies of each notice concerning (A) the imposition of
Withdrawal Liability by any such Multiemployer Plan, (B) the
reorganization or termination, within the meaning of Title IV
of ERISA, of any such Multiemployer Plan or (C) the amount of
liability incurred, or that may be incurred, by the Borrower
or any ERISA Affiliate in connection with any event described
in clause (A) or (B);
(xi) promptly after the assertion or occurrence
thereof, notice of any Environmental Action against or of any
noncompliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that would
reasonably be expected to have a Material Adverse Effect;
(xii) promptly and in any event within two Business
Days after any change in the Borrower's senior unsecured
long-term debt ratings by Xxxxx'x or S&P written notice of
such change;
(xiii) promptly upon any Person becoming a
Subsidiary of any Loan Party and in any event upon the last
Business Day of each quarter of each Fiscal Year of the
Borrower, a written notice setting forth with respect to such
Person (A) the date on which such Person became a Subsidiary
of such Loan Party and (B) all of the information required to
be set forth in Schedule 4.01(b) annexed hereto with respect
to all Subsidiaries of any Loan Party (it being understood
that such written notice shall be deemed to supplement
Schedule 4.01(b) annexed hereto for all purposes of this
Agreement);
(xiv) as soon as practicable and in any event no
later than 50 days after the end of each of the first three
fiscal quarters of each Fiscal Year of the Borrower, and no
later than 95 days after the end of each Fiscal Year of the
Borrower, a written notice setting forth any additional
Material Contracts entered into by any Loan Party on or after
the date of this Agreement, including
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all of the information required to be set forth in Schedule
4.01(q) annexed hereto with respect to all Material Contracts
of any Loan Party (it being understood that such written
notice shall be deemed to supplement Schedule 4.01(q) annexed
hereto for all purposes of this Agreement); and
(xv) such other information respecting the
Borrower or any of its Subsidiaries as any Lender through the
Agent may from time to time reasonably request.
(n) Additional Guarantees. Promptly upon any Person
becoming a Subsidiary of the Borrower and in any event within 5
Business Days after the delivery of the financial statements required
to be delivered pursuant to Sections 5.01(m)(i) and 5.01(m)(ii), the
Borrower shall cause any Additional Designated Guarantor that is not
otherwise a Guarantor to execute and deliver to the Agent a Guaranty
substantially in the form of Exhibit E hereto. Each such Guaranty
shall be accompanied by such resolutions, incumbency certificates and
legal opinions as are reasonably requested by the Agent and are in
form and substance reasonably satisfactory to the Agent.
(o) NML and Subsidiaries of NML. Notwithstanding the
exclusion of NML and Subsidiaries of NML from the covenants set forth
in Sections 5.01(a), 5.01(b), 5.01(g), 5.01(i), 5.01(j), 5.01(k),
5.01(l) and 5.02(l), following the Borrower's obtaining actual
knowledge of any event or circumstance which would result in
noncompliance with any of such covenants if NML and Subsidiaries of
NML had been included, use reasonable efforts (to the extent
consistent with the fiduciary duties of the Borrower as a shareholder
of NML and of the Borrower's representatives on NML's board of
directors) to cause NML or its Subsidiaries, as the case may be, to
comply with such covenants as if NML and Subsidiaries of NML were
included in such covenants.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any
of its Subsidiaries, other than NML and Subsidiaries of NML, to create
or suffer to exist, any Lien on or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or
permit any of its Subsidiaries to assign, any right to receive income
(other than any right to receive income that is accounted for as a
sale in accordance with GAAP), other than:
(i) (A) Liens arising in connection with
Capitalized Leases and (B) purchase money Liens upon or in any
real property or equipment acquired or held by the Borrower or
any Subsidiary in the ordinary course of business to secure
the purchase price of such property or equipment or to secure
Debt incurred solely for the purpose of financing the
acquisition of such property or equipment, or Liens existing
on such property or equipment at the time of its
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acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such property or equipment) or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided, however, that no
such Lien shall extend to or cover any properties of any
character other than the property covered by such Capitalized
Lease or the real property or equipment being acquired,
constructed or improved and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the aggregate principal amount
of the indebtedness secured by the Liens referred to in clause
(i)(A) or (i)(B) shall not exceed, in each case, an amount
equal to $30,000,000 at any time outstanding;
(ii) Liens upon property or assets (other than
properties or assets which, as of the date of this Agreement,
held proved or probable mineral reserves in countries
classified in Category I under the country classifications
adopted in the OECD Arrangement on Officially Supported Export
Credits at the beginning of the 1995 Fiscal Year) of Project
Subsidiaries incurred in connection with non-recourse project
Debt (including the Inti Raymi Project Loans); provided, that
the aggregate principal amount of such non-recourse project
Debt secured by such Liens shall not exceed $150,000,000 less
the sum of (i) the aggregate amount of Capitalized Leases of
the Borrower plus (ii) the aggregate amount of purchase money
Debt of the Borrower or any Subsidiary;
(iii) other Liens securing Debt and other
obligations of the Borrower or its Subsidiaries in an
aggregate principal amount at any one time outstanding not to
exceed 5% of the Consolidated total tangible assets of the
Borrower and the Guarantors;
(iv) Permitted Liens;
(v) Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto;
(vi) Liens securing the performance of bids,
tenders, leases, contracts (other than for the repayment of
borrowed money or gold obligations), statutory obligations,
surety, customs and appeal bonds and other obligations of like
nature, incurred by the Borrower or any Subsidiary of the
Borrower as an incident to and in the ordinary course of
business;
(vii) statutory landlord's Liens under any lease
not prohibited by this Agreement to which the Borrower or any
Subsidiary of the Borrower is a party;
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(viii) Liens arising out of judgments or awards
(other than any judgment described in Section 6.01(f) or (g)
hereof and constituting an Event of Default thereunder) in
respect of which the Borrower or any of its Subsidiaries shall
in good faith be prosecuting an appeal or proceedings for
review and in respect of which it shall have secured a
subsisting stay of execution pending such appeal or
proceedings for review, provided, it shall have set aside on
its books adequate reserves, in accordance with GAAP, with
respect to such judgment or award;
(ix) Liens on the property or assets of any
Subsidiary of the Borrower in favor of the Borrower or any
Guarantor;
(x) any arrangement with respect to a joint
venture to which the Borrower or any of its Subsidiaries is a
party where legal title to assets in which the Borrower or any
of its Subsidiaries has a beneficial interest is held in the
name of the operator or any other joint venturer party to such
joint venture or in the name of the joint venture if such
arrangement is not for the purpose of securing Debt; provided,
however, such arrangements shall not apply to assets which, as
of the date of this Agreement are not subject to such Liens
and held proved or probable mineral reserves in countries
classified in Category I under the country classifications
adopted in the OECD Arrangement on Officially Supported Export
Credits at the beginning of the 1995 Fiscal Year;
(xi) the paramount rights of the United States of
America or any other domestic governmental authority or any
foreign governmental authority in and to any unpatented mining
or mill site claims or leases held by the Borrower or any of
its Subsidiaries; and
(xii) Liens on the property being developed or
operated by a joint venture to which the Borrower or any of
its Subsidiaries is a party in favor of the operator or
another joint venturer party to such joint venture securing
the respective obligations of the joint venturers party to
such joint venture to advance funds or reimburse advances of
funds or to perform obligations under the applicable joint
venture agreement; provided, however, such arrangements shall
not apply to properties which, as of the date of this
Agreement are not subject to such Liens and held proved or
probable mineral reserves in countries classified in Category
I under the country classifications adopted in the OECD
Arrangement on Officially Supported Export Credits at the
beginning of the 1995 Fiscal Year.
