EXHIBIT 10.1
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JULY 14, 1998
AMONG
HOMESTAKE MINING COMPANY,
a Delaware corporation, as Guarantor,
HOMESTAKE MINING COMPANY OF CALIFORNIA,
a California corporation, as U.S. Borrower,
HOMESTAKE CANADA INC.,
an Ontario corporation, as Canadian Borrower,
HOMESTAKE GOLD OF AUSTRALIA LIMITED,
a South Australian corporation,
and
PLUTONIC RESOURCES LIMITED,
a New South Wales corporation,
as Australian Borrowers,
THE LENDERS LISTED HEREIN,
as Lenders,
THE CHASE MANHATTAN BANK OF CANADA,
as Canadian Administrative Agent,
CHASE SECURITIES AUSTRALIA LIMITED,
as Australian Administrative Agent,
CHASE SECURITIES INC.,
as Arranger,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
DEUTSCHE BANK A.G.,
as Documentation Agent
HOMESTAKE MINING COMPANY
HOMESTAKE MINING COMPANY OF CALIFORNIA
HOMESTAKE CANADA INC.
HOMESTAKE GOLD OF AUSTRALIA LIMITED
PLUTONIC RESOURCES LIMITED
AMENDED AND RESTATED CREDIT AGREEMENT
TABLE OF CONTENTS
Page
Section 1. DEFINITIONS...........................................................................................2
1.1 Certain Defined Terms....................................................................................2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement......................33
1.3 Other Definitional Provisions...........................................................................33
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS...........................................................34
2.1 Commitments; Loans......................................................................................34
2.2 Interest on the Loans...................................................................................42
2.3 Fees....................................................................................................47
2.4 Prepayments and Reductions in Commitments; General Provisions Regarding Payments........................47
2.5 Use of Proceeds.........................................................................................52
2.6 Special Provisions Governing Eurodollar Rate Loans, Bank Bill Swap Rate Loans and Gold Loans............52
2.7 Letters of Credit.......................................................................................56
2.8 Bankers' Acceptances....................................................................................63
Section 3. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND LOANS,..................................................66
3.1 Conditions to Effectiveness.............................................................................66
3.2 Conditions to All Loans.................................................................................71
3.3 Conditions to All Letters of Credit.....................................................................72
3.4 Conditions to All Bankers' Acceptances..................................................................72
Section 4. REPRESENTATIONS AND WARRANTIES.......................................................................73
4.1 Organization, Powers, Qualification, Good Standing, Business and Subsidiaries...........................73
4.2 Authorization of Borrowing and Guaranty, etc............................................................74
4.3 Valid Issuance of Stock.................................................................................75
4.5 Financial Condition.....................................................................................75
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4.6 No Material Adverse Effect; No Restricted Junior Payments...............................................76
4.7 Title to Properties; Liens..............................................................................76
4.8 Litigation; Adverse Facts...............................................................................76
4.9 Payment of Taxes........................................................................................77
4.10 Performance of Agreements; Materially Adverse Agreements................................................77
4.11 Governmental Regulation.................................................................................77
4.12 Securities Activities...................................................................................77
4.13 Employee Benefit Plans..................................................................................77
4.14 Certain Fees............................................................................................78
4.15 Environmental Protection................................................................................78
4.16 Employee Matters........................................................................................78
4.17 Solvency................................................................................................78
4.18 Compliance with Laws....................................................................................78
4.19 Disclosure..............................................................................................79
Section 5. AFFIRMATIVE COVENANTS................................................................................79
5.1 Financial Statements and Other Reports..................................................................79
5.2 Corporate Existence, etc................................................................................82
5.3 Payment of Taxes and Claims; Tax Consolidation..........................................................82
5.4 Maintenance of Properties; Insurance....................................................................83
5.5 Inspection; Lender Meeting; Reports of Subsidiaries.....................................................83
5.6 Compliance with Laws, etc...............................................................................83
5.7 Environmental Disclosure and Inspection.................................................................84
5.8 Company's Remedial Action Regarding Hazardous Materials.................................................84
5.9 Further Assurances......................................................................................85
5.10 Year 2000 Compliance....................................................................................85
Section6. NEGATIVE COVENANTS....................................................................................85
6.1 Indebtedness............................................................................................85
6.2 Liens and Related Matters...............................................................................87
6.3 Investments; Joint Ventures.............................................................................88
6.4 Contingent Obligations..................................................................................89
6.5 Restricted Junior Payments..............................................................................90
6.6 Financial Covenants.....................................................................................91
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6.7 Restriction on Fundamental Changes; Asset Sales; Certain Asset Transfers................................91
6.8 Transactions with Shareholders and Affiliates...........................................................92
6.9 Disposal of Material Subsidiary Stock...................................................................92
6.10 Conduct of Business.....................................................................................93
6.11 Prepayments and Amendments to Subordinated Indebtedness.................................................93
Section7.EVENTS OF DEFAULT 93
7.1 Failure to Make Payments When Due.......................................................................93
7.2 Default in Other Agreements.............................................................................94
7.3 Breach of Certain Covenants.............................................................................94
7.4 Breach of Warranty......................................................................................94
7.5 Other Defaults Under Loan Documents.....................................................................94
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc....................................................94
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc......................................................95
7.8 Judgments and Attachments...............................................................................96
7.9 Dissolution.............................................................................................96
7.10 Employee Benefit Plans..................................................................................96
7.11 Change in Control of Borrowers..........................................................................96
Section 8. GUARANTIES OF COMPANY AND U.S. BORROWER OF...........................................................98
8.1 Guaranty by Company.....................................................................................98
8.2 Guaranty by U.S. Borrower..............................................................................101
Section9. AGENTS...............................................................................................105
9.1 Appointment............................................................................................105
9.2 Powers; General Immunity...............................................................................105
9.3 Representations and Warranties; No Responsibility For Appraisal of Creditworthiness....................107
9.4 Right to Indemnity.....................................................................................107
9.5 Registered Persons Treated as Owners...................................................................108
9.6 Successor Agents.......................................................................................108
Section10. MISCELLANEOUS.......................................................................................108
10.1 Assignments of and Participations in Commitments, Loans and Letters of Credit..........................108
10.2 Expenses...............................................................................................112
10.3 Indemnity..............................................................................................112
10.4 Set Off................................................................................................113
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10.5 Ratable Sharing........................................................................................114
10.6 Amendments and Waivers.................................................................................114
10.7 Increased Costs; Taxes; Capital Adequacy...............................................................115
10.8 Lenders' Obligation to Mitigate; Replacement of Lender.................................................118
10.9 Independence of Covenants..............................................................................119
10.10 Notices................................................................................................119
10.11 Survival of Representations, Warranties and Agreements.................................................119
10.12 Failure or Indulgence Not Waiver; Remedies Cumulative..................................................120
10.13 Marshalling; Payments Set Aside........................................................................120
10.14 Severability...........................................................................................120
10.15 Obligations Several; Independent Nature of Lenders' Rights.............................................120
10.16 Headings...............................................................................................121
10.17 Applicable Law.........................................................................................121
10.18 Successors and Assigns.................................................................................121
10.19 Consent to Jurisdiction and Service of Process.........................................................121
10.20 Waiver of Jury Trial...................................................................................122
10.21 Confidentiality........................................................................................122
10.22 Entire Agreement.......................................................................................123
10.23 Counterparts; Effectiveness............................................................................123
10.24 Judgment Currency......................................................................................123
10.25 Change in Control......................................................................................124
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SCHEDULES
(Note: Schedules not included in electronic filing.)
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
4.1 LIST OF SUBSIDIARIES
4.5 CONTINGENT OBLIGATIONS AND FORWARD COMMITMENTS
4.8 LITIGATION
4.10 CERTAIN DEFAULTS
4.13 CERTAIN EMPLOYEE BENEFIT PLANS
6.1 EXISTING INDEBTEDNESS
6.2 CERTAIN EXISTING LIENS
6.3 EXISTING INVESTMENTS
6.4 EXISTING CONTINGENT OBLIGATIONS
6.8 TRANSACTIONS WITH AFFILIATES
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III-A FORM OF DRAFT
III-B FORM OF DRAWING NOTICE
IV-A FORM OF CANADIAN BORROWER NOTE
IV-B FORM OF HGAL NOTE
IV-C FORM OF PLUTONIC NOTE
IV-D FORM OF U.S. BORROWER NOTE
V FORM OF GRID GOLD ACKNOWLEDGEMENT
VI FORM OF COMPLIANCE CERTIFICATE
VII-A FORM OF OPINION OF THELEN, MARRIN, JOHNSON & BRIDGES
VII-B FORM OF OPINION OF WAYNE KIRK, ESQ.
VIII-A FORM OF OPINION OF OSLER, HOSKIN & HARCOURT
VIII-B FORM OF OPINION OF MALLESONS STEPHEN JAQUES
IX FORM OF OPINION OF O'MELVENY & MYERS
X-A FORM OF ASSIGNMENT AND ACCEPTANCE (CANADIAN LENDER)
X-B FORM OF ASSIGNMENT AND ACCEPTANCE (U.S. LENDER)
X-C FORM OF ASSIGNMENT AND ACCEPTANCE (AUSTRALIAN LENDER)
XI FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
XII FORM OF SUBORDINATION PROVISIONS
XIII FORM OF NOTICE OF ALLOCATION
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HOMESTAKE MINING COMPANY
HOMESTAKE MINING COMPANY OF CALIFORNIA
HOMESTAKE CANADA INC.
HOMESTAKE GOLD OF AUSTRALIA LIMITED
PLUTONIC RESOURCES LIMITED
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is dated as of July
14, 1998 and entered into by and among HOMESTAKE MINING COMPANY, a Delaware
corporation ("Company"), HOMESTAKE MINING COMPANY OF CALIFORNIA, a California
corporation ("U.S. Borrower"), HOMESTAKE CANADA INC., an Ontario corporation
("Canadian Borrower"), HOMESTAKE GOLD OF AUSTRALIA LIMITED, ACN 008 143 137, a
South Australia corporation ("HGAL"), PLUTONIC RESOURCES LIMITED, ACN 006 245
629, a New South Wales corporation ("Plutonic"; and collectively with HGAL,
"Australian Borrowers"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES HEREOF (each individually referred to herein as a "Lender" and
collectively as "Lenders"), THE CHASE MANHATTAN BANK OF CANADA, as Canadian
Administrative Agent for Lenders ("Canadian Administrative Agent"), CHASE
SECURITIES AUSTRALIA LIMITED, ACN 002 888 011, as Australian Administrative
Agent for Lenders ("Australian Administrative Agent"), CHASE SECURITIES INC., as
Arranger ("Arranger"), THE CHASE MANHATTAN BANK, as Administrative Agent for
Lenders ("Administrative Agent") and DEUTSCHE BANK A.G., as Documentation Agent
("Documentation Agent"). Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in subsection 1.1 of this
Agreement.
R E C I T A L S
WHEREAS, pursuant to that certain Credit Agreement dated as of
September 20, 1996 (the "Existing Credit Agreement") among Company, U.S.
Borrower, Canadian Borrower, HGAL, the lenders listed on the signature pages
thereof ("Existing Lenders"), Canadian Administrative Agent, Australian
Administrative Agent, Administrative Agent and Canadian Imperial Bank of
Commerce, as documentation agent, Existing Lenders have made certain credit
facilities available to U.S. Borrower, Canadian Borrower, and HGAL in accordance
with the terms thereof; and
WHEREAS, Company, U.S. Borrower, Canadian Borrower and HGAL
desire to refinance the Existing Credit Agreement and, among other things, add
Plutonic as an Australian Borrower and increase the aggregate Overall
Commitments of all Lenders to $400,000,000; and
WHEREAS, for ease of reference and clarity, the parties to the
Existing Credit Agreement desire to restate the Existing Credit Agreement to
incorporate the amendments which were made prior to the date hereof by and among
the parties to the Existing Credit Agreement and
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the additional amendments which are made hereby, and to amend and restate the
promissory notes issued by U.S. Borrower, Canadian Borrower and HGAL pursuant to
the Existing Credit Agreement (the "Existing Promissory Notes"); and
WHEREAS, the parties to the Existing Credit Agreement and the
parties hereto expressly disclaim any intent to effect a novation or an
extinguishment or discharge of the obligations under the Loan Documents as a
result of entering into this Agreement and the other documents as contemplated
herein, but merely intend to amend and restate such obligations.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Company, Borrowers, Lenders, Agents and Arranger agree as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the
following meanings:
"Adjusted Eurodollar Rate" means, for any Interest Rate
Determination Date with respect to a Eurodollar Rate Loan, the rate obtained by
dividing (i) the Eurodollar Rate on such Interest Rate Determination Date by
(ii) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable generally to any member bank
of the Federal Reserve System in respect of "Eurocurrency liabilities" as
defined in Regulation D (or any successor category of liabilities under
Regulation D). The Administrative Agent shall determine the Adjusted Eurodollar
Rate and such determination shall be conclusive absent manifest error.
"Administrative Agent" means Chase and any successor thereto
appointed pursuant to subsection 9.6.
"Affected Lender" has the meaning assigned to that term in
subsection 2.6C.
"Affected Loans" has the meaning assigned to that term in
subsection 2.6C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
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"Agent" or "Agents" means Administrative Agent and/or Canadian
Administrative Agent and/or Australian Administrative Agent and/or Documentation
Agent, or any of them.
"Agreement" means this Amended and Restated Credit Agreement,
dated as of July 14, 1998, as it may be amended, restated, supplemented or
otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of one percent) equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" means the rate of
interest per annum publicly announced from time to time by Administrative Agent
as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is publicly
announced as being effective. "Base CD Rate" means the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. "Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected by it.
"Federal Funds Effective Rate" means, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by Administrative Agent
from three Federal funds brokers of recognized standing selected by it. If for
any reason Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate or both for any reason, including the
inability of Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) or (c), or both, of the first sentence of this definition,
as appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate, respectively.