(b) Mergers, Etc. Merge or consolidate with or into any
Person, or permit any of its Subsidiaries (other than NML or
Subsidiaries of NML) to do so, except that any Subsidiary of the
Borrower may merge or consolidate with or into any other Subsidiary of
the Borrower, provided that, in the case of any such merger or
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58
consolidation, the Person formed by such merger or consolidation shall
be a Wholly-Owned Subsidiary of the Borrower and each of the Borrower
and any of its Subsidiaries may merge into any other Person or permit
any other Person to merge into or consolidate with it; provided,
however, that in each case, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes a Default and,
in the case of any such merger to which the Borrower is a party, the
Borrower is the surviving corporation.
(c) Accounting Changes. Make or permit, or permit any of
its Subsidiaries to make or permit, any change in (i) accounting
policies or reporting practices, except as required or permitted by
generally accepted accounting principles or (ii) its Fiscal Year.
(d) Debt. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Debt other than:
(i) Debt under the Loan Documents,
(ii) Debt of the Borrower secured by Liens
permitted by Sections 5.02(a)(i) and 5.02(a)(ii) and
Capitalized Leases of the Borrower, not to exceed in the
aggregate $150,000,000 at any time outstanding; provided,
however, (A) Capitalized Leases shall not exceed in the
aggregate $30,000,000 at any time outstanding and (B) purchase
money secured Debt shall not exceed in the aggregate
$30,000,000 at any time outstanding,
(iii) unsecured Debt of the Borrower not otherwise
permitted which does not exceed the aggregate principal amount
of $50,000,000 at any one time outstanding, which unsecured
Debt ranks subordinate to or pari passu with Debt under this
Agreement and the covenants, defaults and similar provisions
applicable to such Debt are no more restrictive in any respect
than the provisions contained in this Agreement and do not
conflict with the provisions of this Agreement,
(iv) Subordinated Debt of the Borrower not
exceeding the aggregate principal amount of $200,000,000 at
any one time outstanding, provided that, in the case of any
Subordinated Debt other than the 6% Convertible Subordinated
Debentures, (A) the interest rate payable on the principal
amount of such Subordinated Debt is no greater than the
greater of (1) 10% per annum or (2) the sum of the yield on
U.S. Treasury Bills of comparable maturity to such
Subordinated Debt plus 3.5% per annum at the time of issuance,
(B) the covenants, defaults and similar provisions applicable
to such Subordinated Debt are no more restrictive to the
Borrower in any respect than the provisions contained in the
Subordinated Debt Fiscal and Paying Agency Agreement, and
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(C) such Subordinated Debt shall not have a maturity or any
principal or sinking fund payment before December 31, 2005,
(v) unsecured non-recourse Debt of any Person
that becomes a Subsidiary of the Borrower after the date
hereof in accordance with the terms of Section 5.02(h) that is
existing at the time such Person becomes a Subsidiary of the
Borrower (other than Debt incurred solely in contemplation of
such Person becoming a Subsidiary of the Borrower),
(vi) Debt incurred by NML and Subsidiaries of NML
unless the creation, incurrence or assumption of such Debt
would reasonably be expected to cause an Event of Default,
(vii) in the case of the Borrower, Debt owed to any
Guarantor, provided such intercompany Debt owed by the
Borrower to any Guarantor shall be subordinated in right of
payment to the payment in full of all amounts payable to the
Agent and the Lenders under this Agreement, and
(viii) in the case of any of its Subsidiaries, Debt
owed to the Borrower or to any Material Subsidiary of the
Borrower.
(e) Lease Obligations. Create, incur, assume or suffer
to exist, or permit any of its Subsidiaries, other than NML and
Subsidiaries of NML, to create, incur, assume or suffer to exist, any
obligations as lessee (i) for the rental or hire of real or personal
property in connection with any sale and leaseback transaction or (ii)
for the rental or hire of real or personal property of any kind under
leases or agreements to lease (other than Capitalized Leases and
leases of mineral properties or interests therein) having an original
term of one year or more that would cause the direct and contingent
liabilities of the Borrower and its Subsidiaries, on a Consolidated
basis, in respect of all such obligations to exceed $10,000,000
payable in any period of 12 consecutive months.
(f) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries, other than
NML and Subsidiaries of NML, to sell, lease, transfer or otherwise
dispose of, any assets, including, without limitation, any
manufacturing plant or substantially all assets constituting the
business of a division, branch or other unit operation, or grant any
option or other right to purchase, lease or otherwise acquire any such
assets, including, without limitation, through sale and leaseback
transactions, except (i) sales of inventory in the ordinary course of
its business, (ii) in a transaction authorized by subsection (b) of
this Section, (iii) forward sales of metals provided that the
aggregate amount of any metal required to be delivered pursuant to
such forward sales of metal in any calendar year does not exceed 80%
of the projected production of such metal for such year as shown in
the most recent plan delivered pursuant to Section 5.01(m)(iii), (iv)
sales of assets described in a
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letter dated the date of this Agreement from the Borrower to the
Initial Lenders and the Agent referring to this Section 5.02(f),
provided that any sale made pursuant to this clause (iv) shall require
the written consent of the Required Lenders unless (I) the Lenders
shall have received a certified copy of a resolution of the board of
directors of the Borrower expressing its determination that the
interest received in consideration for such sale represents fair
value, (II) no amounts are outstanding under this Agreement at the
time of such sale or (III) the net proceeds from such sale exceed the
aggregate amount of Advances, accrued interest and fees outstanding
hereunder at the time of such sale, such net proceeds are made payable
to the Agent's Account and the Borrower has directed the Agent to
apply such net proceeds to the prepayment of such outstanding amounts,
and provided further that, until such prepayment is made, no further
increases in outstanding Advances shall be made and after such
prepayment, no Advances shall be made, unless and until the Required
Lenders approve of the use of the remaining proceeds of such sale
(such approval not to be unreasonably withheld), and (v) sales or
transfers of assets for fair value not otherwise permitted by this
Section 5.02(f) if, at the time such sale or transfer is made, the
amount thereof, together with the amount of all other such sales or
transfers pursuant to this clause (v), does not exceed either (i) 7%
of Consolidated Tangible Net Worth of the Borrower and its
Subsidiaries in any Fiscal Year or (ii) 20% of the Consolidated
Tangible Net Worth of the Borrower and its Subsidiaries since the date
of this Agreement, determined by reference to the financial statements
most recently delivered pursuant to Section 5.01(m).
(g) Dividends, Etc. Declare or make any dividend payment
or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of capital stock
of the Borrower, or purchase, redeem or otherwise acquire for value
(or permit any of its Subsidiaries to do so) any shares of any class
of capital stock of the Borrower or any warrants, rights or options to
acquire any such shares, now or hereafter outstanding, except that, so
long as no Default shall have occurred and be continuing at the time
of any action described below or would result therefrom, the Borrower
may (i) declare and make any dividend payment or other distribution
payable in common stock of the Borrower or in warrants, rights or
options to acquire any capital stock of the Borrower, (ii) purchase,
redeem or otherwise acquire shares of its common stock or warrants,
rights or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its
common stock and (iii) declare or pay cash dividends to its
stockholders and purchase, redeem or otherwise acquire shares of its
capital stock or warrants, rights or options to acquire any such
shares for cash if after giving effect thereto the aggregate amount of
such dividends, purchases, redemptions and acquisitions paid or made
after the date hereof shall not exceed the sum of (A) $20,000,000 plus
(B) 50% of the Consolidated Net Income (if positive) of the Borrower
and its Subsidiaries arising from December 31, 1994 and computed on a
cumulative basis through the end of the fiscal quarter of the Borrower
for which financial statements delivered pursuant to Section 5.01(m)
are available next preceding the date of calculation plus (C) 50% of
the
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aggregate Net Cash Proceeds received from the issuance of capital
stock of the Borrower after the date hereof and (D) 50% of the
aggregate Net Cash Proceeds received from the issuance of any Debt
convertible into capital stock of the Borrower after the date of this
Agreement which Debt has thereafter been converted into capital stock.