If any U.S. Base Rate Loans are outstanding, Administrative Agent will give to
U.S. Borrower notice of any such changes promptly after the Alternate Base Rate
changes; provided, however, that the failure to
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give such notice shall not limit or otherwise affect the obligations of Company
or any Borrower under this Agreement or any other Loan Document.
As to any loan, the Prime Rate and the Alternate Base Rate are
reference rates that vary from time to time and do not necessarily represent the
lowest or best rate actually charged to any customer by Administrative Agent or
any U.S. Lender for loans denominated in Dollars. Administrative Agent and U.S.
Lenders may make commercial loans or other loans denominated in Dollars at rates
of interest at, above or below the Prime Rate or the Alternate Base Rate. The
Alternate Base Rate shall automatically change upon any date that Administrative
Agent announces any change in its applicable prime rate or determines that the
interest rates set forth in clauses (b) and (c) in the first sentence of this
definition have changed, to the extent necessary to reflect any such change.
"Applicable Administrative Agent" means (i) Administrative
Agent in the case of U.S. Loans or U.S. Letters of Credit, (ii) Canadian
Administrative Agent in the case of Canadian Loans, Canadian Letters of Credit
or Bankers' Acceptances and (iii) Australian Administrative Agent in the case of
Australian Loans or Australian Letters of Credit.
"Applicable Margin" means, with respect to any Loan or
Bankers' Acceptance, the applicable percentage set forth below based upon the
actual or stated senior implied ratings established by S&P and Moody's,
respectively, applicable on such date to the senior, unsecured, non-credit
enhanced, long-term Indebtedness for borrowed money of Company (or, if no actual
or stated senior implied ratings are in effect, the ratings one category higher
than the actual ratings for subordinated, unsecured, non-credit enhanced
long-term Indebtedness for borrowed money of Company):
Category S&P/Moody's Rating Percentage
1 BBB+/Baa1 0.40%
or above
2 BBB/Baa2 0.50%
3 BBB-/Baa3 0.625%
4 BB+/Ba1 0.875%
5 BB/Ba2 1.00%
6 BB-/Ba3 or below 1.125%
For purposes of the foregoing, (i) if neither Moody's nor S&P
shall have in effect a rating for the senior or subordinated, unsecured,
non-credit enhanced, long-term Indebtedness for borrowed money of Company (other
than by reason of the circumstances referred to in the last sentence of this
definition), then the Applicable Margin shall be based on Category 6; (ii) if
only one of Moody's and S&P shall have in effect a rating for the senior or
subordinated, unsecured, non-credit enhanced, long-term Indebtedness for
borrowed money of Company, then the
4
Applicable Margin shall be determined on the basis of such rating; (iii) if the
ratings established or deemed to have been established by Moody's or S&P for the
senior or subordinated, unsecured, long-term Indebtedness for borrowed money of
Company shall fall within different Categories, the Applicable Margin shall be
based on the Category corresponding to the lower rating (higher percentage); and
(iv) if any rating established or deemed to have been established by Moody's or
S&P shall be changed (other than as a result of a change in the rating system of
Moody's or S&P), such change shall be effective as of the date on which it is
first announced by the applicable rating agency. Each change in the Applicable
Margin shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. If the rating system of Moody's or S&P shall change, or if any
such rating agency shall cease to be in the business of rating corporate debt
obligations, Company and Lenders shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect such changed rating
system or the non-availability of ratings from such rating agency, and pending
the effectiveness of any such amendment, the ratings of such rating agency most
recently in effect prior to such change or cessation shall be employed in
determining the Applicable Margin.
"Arranger" has the meaning assigned to that term in the
introductory paragraph of this Agreement.
"Assessment Rate" means for any date the annual rate (rounded
upwards, if necessary, to the next .01%) most recently estimated by
Administrative Agent as the then-current net annual assessment rate that will be
employed in determining amounts payable by Administrative Agent to the Federal
Deposit Insurance Corporation (or any successor) for such date for insurance by
the Federal Deposit Insurance Corporation (or such successor) of time deposits
made in Dollars at Administrative Agent's domestic offices.
"Asset Sale" means the sale by Company or any of its
Subsidiaries to any Person other than Company or any of its Subsidiaries of (i)
any of the stock of any of Company's Subsidiaries, (ii) substantially all of the
assets of any division or line of business of Company or any of its
Subsidiaries, or (iii) any other assets (whether tangible or intangible and
including intercompany Indebtedness) of Company or any of its Subsidiaries
outside of the ordinary course of business; provided that (i) any sale of
surplus assets (including land and mineral interests but excluding intercompany
Indebtedness) not being used in the day-to-day conduct of Company's principal
businesses or worn or obsolete equipment in the ordinary course of business or
assets sold in the ordinary course of business in connection with the routine
replacement of fixed or capital assets; (ii) any disposition of Company's
interest in the oil and gas and sulphur business and any assets used in such
businesses and not in Company's principal businesses; or (iii) any sale of
Company's or any of its Subsidiaries' interest in Lachlan Resources N.L. shall
not be deemed to be an "Asset Sale."
"Assignment and Acceptance" means an Assignment and Acceptance
entered into by a Lender and an Eligible Assignee, and accepted by Agents, in
substantially the form of Exhibit X-A, Exhibit X-B, or Exhibit X-C annexed
hereto, as applicable.
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"Australian Administrative Agent" means Chase Securities
Australia Limited, ACN 002 888 011, a company incorporated with limited
liability in the Australian Capital Territory, Australia, and any successor
thereto appointed pursuant to subsection 9.6.
"Australian Allocation" means the portion of the Overall
Commitments allocated to Australian Borrowers in Schedule 2.1 or in the most
recent Notice of Allocation delivered by Borrowers and Company pursuant to
subsection 2.1A.
"Australian Borrowers" has the meaning assigned to that term
in the introduction of this Agreement.
"Australian Commitment" means the commitment of each
Australian Lender (i) to make or maintain Australian Loans pursuant to
subsection 2.1A, and (ii) to issue (in the case of the applicable Issuing
Lender) or acquire risk participations (in the case of all other Australian
Lenders) in Australian Letters of Credit pursuant to subsection 2.7 in an
aggregate amount, valued in Dollar Equivalents, at no time exceeding such
Australian Lender's Pro Rata Share of the Australian Allocation.
"Australian Commitment Usage" means, as of any date of
determination, the aggregate outstanding principal amount of (i) the Australian
Loans denominated in Dollars, and (ii) the Australian Loans denominated in
Australian Dollars (but valued in Dollar Equivalents as of such date of
determination), and (iii) the Australian Letter of Credit Usage.
"Australian Dollar Loans" means Loans denominated in and
advanced to Australian Borrowers in Australian Dollars.
"Australian Dollars" or "A$" means the lawful money of
Australia.
"Australian Exposure" means, with respect to any Australian
Lender as of any date of determination, the Australian Lender Allocation of such
Australian Lender or, if the Overall Commitments have been terminated, the sum
of (a) the aggregate outstanding principal amount of all Australian Loans
(valued in Dollar Equivalents as of such date of determination) of that
Australian Lender plus (b) in the event such Australian Lender (or a Lender in
its Lending Unit) is an Issuing Lender, the aggregate Letter of Credit Usage in
respect of all Australian Letters of Credit issued by such Australian Lender (or
such Lender in that Lending Unit) (in each case net of any participations
purchased by other Australian Lenders in such Australian Letters of Credit or
any unreimbursed drawings thereunder (valued in Dollar Equivalents as of such
date of determination)) plus (c) the aggregate amount of all participations
purchased by that Australian Lender in any outstanding Australian Letters of
Credit or any unreimbursed drawings under any Australian Letter of Credit
(valued in Dollar Equivalents as of such date of determination).