(h) Investments in Other Persons. Make or hold, or
permit any of its Subsidiaries, other than NML and Subsidiaries of
NML, to make or hold, any Investment in any Person other than:
(i) Investments by the Borrower and its
Subsidiaries in their Subsidiaries outstanding on the date
hereof and renewals, extensions and refinancings thereof,
additional Investments in Subsidiaries which are Guarantors
without limitation as to amount and additional investments in
non-Guarantor Subsidiaries (other than NML or Subsidiaries of
NML) in an aggregate amount invested from the date hereof not
to exceed $30,000,000 and renewals, extensions and
refinancings thereof;
(ii) Investments in NML solely for purpose of
satisfying the exercise price of bonus options issued by NML
or satisfying a subunderwriting commitment made by the
Borrower with respect thereto in a subunderwriting agreement
between the Borrower and BZW Australia Limited, in an
aggregate amount not to exceed $18 million;
(iii) loans and advances to employees in the
ordinary course of the business of the Borrower and its
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(iv) Investments by the Borrower and its
Subsidiaries in Marketable Securities;
(v) Investments consisting of intercompany Debt
permitted under Section 5.02(d);
(vi) the purchase or acquisition of all or
substantially all of the assets or stock of one or more
Persons by the Borrower or any Guarantor; provided that with
respect to Investments made under this clause (vi): (1) any
newly acquired or created Subsidiary of the Borrower shall be
a Subsidiary at least 90% owned directly by the Borrower; (2)
immediately before and after giving effect thereto, no Default
shall have occurred and be continuing or would result
therefrom; (3) any business acquired or invested in pursuant
to this clause (vi) shall be in a business of the same or
similar nature to one or more of the businesses of the
Borrower as referred to in Section 5.02(i); and (4) no Debt of
such Person shall be assumed by the Borrower or other
Subsidiaries of the Borrower;
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(vii) other Investments by the Borrower or any
Guarantor in an aggregate amount invested not to exceed
$10,000,000; provided that with respect to Investments made
under this clause (vii): (1) immediately before and after
giving effect thereto, no Default shall have occurred and be
continuing or would result therefrom; (2) any business
acquired or invested in pursuant to this clause (vii) shall be
in a business of the same or similar nature to one or more of
the businesses of the Borrower as referred to in Section
5.02(i); and (3) no Debt of such Person shall be assumed by
the Borrower or other Subsidiaries of the Borrower; and
(viii) Investments in accordance with Section
5.02(f)(iv) of the proceeds resulting from the sale of assets
permitted under Section 5.02(f)(iv).
(i) Change in Nature of Business. Make, or permit any of
its Subsidiaries, excluding NML and Subsidiaries of NML, to make, any
material change in the nature of its business as carried on at the
date hereof (i.e., the mining and processing of gold, silver and
copper and the exploration and evaluation of mineral properties).
(j) Prepayments, Etc. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner, or make any payment in violation of any subordination
terms of, any Funded Debt, other than (i) the prepayment of the
Advances in accordance with the terms of this Agreement, (ii)
regularly scheduled or required repayments or redemptions of
Subordinated Debt, or existing Inti Raymi Project Loans, (iii)
conversion of any Debt into capital stock of the Borrower or any
Subsidiary of the Borrower, (iv) prepayments, redemptions or purchases
out of the proceeds received from the issue of capital stock of the
Borrower after the date of this Agreement or the sale of Debt after
the date of this Agreement which Debt has thereafter been converted
into capital stock of the Borrower or (v) payment or prepayment of any
Debt payable to the Borrower; or amend, modify or change in any manner
any term or condition of any Subordinated Debt, or permit any of its
Subsidiaries, other than NML and Subsidiaries of NML, to do any of the
foregoing.
(k) Amendment, Etc. of Related Document. Cancel or
terminate any Related Document or consent to or accept any
cancellation or termination thereof, amend, modify or change in any
manner any term or condition of any Related Document or give any
consent, waiver or approval thereunder, waive any default under or any
breach of any term or condition of any Related Document, agree in any
manner to any other amendment, modification or change of any term or
condition of any Related Document or take any other action in
connection with any Related Document that would, in the case of any of
the foregoing, impair the value of the interest or rights of the
Borrower thereunder or that would impair the rights or interests of
the Agent or any Lender, or permit any of its Subsidiaries to do any
of the foregoing.
(l) Amendment, Etc. of Material Contracts. Cancel or
terminate any Material Contract or consent to or accept any
cancellation or termination thereof,
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amend or otherwise modify any Material Contract or give any consent,
waiver or approval thereunder, waive any default under or breach of
any Material Contract, agree in any manner to any other amendment,
modification or change of any term or condition of any Material
Contract or take any other action in connection with any Material
Contract that would, in the case of any of the foregoing, impair the
value of the interest or rights of the Borrower thereunder in any
manner that would have a Material Adverse Effect or that would impair
the interest or rights of the Agent or any Lender in any material
respect, or permit any of its Subsidiaries, other than NML and
Subsidiaries of NML, to do any of the foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or
permit any of its Subsidiaries, other than NML and Subsidiaries of
NML, to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its
property or assets other than in connection with any Debt permitted by
Section 5.02(d)(i) and (ii) hereof.
(n) Partnerships, Etc.. Become a general partner in any
general or limited partnership or joint venture, or permit any of its
Subsidiaries, other than NML and Subsidiaries of NML, to do so, other
than any Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture.
(o) Speculative Transactions. Engage, or permit any of
its Subsidiaries other than NML and Subsidiaries of NML, to engage in
any transaction involving commodity options or futures contracts or
any similar speculative transactions unless such transaction is
entered into to mitigate risks inherent in its business and qualifies
for hedge accounting treatment in accordance with GAAP.
(p) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures if an Event of Default
could reasonably be expected to result therefrom.
(q) No Restrictions on Subsidiary Distributions to the
Borrower or Other Subsidiaries. Except as provided herein, enter
into, create or otherwise cause or suffer to exist or become
effective, or permit any of its Subsidiaries (other than Project
Subsidiaries and NML and Subsidiaries of NML) to enter into, create or
otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction 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 the Borrower or any other
Subsidiary of the Borrower, (ii) repay or prepay any Debt owed by such
Subsidiary to the Borrower or any other Subsidiary of the Borrower,
(iii) make loans or advances to the Borrower or any other Subsidiary
of the Borrower, or (iv) transfer any of its property or assets to the
Borrower or any other Subsidiary of the Borrower.
(r) Maintenance of Ownership. Except as otherwise
permitted by Section 5.02(f), sell or otherwise dispose of, or commit
to sell or otherwise dispose of, any shares of capital stock of any of
its Material Wholly-Owned Subsidiaries, or permit
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any of its Material Wholly-Owned Subsidiaries to issue, sell or
otherwise dispose of, or commit to issue or otherwise dispose of, any
shares of their capital stock or capital stock of any other
Subsidiary.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Consolidated Net Worth. Maintain at all times, for
the Borrower and its Subsidiaries, a Consolidated Tangible Net Worth
of not less than the sum of (i) $300,000,000 plus (ii) 50% of
cumulative Consolidated Net Income for the period commencing on
January 1, 1995 through the date of determination, if positive, plus
(iii) 50% of the aggregate amount of Net Equity Proceeds received
since December 31, 1994.
(b) Consolidated Leverage Ratio. Maintain, at all times
during each period set forth below, for the Borrower and its
Subsidiaries, a ratio of Consolidated Funded Debt (excluding amounts
thereof due within one year of the date of determination) to the sum
of (i) Consolidated Tangible Net Worth and (ii) Consolidated Funded
Debt (excluding amounts thereof due within one year of the date of
determination) of not greater than the ratio indicated at any time
during any of the periods set forth below:
Year
Ending On Ratio
--------- -----
December 31, 1995 42.5%
December 31, 1996 42.5%
December 31, 1997 42.5%
December 31, 1998 42.5%
December 31, 1999 42.5%
December 31, 2000 42.5%
(c) Adjusted Consolidated Current Ratio. Maintain at
all times a ratio of Adjusted Current Assets to Adjusted Current
Liabilities of the Borrower and its Subsidiaries on a Consolidated
basis of not less than 1 to 1.
(d) Fixed Charge Coverage Ratio. Maintain, during
each period of four consecutive fiscal quarters ending during any of
the periods set forth below, the ratio determined on a Consolidated
basis for the Borrower and its Wholly-Owned Subsidiaries of (A) the
sum of (i) net cash flows from operating activities less (ii)
expenditures for exploration and evaluation costs plus (iii) all
payments received from Inti Raymi by way of dividends, repayment of
Debt or interest accrued on such Debt less (iv) capital expenditures
incurred for the purpose of maintaining and sustaining then existing
operations to (B) the sum of (i) dividends paid to shareholders of the
Borrower's capital stock plus (ii) interest paid to the holders of
Debt, of not less than the ratio set forth below opposite the date on
which such period ends:
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Quarter
Ending On Ratio
--------- -----
December 31, 1995 1.25
March 31, 1996 1.50
June 30, 1996 1.50
September 30, 1996 1.50
December 31, 1996 1.50
March 31, 1997 2.25
June 30, 1997 2.25
September 30, 1997 2.25
December 31, 1997 2.25
March 31, 1998 3.00
June 30, 1998 3.00
September 30, 1998 3.00
December 31, 1998 3.00
March 31, 1999 3.50
June 30, 1999 3.50
September 30, 1999 3.50
December 31, 1999 3.50
March 31, 2000 3.75
June 30, 2000 3.75
September 30, 2000 3.75
December 31, 2000 3.75
(e) Debt to Operating Cash Flow. Maintain, during
each period of four consecutive fiscal quarters ending during any of
the periods set forth below, a ratio determined on a Consolidated
basis for the Borrower and its Wholly-Owned Subsidiaries of (A) Debt
to (B) the sum of (i) net cash flows from operating activities less
(ii) expenditures for exploration and evaluation costs plus (iii) all
payments received from Inti Raymi by the Borrower by way of dividends,
repayment of Debt or interest accrued on such Debt, of not greater
than the amount set forth below opposite the date on which such period
ends:
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Quarter Maximum Debt to
Ending On Operating Cash Flow
--------- -------------------
December 31, 1995 6.00
March 31, 1996 6.00
June 30, 1996 6.00
September 30, 1996 6.00
December 31, 1996 6.00
March 31, 1997 4.50
June 30, 1997 4.50
September 30, 1997 4.50
December 31, 1997 4.50
March 31, 1998 3.25
June 30, 1998 3.25
September 30, 1998 3.25
December 31, 1998 3.25
March 31, 1999 2.75
June 30, 1999 2.75
September 30, 1999 2.75
December 31, 1999 2.75
March 31, 2000 2.50
June 30, 2000 2.50
September 30, 2000 2.50
December 31, 2000 2.50
(f) Total Reserves/Contained Production Ratio.
Maintain, at all times during each period set forth below, a ratio
determined for the Borrower and its Subsidiaries, other than NML and
its Subsidiaries, on an aggregate Attributable Share basis of the
proven and probable contained ounces of gold reserves at the beginning
of each Fiscal Year, adjusted for any acquisitions, sales or other
transfers, write-downs or write- ups of such reserves, to the Annual
Contained Ounces of Production for such period of not less than the
ratio indicated at any time during any of the periods set forth below:
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Quarter Total Reserves/
Ending On Contained Production
--------- --------------------
December 31, 1995 7.00
March 31, 1996 7.00
June 30, 1996 7.00
September 30, 1996 7.00
December 31, 1996 7.00
March 31, 1997 6.00
June 30, 1997 6.00
September 30, 1997 6.00
December 31, 1997 6.00
March 31, 1998 5.25
June 30, 1998 5.25
September 30, 1998 5.25
December 31, 1998 5.25
March 31, 1999 4.50
June 30, 1999 4.50
September 30, 1999 4.50
December 31, 1999 4.50
March 31, 2000 4.50
June 30, 2000 4.50
September 30, 2000 4.50
December 31, 2000 4.50
(g) OECD Category I Reserves/Total Contained
Production Ratio. Maintain, at all times during each period set forth
below, a ratio determined for the Borrower and its Subsidiaries, other
than NML and its Subsidiaries, on an aggregate Attributable Share
basis of the proven and probable contained ounces of gold reserves
located in countries classified in Category I under the country
classifications adopted in the OECD Arrangement on Officially
Supported Export Credits at the beginning of each Fiscal Year,
adjusted for any acquisitions, sales or other transfers, write-downs
or write-ups of such reserves, to the Annual Contained Ounces of
Production for such period of not less than the ratio indicated at any
time during any of the periods set forth below:
OECD Category I
Quarter Reserves
Ending On Contained Production
--------------------
December 31, 1995 2.50
March 31, 1996 2.50
June 30, 1996 2.50
September 30, 1996 2.50
December 31, 1996 2.50
March 31, 1997 2.50
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June 30, 1997 2.50
September 30, 1997 2.50
December 31, 1997 2.50
March 31, 1998 2.40
June 30, 1998 2.40
September 30, 1998 2.40
December 31, 1998 2.40
March 31, 1999 2.20
June 30, 1999 2.20
September 30, 1999 2.20
December 31, 1999 2.20
March 31, 2000 2.00
June 30, 2000 2.00
September 30, 2000 2.00
December 31, 2000 2.00
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance or any Loan Party shall fail to make any other payment under
any Loan Document when the same becomes due and payable; or the
Borrower shall fail to pay any interest on any Advance or make any
other payment of fees or other amounts payable under this Agreement or
any Note within three Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by any Loan Party
(or any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d), (e), (h) or
(m), 5.02 or 5.03, or (ii) any Loan Party shall fail to perform or
observe any other term, covenant or agreement contained in any Loan
Document on its part to be performed or observed if such failure shall
remain unremedied for 30 days after the earlier of the date on which
(A) any officer of any Loan Party becomes aware of such failure or (B)
written notice thereof shall have been given to the Borrower by the
Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries (other than
NML and Subsidiaries of NML) shall fail to pay any principal of or
premium or interest on any Debt that is outstanding in a principal or
notional amount of at least $10,000,000 in the
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aggregate (but excluding Debt outstanding hereunder) of the Borrower
or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to
any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt; or any such Debt shall be declared to be
due and payable, or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated
maturity thereof; or
(e) The Borrower or any of its Material Subsidiaries
shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Borrower or any of
its Material Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any
of its Material Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (e);
or
(f) Any judgment or order for the payment of money in
excess of $5,000,000 shall be rendered against the Borrower or any of
its Subsidiaries (other than NML and Subsidiaries of NML) and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries (other than NML and
Subsidiaries of NML) that would be reasonably expected to have a
Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(h) (i) Any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and
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Exchange Commission under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of Voting Stock of the Borrower (or
other securities convertible into such Voting Stock) representing 20%
or more of the combined voting power of all Voting Stock of the
Borrower; or (ii) during any period of up to 24 consecutive months,
commencing before or after the date of this Agreement, individuals who
at the beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority of the
board of directors of the Borrower; or (iii) any Person or two or more
Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of the
power to exercise, directly or indirectly, a controlling influence
over the management or policies of the Borrower; or
(i) Any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 or 5.01(n) shall for any reason cease
to be valid and binding on or enforceable against any Loan Party party
to it, or any such Loan Party shall so state in writing; or
(j) Any event or action, including, without limitation,
any action by any governmental authority or any Person acting or
purporting to act under governmental authority or any encumbrance or