"Australian Lender Allocation" means, with respect to any
Australian Lender, the portion of the Australian Allocation allocated to such
Australian Lender.
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"Australian Lender Pro Rata Share" means, with respect to any
Australian Lender, the percentage obtained by dividing the Australian Exposure
of such Australian Lender by the aggregate Australian Exposure of all Australian
Lenders.
"Australian Lenders" means each of the Lenders, if any, of
each Lending Unit that is designated as the Australian Lender for such Lending
Unit on the signature pages hereof, or in any applicable Assignment and
Acceptance.
"Australian Lending Office" means, in relation to any
Australian Lender, its Sydney, Melbourne or Canberra Australian lending office
as specified under its signature on the signature pages hereof or such other
office as is specified by such Lender in a written notice to Administrative
Agent, Australian Administrative Agent, and Australian Borrowers.
"Australian Letter of Credit" or "Australian Letters of
Credit" means Standby Letters of Credit issued, or deemed issued, by the
applicable Issuing Lender for the account of Australian Borrowers pursuant to
subsection 2.7.
"Australian Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount (in Dollar
Equivalents) which is available for drawing under all Australian Letters of
Credit then outstanding plus (ii) the aggregate amount (in Dollar Equivalents)
of all drawings under all Australian Letters of Credit honored by the applicable
Issuing Lender and not theretofore reimbursed by Australian Borrowers.
"Australian Loans" means the Australian Dollar Loans and/or
Dollar Loans made by Australian Lenders to Australian Borrowers pursuant to
subsection 2.1A(ii).
"Authorized Signor" means, in the case of any Australian
Borrower, the Treasurer or the Assistant Treasurer of Company.
"BA Discount Rate" means, in respect of a Bankers' Acceptance,
the rate quoted by Canadian Administrative Agent at or about 10:00 a.m.
(Toronto, Canada time) on the date of acceptance of such Bankers' Acceptance
(based on a year of 365 days), as the discount rate at which it would purchase
on such date its own bankers' acceptances having terms similar to the terms of
such Bankers' Acceptance.
"BA Facility" means the bankers' acceptance facility
established under subsection 2.8.
"BA Fee" means, in respect of a Bankers' Acceptance, a
stamping fee calculated on the Face Amount and maturity of such Bankers'
Acceptance at a rate per annum equal to the Applicable Margin, payable on the
date of creation of such Bankers' Acceptance, calculated on the basis of a year
of 365 days.
"BA Usage" means, as at any date of determination, the
aggregate Face Amount (in Dollar Equivalents) of all Bankers' Acceptances
created by Canadian Lenders pursuant to subsection 2.8 which have not been
repaid by Canadian Borrower, whether or not due and
7
whether or not held by any Lender. For purposes of this definition, any Bankers'
Acceptance which has been cash collateralized in full in a manner satisfactory
to Canadian Administrative Agent shall not be deemed to be outstanding.
"Bank Bill Swap Rate" means, in relation to each Interest
Period with respect to any Bank Bill Swap Rate Loan, the rate per cent per annum
which is: (a) the average bid rate (rounded upwards, if necessary, to the
nearest four decimal places) for Bills accepted by a bank having a tenor which
is closest to that Interest Period and published on the "BBSY" reference page of
the Reuters Monitor System at or about 10:30 a.m. (Sydney time) on the first day
of that Interest Period and (b) if on that day that rate is not published by
10:30 a.m. (Sydney time), the rate determined by the Australian Administrative
Agent in good faith to be the average of the buying rates being generally quoted
in the market at or about that time to the Agent by each of not less than three
institutions chosen by the Australian Administrative Agent which ordinarily
display rates on that page at or about that time as being the rates generally
quoted by them for the purchase of Bills accepted by an Australian bank for an
amount equal to that Bank Bill Swap Rate Loan on that day having a tenor which
is closest to that Interest Period.
"Bank Bill Swap Rate Loan" means Australian Dollar Loans made
by Australian Lenders pursuant to subsection 2.1A(ii) and bearing interest at
rates determined by reference to the Bank Bill Swap Rate as provided in
subsection 2.2A.
"Bankers' Acceptance" means a Draft that has been accepted by
a Canadian Lender as provided in subsection 2.8.
"Bankers' Acceptance Purchase Price" means, in respect of any
Bankers' Acceptance to be purchased by a Canadian Lender, the result (rounded to
the nearest whole cent, with one-half of one cent being rounded up) obtained by
dividing the Face Amount of such Bankers' Acceptance by the sum of one plus the
product of (x) the applicable BA Discount Rate multiplied by (y) a fraction, the
numerator of which is the term of maturity of such Bankers' Acceptance and the
denominator of which is 365.
"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", the Bankruptcy and Insolvency Act (Canada), Part 5 of the
Corporations Law (Australia) or any similar statute of U.S., Canadian,
Australian or other laws as now and hereafter in effect, or any successor
statute.
"Base Rate Loans" means Loans that bear interest at a floating
rate of interest, which shall be either the Canadian Base Rate, in the case of
Canadian Dollar Loans, or the Alternate Base Rate or U.S. Base Rate (Canada), as
applicable, in the case of Dollar Loans.
"Bills" has the same meaning as in the Bills of Exchange Act
1909 and a reference to the drawing or acceptance or endorsement of, or other
dealing with, a Bill is to be interpreted in accordance with that act.
"Board" means the Board of Governors of the Federal Reserve
System of the United States, together with its successors.
8
"Borrower" or "Borrowers" means U.S. Borrower and/or Canadian
Borrower and/or Australian Borrowers.
"Business Day" means (i) for all purposes other than as
covered by clauses (ii), (iii), (iv) and (v) below, any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the State of New
York or is a day on which banking institutions located in such state are
authorized or required by law or other governmental action to close, (ii) with
respect to all notices, determinations, fundings and payments in connection with
Canadian Loans, Canadian Letters of Credit and Bankers' Acceptances, any day
that is a Business Day described in clause (i) above which is not a legal
holiday under the laws of the Provinces of Ontario and British Columbia, Canada
or a day on which banking institutions located in such Provinces are authorized
or required by law or other governmental action to close, (iii) with respect to
all notices, determinations, fundings and payments in connection with Australian
Loans and Australian Letters of Credit, any day that is a Business Day described
in clause (i) above which is not a Saturday, Sunday or public holiday in Sydney,
Melbourne and Perth, Australia, (iv) with respect to all notices,
determinations, fundings and payments in connection with the Eurodollar Rate or
any Eurodollar Rate Loans, any day that is a Business Day described in clause
(i) above and that is also a day for trading by and between banks in Dollar
deposits in the applicable interbank Eurodollar market, and (v) with respect to
all notices, determinations, fundings and payments in connection with Gold
Loans, any day that is a Business Day described in clause (i) above and that is
also a day upon which the Price of Gold is fixed by the London Bullion Market
Association.