restriction of any kind or as a result of any contractual agreement
(other than fluctuations in the price of Gold and geologic or
operating conditions at mines owned or operated by Inti Raymi), shall
have occurred or been created or become effective which materially
restricts the ability of Inti Raymi to (i) repay or prepay any Debt
owed by Inti Raymi to the Borrower or (ii) pay dividends or make any
other distributions to the Borrower in amounts that are consistent in
all material respects with the amounts projected by the Borrower in
the projections delivered to the Lenders prior to the date hereof; or
(k) The Borrower or any of its ERISA Affiliates shall
incur, or shall be reasonably likely to incur, liability in excess of
$5,000,000 in the aggregate as a result of one or more of the
following: (i) the occurrence of any ERISA Event; (ii) the partial or
complete withdrawal of the Borrower or any of its ERISA Affiliates
from a Multiemployer Plan; or (iii) the reorganization or termination
of a Multiemployer Plan; or
(l) Any ERISA Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of such
ERISA Event) of the Insufficiency of such Plan and the Insufficiency
of any and all other Plans with respect to which an ERISA Event shall
have occurred and then exist (or the liability of the Borrower and the
ERISA Affiliates related to such ERISA Event) exceeds $5,000,000; or
(m) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that,
when aggregated with all other amounts
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required to be paid to Multiemployer Plans by the Borrower and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $5,000,000 or requires payments exceeding
$1,000,000 per annum; or
(n) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of
the Borrower and the ERISA Affiliates to all Multiemployer Plans that
are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an
amount exceeding $1,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however,
that in the event of an actual or deemed entry of an order for relief with
respect to the Borrower or any Material Subsidiary under the Federal Bankruptcy
Code, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to this Agreement
or applicable law. The Agent agrees to give to each Lender prompt notice of
each notice given to it by the Borrower pursuant to the terms of this
Agreement.
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SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may treat the payee of any Note as the holder thereof until the Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and
may exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from, and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or
own securities of the Borrower or any such Subsidiary, all as if Citibank were
not the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the Agent or
any other Lender and based on the financial statements referred to in Section
4.01 and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify the Agent (to the extent not reimbursed
by the Borrower), ratably according to the respective principal amounts of the
Revolving Credit Notes then held by each
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of them (or if no Revolving Credit Notes are at the time outstanding or if any
Revolving Credit Notes are held by Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent
in any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender (other than the Designated Bidders)
agrees to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
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SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may
be removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Revolving Credit Notes, the Gold Notes or any
Guaranty, nor consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders (other than the Designated Bidders), do any of the
following: (a) waive any of the conditions specified in Section 3.01, or in
the case of the initial Advance, Section 3.02, (b) increase the Commitments of
the Lenders or subject the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the Revolving Credit Notes or any fees or
other amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Revolving Credit Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder or under any other Loan Document, (f) reduce or limit
the obligations of any Guarantor under Section 1 of the Guaranty or otherwise
limit such Guarantor's liability with respect to any obligations owing the
Agent and the Lenders or (g) amend this Section 8.01; and provided further that
no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic or telex communication) and mailed, telecopied,
telegraphed, telexed or delivered, if to the Borrower, at its address at
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000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Treasurer (with
a copy to General Counsel); if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Petroleum,
Metals and Mining Department; or, as to the Borrower or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent.
All such notices and communications shall, when mailed, telecopied, telegraphed
or telexed, be effective when deposited in the mails, telecopied, delivered to
the telegraph company or confirmed by telex answerback, respectively, except
that notices and communications to the Agent pursuant to Article II, III or VII
shall not be effective until received by the Agent. Delivery by telecopier of
an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees
to pay on demand all costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all reasonable due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication and other expenses and (B) the reasonable fees and expenses of
counsel for the Agent with respect thereto and with respect to advising the
Agent as to its rights and responsibilities under this Agreement. The Borrower
further agrees to pay on demand all costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes, the Guaranty and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless
the Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with (i) the Notes,
this Agreement, the other Loan Documents, any of the
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transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances or (ii) the actual or alleged presence of Hazardous Materials
on any property of the Borrower or any of its Subsidiaries or any Environmental
Action relating in any way to the Borrower or any of its Subsidiaries, in each
case whether or not such investigation, litigation or proceeding is brought by
the Borrower, its directors, shareholders or creditors or an Indemnified Party
or any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. The
Borrower also agrees not to assert any claim against the Agent, any Lender, any
of their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance, CD Rate Advance, Gold Advance or LIBO Rate Advance is
made by the Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.08(d), 2.10 or 2.12, acceleration of the
maturity of the Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Advance.
(d) If the Borrower shall for any reason fail to make or
shall notify any Lender that it will be unable to make any payment for the
account of any Lender in respect of any Gold Advance when due hereunder, then
such Lender may take such action as it deems reasonable for the purpose of
protecting such Lender against fluctuations in the price of Gold until such
payment shall be made. The Borrower hereby agrees to indemnify such Lender for
expenses (including, without limitation, reasonable counsel fees and expenses),
damages or losses attributable to the Borrower's default in making any payment
of principal of any Gold Advance when due, including expenses, damages or
losses arising from any action taken pursuant to the first sentence of this
subsection (d) and from any transaction involving the purchase and delivery by
such Lender of Gold or contracts for future delivery thereof in order for such
Lender to fulfill or be in a position to fulfill commitments to third parties
or to hedge such Lender's risks in connection herewith, to the extent such
Lender would have been able to do so if the Borrower had not defaulted. In so
purchasing and delivering Gold or contracts for future delivery thereof, such
Lender may make such purchases on such markets, at such prices, in such
quantities and in such a manner, and may take such delivery arrangements, as it
deems appropriate in its sole discretion without notice to or consultation with
the Borrower, provided that such Lender shall take such action as it deems
reasonable to mitigate damages resulting from such default by the Borrower. A
certificate as to the amount of such damages, losses or expenses, submitted to
the Borrower and the Agent by such Lender, shall be
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conclusive and binding for all purposes, absent manifest error. For purposes
of determining the liability of the Borrower after default by the Borrower in
payment when due (at stated maturity, by acceleration or otherwise) to any
Lender of any Gold Advance, the Borrower agrees to pay to such Lender, at the
option of such Lender the quantity of Gold then due in xxxx ounces or the
greater of the Dollar Equivalent of such quantity (a) on the due date thereof
or (b) on the date such amount is actually paid to such Lender.
(e) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in Sections 2.11, 2.14 and 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender or such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Notes held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Notes and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its Affiliates
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender and its
Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when
it shall have been executed by the Borrower and the Agent and when the Agent
shall have been notified by each Initial Lender that such Initial Lender has
executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than the Designated Bidders) may assign to one or more
Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Revolving Credit Advances owing to it and the Revolving Credit Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under
this Agreement (other than any right to make Competitive Bid Advances,
Competitive Bid Advances owing to it and Competitive Bid Notes), (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's
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rights and obligations under this Agreement, the amount of the Commitment of
the assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall be in a minimum amount equal to the lesser of 10% of all
such rights and obligations or $5,000,000, (iii) each such assignment shall be
to an Eligible Assignee or an Affiliate of such Lender, (iv) each such
assignment to an Eligible Assignee (other than an Affiliate of such Lender) or
to any Affiliate of such Lender that is not an Eligible Assignee shall be
subject to the consent of the Agent and the Borrower, which consent shall not
be unreasonably withheld, and (v) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Revolving Credit Note
and the Gold Note subject to such assignment and a processing and recordation
fee of $3,000. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender hereunder and (y)
the Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or any other Loan Document or any other instrument or document
provided pursuant hereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Document
or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
of its Subsidiaries or the performance or observance by the Borrower or any of
its Subsidiaries of any of its obligations under this Agreement or any other
Loan Document or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon
the Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Loan Documents
as are delegated to the Agent by the terms hereof, together with such powers
and discretion as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of
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the obligations that by the terms of this Agreement are required to be
performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it is an
Eligible Assignee, together with any Revolving Credit Note or Notes or Gold
Note or Notes subject to such assignment, the Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. Within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Agent in
exchange for the surrendered Revolving Credit Note or Gold Note, as the case
may be, a new Note to the order of such Eligible Assignee in an amount equal to
the Commitment assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Lender has retained a Commitment hereunder, a new Revolving
Credit Note or Gold Note, as the case may be, to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Revolving Credit Note or Notes or Gold Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Revolving Credit Note or Notes or Gold Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(d) Each Lender (other than the Designated Bidders) may
designate one or more banks or other entities to have a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03; provided,
however, that (i) no such Lender shall be entitled to make more than three such
designations, (ii) each such Lender making one or more of such designations
shall retain the right to make Competitive Bid Advances as a Lender pursuant to
Section 2.03, (iii) each such designation shall be to a Designated Bidder and
(iv) the parties to each such designation shall execute and deliver to the
Agent, for its acceptance and recording in the Register, a Designation
Agreement. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Designation Agreement, the designee
thereunder shall be a party hereto with a right to make Competitive Bid
Advances as a Lender pursuant to Section 2.03 and the obligations related
thereto.
(e) By executing and delivering a Designation Agreement,
the Lender making the designation thereunder and its designee thereunder
confirm and agree with each other and the other parties hereto as follows: (i)
such Lender makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or any other instrument or document furnished
pursuant hereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any of its Subsidiaries or the performance or observance by
the Borrower or any of its Subsidiaries of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such designee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other
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documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Designation Agreement; (iv) such
designee will, independently and without reliance upon the Agent, such
designating Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
designee confirms that it is a Designated Bidder; (vi) such designee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such designee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed
by a designating Lender and a designee representing that it is a Designated
Bidder, the Agent shall, if such Designation Agreement has been completed and
is substantially in the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(g) The Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance and each Designation
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and, with respect to Lenders other than
Designated Bidders, the Commitment of, and principal amount of the Advances
owing to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the 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 the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(h) Each Lender may sell participations to one or more
banks or other entities (other than the Borrower or any of its Affiliates) in
or to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it); provided, however, that
(i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrower,
the Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Notes or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation.
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(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee
or participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and,
as contemplated by Section 8.07(i), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any
law, rule or regulation or judicial process, (c) to any rating agency when
required by it, provided that, prior to any such disclosure, such rating agency
shall undertake to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender and (d) as requested
or required by any state, federal or foreign authority or examiner regulating
banks or banking.
SECTION 8.09. Releases of Guarantee Obligations.
Notwithstanding anything contained herein to the contrary, upon request of the
Borrower the Agent shall (without any notice to or vote or consent of any
Lender) take action having the effect of releasing any guarantee obligations
provided for in any Guaranty to the extent that the relevant Guarantor
thereunder (a) is no longer a Material Subsidiary or (b) is no longer an
Additional Designated Guarantor; provided however, that no guarantee
obligations of any Person shall be released due to such Person's ceasing to be
a Wholly-Owned Subsidiary.
SECTION 8.10. Governing Law. This Agreement and the Notes
shall be governed by the laws of the State of New York.
SECTION 8.11. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
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SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York
State court or, to the extent permitted by law, in such federal court. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes or any other Loan
Document in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the Notes or any other Loan Document in any New York State or federal court.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 8.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges that are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
lawful rate (the "Maximum Rate") that may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable on the Advances of such Lender, together with all Charges
payable to such Lender, shall be limited to the Maximum Rate. Neither the
Borrower nor any current or future guarantors, endorsers, or other parties
hereafter becoming liable for payment of the obligations of the Borrower under
the Loan Documents shall ever be liable for unearned interest thereon or shall
ever be required to pay interest thereon in excess of the maximum amount that
may be lawfully charged under applicable law from time to time in effect, and
the provisions of this Section 8.13 shall control over all other provisions of
the Loan Documents that may be in conflict or apparent conflict herewith. If
(a) the maturity of the obligations of the Borrower under the Loan Documents is
accelerated for any reason, (b) any of such obligations are prepaid and as a
result any amounts held to constitute interest are determined to be in excess
of the legal maximum or (c) any Lender or any other holder of any or all of the
obligations of the Borrower under the Loan Documents shall otherwise collect
moneys that are determined to constitute interest that would otherwise increase
the interest on any or all of such obligations to an amount in excess of that
permitted to be charged by applicable law then in effect, then all such sums
determined to constitute interest in excess of such legal limit shall, without
penalty, be promptly applied to reduce the then outstanding principal of such
obligations or, at such Lender's or such holder's option, promptly returned to
the Borrower or the other payor thereof upon such determination. In
determining whether the interest paid or payable under any specific
circumstance exceeds the maximum amount, the Lenders shall to the fullest
extent permitted under applicable law,
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(a) characterize any non-principal payment as an expense, fee or premium rather
than as interest, (b) exclude voluntary prepayments and the effects thereof and
(c) amortize, prorate, allocate, and spread the total amount of interest
throughout the entire contemplated term of the obligations of the Borrower
under the Loan Documents in accordance with amounts outstanding from time to
time thereunder and the maximum legal rate of interest from time to time in
effect under applicable law in order to lawfully charge the maximum amount of
interest permitted under applicable law.
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SECTION 8.14. Waiver of Jury Trial. Each of the Borrower,
the Agent and the Lenders hereby irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or any
other Loan Document or the actions of the Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BATTLE MOUNTAIN GOLD COMPANY
By /s/ X. X. X'Xxxxxxx
------------------------------------
Title: V.P. Finance & CFO
CITIBANK, N.A.
as Agent
By /s/ Xxxxxx Xxxxxx
------------------------------------
Title: Assistant Vice President
Initial Lenders
---------------
Commitment
----------
$15,000,000 CITIBANK, N.A.
By /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Assistant Vice President
$15,000,000 BANK OF MONTREAL
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Title: Director, Mining & Metals
$ 9,000,000 THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
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$12,000,000 THE BANK OF NOVA SCOTIA
By /s/ X. Xxxxxxx
------------------------------------
Title: Senior Manager Finance &
Administration
$15,000,000 CIBC INC.
By /s/ Xxxx Xxxxxxx
------------------------------------
Title: Vice President
$ 9,000,000 FIRST INTERSTATE BANK OF TEXAS
By /s/ Xxxxx Xxxx
------------------------------------
Title: Banking Officer
$75,000,000 Total of the Commitments
89
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$ ________________ Dated: ___________, 199__
FOR VALUE RECEIVED, the undersigned, BATTLE MOUNTAIN GOLD
COMPANY, a Nevada corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of__________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
Credit Agreement dated as of November ___, 1995 among the Borrower, the Lender
and certain other lenders parties thereto, and Citibank, N.A., as Agent for the
Lender and such other lenders (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at _____________________,
_____________________, ________________, in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note; provided, that the
failure of the Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, (i) provides for the making of Revolving
Credit Advances (other than Gold Advances) by the Lender to the Borrower from
time to time in an aggregate amount not to exceed at any time outstanding the
U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Revolving Credit Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by the laws of the
State of New York.