"Canadian Administrative Agent" means Chase Canada and any
successor thereto appointed pursuant to subsection 9.6.
"Canadian Allocation" means the portion of the Overall
Commitments allocated to Canadian Borrower in Schedule 2.1 or in the most recent
Notice of Allocation delivered by Borrowers and Company pursuant to subsection
2.1A.
"Canadian Base Rate" means, with respect to any Canadian
Dollar Loan as of any date of determination, the greater of (A) the fluctuating
interest rate per annum which Canadian Administrative Agent has announced as its
reference rate for determining interest chargeable by it on loans denominated in
Canadian Dollars made in Canada, as in effect on such date of determination, and
(B) the BA Discount Rate for such day for bankers' acceptances having a term of
30 days plus 0.625%. As to any loan, the Canadian Base Rate is a reference rate
that varies from time to time and does not necessarily represent the lowest or
best rate actually charged to any customer by Canadian Administrative Agent or
any Canadian Lender for loans denominated in Canadian Dollars. Canadian
Administrative Agent and Canadian Lenders may make commercial loans or other
loans denominated in Canadian Dollars at rates of interest at, above or below
the Canadian Base Rate. The Canadian Base Rate shall automatically change,
without notice to Company or any Borrower, upon any date that Canadian
Administrative Agent announces any change in said reference rate or determines
that the prevailing BA Discount Rate for 30-day bankers' acceptances has changed
to the extent necessary to reflect any such change. If any Canadian Base Rate
Loans are outstanding, Canadian Administrative Agent will give
9
Canadian Borrower notice of any such change promptly after the Canadian Base
Rate changes; provided, however, that the failure to give such notice shall not
limit or otherwise affect the obligations of Company or any Borrower under this
Agreement or any other Loan Document.
"Canadian Base Rate Loans" means Canadian Dollar Loans made by
Canadian Lenders pursuant to subsection 2.1A(i) and bearing interest at rates
determined by reference to the Canadian Base Rate as provided in subsection
2.2A.
"Canadian Borrower" has the meaning assigned to that term in
the introduction of this Agreement, and includes any successor by merger or
amalgamation, provided that any such successor is otherwise in compliance with
this Agreement.
"Canadian Commitment" means the commitment of each Canadian
Lender (i) to make or maintain Canadian Loans pursuant to subsection 2.1A, (ii)
to issue (in the case of the applicable Issuing Lender) or acquire risk
participations (in the case of all other Canadian Lenders) in Canadian Letters
of Credit pursuant to subsection 2.7, and (iii) to create and purchase Bankers'
Acceptances pursuant to subsection 2.8 in an aggregate amount, valued in Dollar
Equivalents, at no time exceeding such Canadian Lender's Pro Rata Share of the
Canadian Allocation.
"Canadian Commitment Usage" means, as of any date of
determination, the aggregate outstanding principal amount of (i) the Canadian
Loans denominated in Dollars, (ii) the Canadian Loans denominated in Canadian
Dollars (valued in Dollar Equivalents as of such date of determination), (iii)
the Canadian Letter of Credit Usage, and (iv) the BA Usage.
"Canadian Dollar Loans" means Loans denominated in and
advanced to Canadian Borrower in Canadian Dollars.
"Canadian Dollars" or "Cdn.$" means the lawful money of
Canada.
"Canadian Exposure" means with respect to any Canadian Lender
as of any date of determination, the Canadian Lender Allocation of such Canadian
Lender or, if the Overall Commitments have been terminated, the sum of (a) the
aggregate outstanding principal amount of all Canadian Loans (valued in Dollar
Equivalents as of such date of determination) of that Canadian Lender plus (b)
in the event such Canadian Lender (or a Lender in its Lending Unit) is an
Issuing Lender, the aggregate Letter of Credit Usage in respect of all Canadian
Letters of Credit issued by such Canadian Lender (or such Lender in that Lending
Unit) (in each case net of any participations purchased by other Canadian
Lenders in such Canadian Letters of Credit or any unreimbursed drawings
thereunder (valued in Dollar Equivalents as of such date of determination)) plus
(c) the aggregate amount of all participations purchased by that Canadian Lender
in any outstanding Canadian Letters of Credit or any unreimbursed drawings under
any Canadian Letter of Credit (valued in Dollar Equivalents as of such date of
determination) plus (d) the BA Usage of that Canadian Lender.
"Canadian Lender Allocation" means, with respect to any
Canadian Lender, the portion of the Canadian Allocation allocated to such
Canadian Lender.
10
"Canadian Lender Pro Rata Share" means, with respect to any
Canadian Lender, the percentage obtained by dividing the Canadian Exposure of
such Canadian Lender by the aggregate Canadian Exposure of all Canadian Lenders.
"Canadian Lenders" means each of the Lenders, if any, of each
Lending Unit, that is designated as the Canadian Lender for such Lending Unit on
the signature pages hereof, or in any applicable Assignment and Acceptance.
"Canadian Lending Office" means, in relation to any Canadian
Lender, its Canadian lending office as specified under its signature on the
signature pages hereof or such other office as is specified by such Lender in a
written notice to Administrative Agent, Canadian Administrative Agent and
Canadian Borrower.
"Canadian Letter of Credit" or "Canadian Letters of Credit"
means Standby Letters of Credit issued, or deemed issued, by the applicable
Issuing Lender for the account of Canadian Borrower pursuant to subsection 2.7.
"Canadian Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount (in Dollar
Equivalents) which is available for drawing under all Canadian Letters of Credit
then outstanding plus (ii) the aggregate amount (in Dollar Equivalents) of all
drawings under all Canadian Letters of Credit honored by the applicable Issuing
Lender and not theretofore reimbursed by Canadian Borrower.
"Canadian Loans" means the Canadian Dollar Loans and/or Dollar
Loans made by Canadian Lenders to Canadian Borrower pursuant to subsection
2.1A(i).
"Capital Lease", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is or should be accounted for as an asset, with a
corresponding liability, on the balance sheet of that Person.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Chase" means The Chase Manhattan Bank.
"Chase Canada" means The Chase Manhattan Bank of Canada, a
bank named in Schedule II to the Bank Act (Canada).
"Commitment" means commitments of the Lender(s) of each
Lending Unit to make Canadian Loans (if such Lending Unit includes a Canadian
Lender), to make U.S. Loans, to make Australian Loans (if such Lending Unit
includes an Australian Lender), to participate in Letters of Credit, and, in the
case of the Canadian Lender (if any), to create and purchase Bankers Acceptances
in an aggregate amount for each Lending Unit as set forth on Schedule 2.1, as
such amount may be adjusted from time to time pursuant to the provisions of this
Agreement.
11
"Commitment Fee Percentage" means on any date the applicable
percentage set forth below based upon the actual or stated senior implied
ratings established by S&P and Moody's, respectively, applicable on such date to
the senior, unsecured, non-credit enhanced, long-term Indebtedness for borrowed
money of Company (or, if no actual or stated senior implied ratings are in
effect, the ratings one category higher than the ratings for subordinated,
unsecured, non-credit enhanced long-term Indebtedness for borrowed money of
Company`):
Category S&P/Moody's Rating Percentage
-------- ------------------ ----------
1 BBB+/Baa1 or above 0.15%
2 BBB/Baa2 0.1875%
3 BBB-/Baa3 0.20%
4 BB+/Ba1 0.25%
5 BB/Ba2 0.30%
6 BB-/Ba3 or below 0.35%
For purposes of the foregoing, (i) if neither Moody's nor S&P
shall have in effect a rating for the senior or subordinated, unsecured,
non-credit enhanced, long-term Indebtedness for borrowed money of Company (other
than by reason of the circumstances referred to in the last sentence of this
definition), then the Commitment Fee Percentage shall be based on Category 6;
(ii) if only one of Moody's and S&P shall have in effect a rating for senior or
subordinated, unsecured, non-credit enhanced, long-term Indebtedness for
borrowed money of Company, then the Commitment Fee Percentage shall be
determined on the basis of such rating; (iii) if the ratings established or
deemed to have been established by Moody's or S&P for the senior or
subordinated, unsecured, non-credit enhanced, long-term Indebtedness for
borrowed money of Company shall fall within different Categories, the Commitment
Fee Percentage shall be based on the Category corresponding to the lower rating
(higher percentage); and (iv) if any rating established or deemed to have been
established by Moody's or S&P shall be changed (other than as a result of a
change in the rating system of Moody's or S&P), such change shall be effective
as of the date on which it is first announced by the applicable rating agency.
Each change in the Commitment Fee Percentage shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Moody's or S&P shall change, or if either of such rating agencies
shall cease to be in the business of rating corporate debt obligations, Company
and Lenders shall negotiate in good faith to amend the references to specific
ratings in this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency, and pending the
effectiveness of any such amendment, the ratings of such rating agency most
recently in effect prior to such change or cessation shall be employed in
determining the Commitment Fee Percentage.
"Commitment Termination Date" means July 14, 2003.
12
"Commitment Usage means, as applicable, a Lending Unit's
Australian Commitment Usage, Canadian Commitment Usage, or U.S. Commitment
Usage.
"Company" has the meaning assigned to that term in the
introduction to this Agreement.
"Company Change of Control" has the meaning assigned to that
term in subsection 10.25A.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit VI annexed hereto delivered to Lenders by Company and
Borrowers pursuant to subsection 5.1(iii).
"Consolidated EBITDA" means, for any period, without
duplication, the sum of the amounts for such period of (i) Consolidated Net
Income, (ii) Consolidated Interest Expense, (iii) total depreciation and
amortization expense and (iv) all non-cash writedowns (other than writedowns
that constitute advance recognition of future cash expenditures) reflected in
Consolidated Net Income after December 31, 1997, as reported in Company's
consolidated statement of earnings in conformity with GAAP.
"Consolidated Interest Expense" means, for any period, total
interest expense without deduction of any interest income received by Company
and its Subsidiaries for such period as reported in Company's consolidated
statement of earnings in conformity with GAAP.
"Consolidated Net Income" means, for any period, the net
income (or loss) of Company and its Subsidiaries before any income and mining
taxes and minority interest adjustments on a consolidated basis, as reported in
Company's consolidated statement of earnings in conformity with GAAP.
"Consolidated Net Worth" means, as at any date of
determination, the shareholder's equity of Company and its Subsidiaries plus the
amount of all non-cash writedowns (other than items that constitute advance
recognition of future cash expenditures) made after December 31, 1997, as
reported in Company's consolidated balance sheet in conformity with GAAP.
"Consolidated Total Debt" means, as at any date of
determination, the aggregate amount of all Indebtedness of Company and its
Subsidiaries plus (without duplication) the aggregate amount of all Contingent
Obligations of Company and its Subsidiaries (other than Contingent Obligations
in the form of guarantees, letters of credit and surety bonds, in each case
securing reclamation and other performance obligations in the ordinary course of
business); provided that the obligations (contingent or otherwise) of Company or
any of its Subsidiaries under any Interest Rate Protection Agreement, Currency
Protection Agreement, or any option, forward sales contract or futures contract
designed to protect Company and its Subsidiaries from fluctuations in interest
rates, currency values or the Price of Gold shall be valued collectively on a
net aggregate mark to market basis where a net aggregate mark to market value
for all obligations under such Interest Rate Protection Agreements, Currency
Protection Agreements, options and
13
contracts greater than zero shall not be deducted from the sum of the aggregate
amounts of Indebtedness and Contingent Obligation used to calculate Consolidated
Total Debt and a net aggregate mark to market value for all obligations under
such Interest Rate Protection Agreements, Currency Protection Agreements,
options and contracts of less than zero shall be added to the sum of the
aggregate amounts of Indebtedness and Contingent Obligations to calculate
Consolidated Total Debt. Notwithstanding the foregoing, no aggregate
mark-to-market loss is to be included as Consolidated Total Debt to the extent
it has been included in the calculation of Consolidated Net Worth and principal
and interest payable in respect of the Subordinated Debentures shall not be
included in the calculation of Consolidated Net Worth if such Subordinated
Debentures shall have become irrevocably defeased in a manner satisfactory to
Administrative Agent.
"Contingent Obligation", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Interest Rate Protection Agreements, Currency
Protection Agreements and options, forward sales contracts and futures contracts
designed to protect Company and its Subsidiaries from fluctuations in interest
rates, currency values or the Price of Gold. Contingent Obligations shall
include, without limitation, (a) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other party or parties
to an agreement, and (c) any liability of such Person for the obligation of
another through any agreement (contingent or otherwise) (X) to purchase,
repurchase or otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation (whether in the
form of loans, advances, stock purchases, capital contributions or otherwise) or
(Y) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under
subclauses (X) or (Y) of this sentence, the primary purpose or intent thereof is
as described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise
supported or, if less, the amount to which such Contingent Obligation is
specifically limited.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject. "Contractual Obligations" shall
include the Subordinated Debentures and the New Subordinated Indebtedness.
"Covered Tax" means any Tax that is not an Excluded Tax.
14
"Currency Protection Agreement" means any foreign exchange
contract, currency swap agreement, futures contract, option contract or other
similar agreement or arrangement designed to protect Company or any of its
Subsidiaries against fluctuations in currency values.
"Date of Determination" means each date on which a Notice of
Borrowing or Notice of Conversion/Continuation is given, and the date of any
acceleration of the Obligations.
"Delivered" or "Delivery" to a particular party means that
such party receiving Gold hereunder has received confirmation from the bullion
depository designated hereunder by such party that it is holding Gold for such
party's account in an allocated or unallocated account.
"Deposit Account" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Dollar Equivalents" means (i) with respect to the amount of
any Loan funded in Canadian Dollars or with respect to the aggregate amount
which is available for drawing, or which is drawn under, any Canadian Letter of
Credit denominated in Canadian Dollars or the Face Amount of any Bankers'
Acceptances, the amount of Dollars which is equivalent to such amount of
Canadian Dollars determined at the rate of exchange quoted by The Bank of Canada
at 12:00 Noon (New York time) on the most recent Date of Determination for the
spot purchase in the foreign exchange market of Dollars with an equivalent
amount of Canadian Dollars, (ii) with respect to the amount of any Loan funded
in Australian Dollars or with respect to the aggregate amount which is available
for drawing, or which is drawn under, any Australian Letter of Credit
denominated in Australian Dollars, the amount of Dollars which is equivalent to
such amount of Australian Dollars determined at the spot rate calculated by the
Australian Administrative Agent as the "United States Dollar hedge settlement
rate (vs. Australian Dollars)" that appears on the HSRA page on the Reuters
Screen under the heading "US Dollar hedge settlement rate" (or any page that can
reasonably be considered a replacement page) at 9:45 A.M. (Sydney time) on the
most recent Date of Determination for the spot purchase in the foreign exchange
market of Dollars with an equivalent amount of Australian Dollars or (iii) with
respect to the amount of any Loan funded in Gold, the amount in Dollars which is
the product of the number of Ounces of Gold comprising such Loan multiplied by
the Price of Gold as in effect on the most recent Date of Determination.
"Dollar Loans" means Loans denominated and advanced to any
Borrower in Dollars.
"Dollars" and the sign "$" mean the lawful money of the United
States of America.
"Draft" means, at any time, a bill of exchange in
substantially the form of Exhibit III-A annexed hereto, or in substantially the
form customarily used by the applicable Canadian Lender, in each case drawn by
Canadian Borrower on a Canadian Lender and bearing such distinguishing letters
and numbers as such Canadian Lender may determine, but which at such
15
time, except as otherwise provided herein, has not been accepted by such
Canadian Lender as a Bankers' Acceptance.
"Drawing Date" means any Business Day fixed pursuant to
subsection 2.8 for the creation of Bankers' Acceptances.
"Drawing Notice" has the meaning assigned to that term in
subsection 2.8B.
"Deutsche Bank" means Deutsche Bank AG.
"Effective Date" means the date on or before July 14, 1998 on
which the conditions set forth in subsection 3.1 are satisfied or waived.
"Eligible Assignee" means (A)(i) a commercial bank or trust
company organized under the laws of the United States or any state thereof; (ii)
a savings and loan association or savings bank organized under the laws of the
United States or any state thereof; (iii) a commercial bank or trust company
organized under the laws of any other country or a political subdivision
thereof; provided that (x) such bank or trust company is acting through a branch
or agency located in the United States or (y) such bank or trust company is
organized under the laws of a country that is a member of the Organization for
Economic Cooperation and Development or a political subdivision of such country;
and (iv) any other entity which is an "accredited investor" (as defined in
Regulation D under the Securities Act) which extends credit or buys loans funded
in Dollars, Canadian Dollars, Australian Dollars and Gold as one of its
businesses, in each case (under clauses (i) through (iv) above) that is
reasonably acceptable to the Applicable Administrative Agent and Administrative
Agent; and (B) any Lender and any Affiliate of any Lender; provided that no
Affiliate of Company shall be an Eligible Assignee; and provided further that
such Eligible Assignee must have at the time of determination unimpaired capital
and surplus of not less than $100,000,000.
"Employee Benefit Plan" means any "employee benefit plan" as
defined in Section 3(3) of ERISA that is subject to Title I of ERISA (a) that
is, or was within the past six years, maintained or contributed to by Company or
any of its ERISA Affiliates and (b) with respect to which Company or any of its
ERISA Affiliates retains any liability.
"Environmental Claim" means any notice of violation, claim,
demand, abatement order or other order or direction (conditional or otherwise)
by any governmental authority or any Person for any damage, including, without
limitation, personal injury (including sickness, disease or death), tangible or
intangible property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restrictions, in
each case relating to, resulting from or in connection with Hazardous Materials
and relating to Company, any of its Subsidiaries, any Affiliates of Company or
any Facility.
"Environmental Laws" means all statutes, ordinances, orders,
rules, regulations or decrees relating to (i) environmental matters, including,
without limitation, those relating to fines, injunctions, penalties, damages,
contribution, cost recovery compensation, losses or injuries
16
resulting from the Release or threatened Release of Hazardous Materials, (ii)
the generation, use, storage, transportation or disposal of Hazardous Materials,
or (iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner applicable
to Company or any of its Subsidiaries or any or their respective properties.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate", as applied to any Person, means (i) any
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning
of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above is a member.
"ERISA Event" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation); (ii) the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
material required installment under Section 412(m) of the Internal Revenue Code
with respect to any Pension Plan or the failure to make any material required
contribution to a Multiemployer Plan; (iii) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in Section
4041(c) of ERISA; (iv) the withdrawal by Company or any of its ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in material liability pursuant to Sections
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
would reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan;
(vi) the imposition of material liability on Company or any of its ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the complete or partial
withdrawal by Company or any of its ERISA Affiliates (within the meaning of
Sections 4203 and 4205 of ERISA) from any Multiemployer Plan, or the receipt by
Company or any of its ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A or
4042 of ERISA, in any such case if such event would reasonably be expected to
result in material liability to Company or its ERISA Affiliates; (viii) the
occurrence of an act or omission which could give rise to the imposition on
Company or any of its ERISA Affiliates of material fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or under Section
409 or 502(c), (i) or (l) or 4071 of ERISA in respect of any Employee Benefit
Plan; (ix) the assertion of a material claim (other than routine claims for
benefits) against any
17
Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or
against Company or any of its ERISA Affiliates in connection with any such
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Rate" means, for any Interest Rate Determination
Date with respect to a Eurodollar Rate Loan, the rate (expressed as a percentage
per annum) which is the arithmetic mean (rounded upwards, if necessary, to the
next 1/16 of one percent) of the offered rates for Dollar deposits for a period
equal to the Interest Period for such Eurodollar Rate Loan that appears on the
LIBO page on the Reuters Screen (or any page that can reasonably be considered a
replacement page) at approximately 11:00 a.m., London time, on such Interest
Rate Determination Date. If the rate set forth above is not available on the
Reuters Screen, such rate shall be the rate (rounded upwards, if necessary, to
the next 1/16 of one percent) equal to the arithmetic mean of the respective
rates per annum at which Dollar deposits approximately equal in principal amount
to such Eurodollar Rate Loan and for a maturity comparable to such Interest
Period are offered in immediately available funds to the London branches of the
Reference Lenders in the London interbank market at approximately 11:00 a.m.,
London time, on such Interest Rate Determination Date. The Administrative Agent
shall determine the Eurodollar Rate and such determination shall be conclusive
absent manifest error.
"Eurodollar Rate Loans" means Dollar Loans bearing interest at
rates determined by reference to the Adjusted Eurodollar Rate or the Eurodollar
Rate, as the case may be, as provided in subsection 2.2A.
"Event of Default" means each of the events set forth in
Section 7.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Excluded Tax" means any of the following taxes, levies,
imposts, duties, deductions, withholdings or charges, and all liabilities with
respect thereto: taxes (without regard to whether such taxes are collected by
withholding or otherwise) imposed by a government or taxing authority (and any
interest, additions to tax, penalties, fines or other charges in respect thereof
other than those arising from a breach by Company or any Borrower of its
obligations hereunder) on any Lender or any Agent that (i) are imposed on, based
on or measured by gross or net income or gross or net receipts (including,
without limitation, capital gains taxes, excess profits taxes, minimum taxes,
alternative minimum taxes and taxes on tax preference items) or (ii) are
capital, net worth, intangible, excise, franchise, doing business, accumulated
earnings, personal holding company, or similar taxes other than franchise, doing
business or similar taxes imposed solely as a result of the transactions
contemplated hereby.
18
"Existing Credit Agreement" has the meaning assigned to that
term in the recitals of this Agreement.
"Existing Lenders" has the meaning assigned to that term in
the recitals of this Agreement.
"Existing Promissory Notes" has the meaning assigned to that
term in the recitals of this Agreement.
"Exposure" means the Australian Exposure, the Canadian
Exposure and/or the U.S. Exposure.
"Face Amount" means, in respect of a Draft or a Bankers'
Acceptance, as the case may be, the amount payable to the holder thereof on its
maturity.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York, or if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fiscal Year" means the fiscal year of Company ending on
December 31 of each calendar year.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the United States accounting profession, in each case as the same are applicable
to the circumstances as of the date of determination.
"Gold" means unallocated or pool account gold or refined gold
in bar form (which bears the stamp of a smelter and assayer from the good
delivery list of the London Bullion Market Association, as such terms are
understood in the gold trade) of a purity (i.e. the ratio of fine gold per 1,000
parts of gold, expressed to the fourth decimal place) of at least .9950 or such
other ratio as U.S. Borrower and U.S. Lenders may agree with respect to any Gold
Loan.
"Gold Advance Date" means, in relation to any outstanding Gold
Loan (including any Gold Loan that has been continued for successive Interest
Periods), the date upon which such Gold Loan initially was funded.
19
"Gold Loan" means a loan of Gold made by U.S. Lenders to U.S.
Borrower hereunder and upon which interest shall accrue at the Gold Rate.
"Gold Rate" means, with respect to any Gold Loan advanced by
any U.S. Lender for any Interest Period applicable thereto, the rate of interest
per annum, calculated on the basis of a 360 day year (rounded upwards, if
necessary, to the next 1/16% of one percent) equal to the greater of (i) the
Applicable Margin, and (ii) the Eurodollar Rate plus the Applicable Margin less
the mean rate quoted in the London Interbank Forward Bullion Market as set forth
on the Reuters GOFO page at 11:00 A.M. (London Time) two Business Days prior to
the first day of such Interest Period. If the rate set forth above is not
available on the Reuters GOFO page, the Gold Rate shall be the rate of interest
per annum, calculated on the basis of a 360 day year, equal to the arithmetic
average (rounded upwards, if necessary, to the next 1/16% of one percent) of the
rates offered by the Gold Rate Reference Lenders two Business Days prior to the
first day of the applicable Interest Period.
"Gold Rate Reference Lenders" means Chase and Deutsche Bank.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
federal, state or local governmental authority, agency or court.
"Government Acts" has the meaning assigned to that term in
subsection 2.7H.
"Grid Gold Acknowledgement" means an acknowledgement by U.S.
Borrower substantially in the form of Exhibit V annexed hereto.
"Hazardous Materials" means any pollutant, contaminant, toxic
or hazardous substance, toxic or hazardous material, toxic or hazardous
constituent or toxic or hazardous waste, as such terms are defined in or
pursuant to any Environmental Law.
"HCI Exchangeable Stock" means capital stock of Canadian
Borrower which conveys voting rights with respect to the Company, is
exchangeable and redeemable, under certain circumstances, for Company common
stock, and is satisfactory to the Administrative Agent.
"HGAL" has the meaning assigned to that term in the introduc-
tion to this agreement.
"Indebtedness", as applied to any Person, means (i) all
indebtedness for borrowed money or gold loans, (ii) that portion of obligations
with respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP, (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money, (iv) any obligation owed for all or any part of the deferred
purchase price of property or services, which purchase price is (A) due more
than 180 days from the date of incurrence of the obligation in respect thereof
or (B) evidenced by a note or similar written instrument, and (v) all
obligations of the type described in clauses (i) through (iv) above secured by
any Lien on any
20
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person. Obligations under Interest Rate
Protection Agreements, Currency Protection Agreements, and options, forward
sales contracts and futures contracts designed to protect Company and its
Subsidiaries from fluctuations in interest rates, currency values or the Price
of Gold (excluding any Gold Loans) constitute Contingent Obligations and not
Indebtedness.
"Indemnitee" has the meaning assigned to that term in subsec-
tion 10.3.
"Intellectual Property" means all patents, trademarks,
tradenames, copyrights, technology, know-how and processes used in or necessary
for the conduct of the business of Company and its Subsidiaries as currently
conducted that are material to the condition (financial or otherwise), business
or operations of Company and its Subsidiaries, taken as a whole.
"Interest Payment Date" means (i) with respect to any Base
Rate Loan, March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Effective Date, and (ii)
with respect to any Eurodollar Rate Loan, Bank Bill Swap Rate Loan or Gold Loan,
the last day of each Interest Period applicable to such Loan; provided that in
the case of each Interest Period of longer than three months or 90 days, as the
case may be, "Interest Payment Date" shall also include each three month or 90
day, as the case may be, anniversary of the commencement of such Interest
Period.
"Interest Period" means (i) with respect to each Eurodollar
Rate Loan or Bank Bill Swap Rate Loan, a period of one, two, three or six
months, and (ii) with respect to each Gold Loan, a period of 30, 60, 90 or 180
days and any other period (subject to availability to each U.S. Lender), in each
case as selected by the applicable Borrower pursuant to a Notice of Borrowing or
a Notice of Conversion/Continuation; provided that, subject to the provisions of
subsection 2.6C, no Interest Period in respect of any Gold Loan may be selected
by U.S. Borrower if any U.S. Lender is for any reason unable to fund a Gold Loan
having such Interest Period.
"Interest Rate Determination Date" means each date for
calculating the Adjusted Eurodollar Rate, the Eurodollar Rate or the Gold Rate
for purposes of determining the interest rate in respect of an Interest Period.
The Interest Rate Determination Date shall be the second Business Day prior to
the first day of the related Interest Period.
"Interest Rate Protection Agreement" means any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
synthetic cap agreement or other similar agreement or arrangement designed to
protect Company or any of its Subsidiaries against fluctuations in interest
rates.
"Internal Revenue Code" means the United States Internal
Revenue Code of 1986, as amended to the date hereof and from time to time
hereafter.
"Investment" means (i) any direct or indirect purchase or
other acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, stock or other Securities of any other Person, or (ii) any direct
or indirect loan, advance (other than advances to current or
21
former employees or directors pursuant to employee benefit plans, programs or
employment arrangements or otherwise for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in each case in the ordinary
course of business) or capital contribution by Company or any of its
Subsidiaries to any other Person (other than a Subsidiary of Company) including
all indebtedness and accounts receivable from that other Person that are not
current assets or did not arise from