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BATTLE MOUNTAIN GOLD COMPANY
By
---------------------------------
Title:
91
ADVANCES AND PAYMENTS OF PRINCIPAL
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AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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92
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated:____________, 199__
FOR VALUE RECEIVED, the undersigned, BATTLE MOUNTAIN GOLD
COMPANY, a Nevada corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of ___________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Credit Agreement dated as of
November __, 1995 among the Borrower, the Lender and certain other lenders
parties thereto, and Citibank, N.A., as Agent for the Lender and such other
lenders (as amended or modified from time to time, the "Credit Agreement"; the
terms defined therein being used herein as therein defined)), on ____________,
199__, the principal amount of U.S.$__________________.
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in full,
at the interest rate and payable on the interest payment date or dates provided
below:
Interest Rate: ____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Interest payment date:__________________
Both principal and interest are payable in lawful money of the
United States of America to __________________ for the account of the Lender at
the office of ___________________________, at _____________________ in same day
funds.
This Promissory Note is one of the Competitive Bid Notes
referred to in, and is entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
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This Promissory Note shall be governed by the laws of the
State of New York.
BATTLE MOUNTAIN GOLD COMPANY
By
---------------------------
Title:
94
EXHIBIT A-3 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
FOR GOLD ADVANCES
Dated:________________, 199__
FOR VALUE RECEIVED, the undersigned, BATTLE MOUNTAIN GOLD
COMPANY, a Nevada corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of ______________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the aggregate principal amount of the Revolving
Credit Advances consisting of Gold Advances made by the Lender to the Borrower
pursuant to the Credit Agreement dated as of November __, 1995 among the
Borrower, the Lender and certain other lenders parties thereto, and Citibank,
N.A., as Agent for the Lender and such other lenders (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance consisting of Gold Advances from the
date of such Revolving Credit Advance until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in
the Credit Agreement.
Principal is payable in Gold to Citibank, N.A., as Agent, at
the location specified in the Credit Agreement. Interest is payable in lawful
money of the United States of America to Citibank, N.A., as Agent, at
_____________________________, ______________, _____________, in same day funds.
Each Revolving Credit Advance consisting of Gold Advances owing to the Lender
by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note; provided, that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This Promissory Note is one of the Gold Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances
consisting of Gold Advances by the Lender to the Borrower from time to time in
an aggregate amount not to exceed at any time outstanding the amount first
above mentioned, the indebtedness of the Borrower resulting from each such
Revolving Credit Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by the laws of the
State of New York.
95
2
BATTLE MOUNTAIN GOLD COMPANY
By
-----------------------------------
Title:
96
ADVANCES AND PAYMENTS OF PRINCIPAL
===============================================================================================================
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
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97
EXHIBIT E
GUARANTY
Dated November __, 1995
From
[NAME OF GUARANTOR]
as Guarantor
in favor of
THE LENDERS REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
98
TABLE OF CONTENTS
Section Page
1. Guaranty; Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Waivers and Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Payments Free and Clear of Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . . . 4
6. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
11. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. Continuing Guaranty; Assignments under
the Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. Governing Law; Jurisdiction; Waiver of
Jury Trial, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
99
GUARANTY
GUARANTY dated as of November 6, 1995 made by
__________________, a _____________ corporation (the "Guarantor"), in favor of
the Lenders (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT. The Lenders and Citibank, N.A., as
Agent for the Lenders, are parties to a Credit Agreement dated as of November
__, 1995 (said Agreement, 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 Battle Mountain Gold Company, a Nevada corporation (the
"Borrower"). The Guarantor may receive a portion of the proceeds of the
Advances under the Credit Agreement and will derive substantial direct and
indirect benefit from the transactions contemplated by the Credit Agreement.
It is a condition precedent to the making of Advances that the Guarantor
shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to make Advances from time to time, the Guarantor hereby
agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) The
Guarantor hereby absolutely, unconditionally and irrevocably guarantees the
punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of the Borrower now or hereafter existing under
the Loan Documents, whether for principal, interest, fees, expenses or
otherwise (such obligations being the "Guaranteed Obligations"), and agrees to
pay any and all expenses (including counsel fees and expenses) incurred by the
Agent or any Lender in enforcing any rights under this Guaranty. Without
limiting the generality of the foregoing, the Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by the Borrower to the Agent or any Lender under the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Borrower.
(b) The liability of the Guarantor under this Guaranty
shall not exceed the greater of (i) the net benefit realized by the Guarantor
from the proceeds of the Advances made from time to time by the Borrower to the
Guarantor or any Subsidiary of the Guarantor and (ii) the greater of (x) 95% of
the Adjusted Net Assets of the Guarantor on the date of delivery hereof and (y)
95% of the Adjusted Net Assets of the Guarantor on the date of any payment
hereunder. "Adjusted Net Assets" of the Guarantor at any date means the lesser
of (x) the amount by which the fair value of the property of the Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities, but excluding liabilities under this Guaranty, of the
Guarantor at such date and (y) the amount by which the present fair salable
value of the assets of the Guarantor at such date exceeds the amount that
100
2
will be required to pay the probable liability of the Guarantor on its debts,
excluding debt in respect of this Guaranty, as they become absolute and
matured.
Section 2. Guaranty Absolute. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
the Loan Documents, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. The obligations of the Guarantor
under this Guaranty are independent of the Guaranteed Obligations or any other
obligations of any other Loan Party under the Loan Documents, and a separate
action or actions may be brought and prosecuted against the Guarantor to enforce
this Guaranty, irrespective of whether any action is brought against the
Borrower or any other Loan Party or whether the Borrower or any other Loan Party
is joined in any such action or actions. The liability of the Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of,
and the Guarantor hereby irrevocably waives any defenses it may now or hereafter
have in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed Obligations
or any other obligations of any other Loan Party under the Loan
Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Borrower or any of its Subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of
any collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any other Loan
Party under the Loan Documents or any other assets of the Borrower or
any of its Subsidiaries;
(e) any change, restructuring or termination of the
corporate structure or existence of the Borrower or any of its
Subsidiaries;
(f) any failure of any Lender to disclose to the Borrower
or the Guarantor any information relating to the financial condition,
operations, properties or reasonably foreseeable prospects of any
other Loan Party now or in the future known
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3
to any Lender (the Guarantor waiving any duty on the part of the
Lenders to disclose such information); or
(g) any other circumstance (including, without
limitation, any statute of limitations) or any existence of or
reliance on any representation by the Agent or any Lender that might
otherwise constitute a defense available to, or a discharge of, the
Borrower, the Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Lender or any other Person upon
the insolvency, bankruptcy or reorganization of the Borrower or any other Loan
Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor
hereby waives promptness, diligence, presentment, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this
Guaranty and any requirement that the Agent or any Lender exhaust any right or
take any action against the Borrower or any other Person.
(b) The Guarantor hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(c) The Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor will not exercise any
rights that it may now have or hereafter acquire against the Borrower or any
other insider guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's obligations under this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or any Lender against the
Borrower or any other insider guarantor, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower or any other
insider guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall have been paid in full in cash
and the Commitments shall have expired or terminated. If any amount shall be
paid to the Guarantor in violation of the preceding sentence at any time prior
to the later of the payment in full in
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4
cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty and the Termination Date, such amount shall be held in trust for the
benefit of the Agent and the Lenders and shall forthwith be paid to the Agent
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or other amounts payable under this Guaranty
thereafter arising. If (i) the Guarantor shall make payment to the Agent or any
Lender of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
be paid in full in cash and (iii) the Termination Date shall have occurred, the
Agent and the Lenders will, at the Guarantor's request and expense, execute and
deliver to the Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation
to the Guarantor of an interest in the Guaranteed Obligations resulting from
such payment by the Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any and
all payments made by the Guarantor hereunder shall be made, in accordance with
Section 2.14 of the Credit Agreement, free and clear of and without deduction
for any and all present or future Taxes. If the Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder to the
Agent or any Lender, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable
to additional sums payable under this Section) the Agent or such Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Guarantor shall make such deductions and
(iii) the Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Guarantor agrees to pay any present
or future Other Taxes.
(c) The Guarantor will indemnify the Agent and each
Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section) paid by the Agent or such Lender (as the case may
be) and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date the Agent or such Lender (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes
by or on behalf of the Guarantor, the Guarantor will furnish to the Agent, at
its address referred to in the Credit Agreement, the original receipt of
payment thereof or a certified copy of such receipt. In the case of any payment
hereunder by or on behalf of the Guarantor through an account or branch outside
the United States or on behalf of the Guarantor by a payor that is not a United
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5
States person, if the Guarantor determines that no Taxes are payable in respect
thereof, the Guarantor shall furnish or shall cause such payor to furnish, to
the Agent, at such address, an opinion of counsel acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender that is not a citizen or resident of the
United States or any state thereof, a corporation, partnership, or other entity
created or organized in or under the laws of the United States, or an estate or
trust that is subject to federal income taxation regardless of source of its
income, on or prior to the date of its execution and delivery of the Credit
Agreement in the case of each Initial Lender, and on the date of the Assignment
and Acceptance or other agreement pursuant to which it became a Lender in the
case of each other Lender, and from time to time thereafter upon the reasonable
request in writing by the Guarantor (but only so long thereafter as such Lender
remains lawfully able to do so), provide the Agent and the Guarantor with
Internal Revenue Service Form 1001 or 4224, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, or, in the case of a
Lender claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Internal Revenue Code with respect to payments of
"portfolio interest," a Form W-8, or any successor or other form prescribed by
the Internal Revenue Code (and, if such Lender delivers a Form W-8, an annual
certificate representing that (i) such Lender is not a "bank" for purposes of
Section 881(c) of the Internal Revenue Code (and is not subject to regulatory
or other legal requirements as a bank in any jurisdiction, and has not been
treated as a bank in any filing with or submission made to any government or
rating agency), (ii) is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Internal Revenue Code) of the Guarantor and (iii)
is not a controlled foreign corporation related to the Guarantor (within the
meaning of Section 864(d)(4) of the Internal Revenue Code)), along with such
other additional forms or certificates as the Guarantor or the Agent may
reasonably request, certifying that such Lender is exempt from or is entitled
to a reduced rate of United States withholding tax on payments under the Credit
Agreement or the Notes. If the form provided by a Lender at the time such
Lender first becomes a party to the Credit Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to the Credit Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender assignee on such
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date. If any form or document referred to in this subsection (e) and requested
by the Guarantor pursuant to this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form 1001
or 4224, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Guarantor and shall not be obligated to
include in such form or document such confidential information.
(f) For any period with respect to which a Lender has
failed to provide the Guarantor following the Guarantor's request therefor
pursuant to subsection (e) above with the appropriate form or certificate (or
failed to provide substantially all of the information required by such form or
certificate) described in subsection (e) (other than if such failure is due to
a change in law occurring after the date on which a form originally was required
to be provided), such Lender shall not be entitled to indemnification under
subsection (a) or (c) with respect to Taxes imposed by the United States;
provided, however, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Guarantor shall take such
steps as such Lender shall reasonably request to assist such Lender to recover
such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 5 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) Without prejudice to the survival of any other
agreement of the Guarantor hereunder or under any other Loan Document, the
agreements and obligations of the Guarantor contained in this Section 5 shall
survive the payment in full of the Guaranteed Obligations and all other amounts
payable under this Guaranty.
Section 6. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
(a) Each representation and warranty made by the Borrower
in Article IV of the Credit Agreement with respect to the Guarantor is
true and correct.
(b) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or waived.
(c) The Guarantor has, independently and without reliance
upon the Agent or any Lender and based on such documents and
information as it has deemed
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appropriate, made its own credit analysis and decision to enter into
this Guaranty, and the Guarantor has established adequate means of
obtaining from any other Loan Parties on a continuing basis
information pertaining to, and is now and on a continuing basis will
be completely familiar with, the financial condition, operations,
properties and reasonably foreseeable prospects of such other Loan
Parties.
Section 7. Amendments, Etc. No amendment or waiver of any
provision of this Guaranty and no consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Agent and the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders, (a) limit
the liability of the Guarantor hereunder, (b) postpone any date fixed for
payment hereunder or (c) change the number of Lenders required to take any
action hereunder.
Section 8. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
to it, if to the Guarantor, addressed to it at __________________________,
Attention: ________________________, if to the Agent or any Lender, at its
address specified in the Credit Agreement, or as to any party at such other
address as shall be designated by such party in a written notice to each other
party. All such notices and other communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier or confirmed by
telex answerback, respectively.
Section 9. No Waiver: Remedies. No failure on the part of the
Agent or any Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
Section 10. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 of the Credit
Agreement to authorize the Agent to declare the Notes due and payable pursuant
to the provisions of said Section 6.01, each Lender and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender or such Affiliate to or for
the credit or the account of the Guarantor against any and all of the
obligations of the Guarantor now or hereafter existing under this Guaranty,
whether or not such Lender shall have made any demand under this Guaranty and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the
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8
Guarantor after any such set-off and application; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its respective Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its respective
Affiliates may have.
Section 11. Indemnification. Without limitation on any other
obligations of the Guarantor or remedies of the Lenders under this Guaranty,
the Guarantor shall, to the fullest extent permitted by law, indemnify, defend
and save and hold harmless each Lender from and against, and shall pay on
demand, any and all losses, liabilities, damages, costs, expenses and charges
(including the fees and disbursements of such Lender's legal counsel) suffered
or incurred by such Lender as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their terms. Without
prejudice to the survival of any other agreement of the Guarantor hereunder or
under any other Loan Document, the agreements and obligations of the Guarantor
contained in this Section 11 shall survive the payment in full of the
Guaranteed Obligations and all other amounts payable under this Guaranty.
Section 12. Continuing Guaranty; Assignments Under the Credit
Agreement. This Guaranty is a continuing guaranty and shall, subject to Section
2, (a) remain in full force and effect until the later of the payment in full
in cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty and the Termination Date, (b) be binding upon the Guarantor, its
successors and assigns and (c) inure to the benefit of and be enforceable by
the Agent and the Lenders and their successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer all or any portion of its rights and obligations
under the Credit Agreement (including, without limitation, all or any portion
of its Commitment, the Advances owing to it and the Note or Notes held by it)
to any other Person, and such other Person shall thereupon become vested with
all the benefits in respect thereof granted to such Lender herein or otherwise,
in each case as and to the extent provided in Section 8.07 of the Credit
Agreement.
Section 13. Governing Law; Jurisdiction; Waiver of Jury Trial,
Etc. (a) This Guaranty shall be governed by the laws of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and the Guarantor hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and
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determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Guarantor agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Guaranty shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Guaranty or any of the
other Loan Documents to which it is or is to be a party in the courts of any
jurisdiction.
(c) The Guarantor irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party in any New York State or federal
court. The Guarantor hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(d) The Guarantor hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the transactions contemplated thereby or the actions of the Agent or
any Lender in the negotiation, administration, performance or enforcement
thereof.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
[NAME OF GUARANTOR]
By
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Title:
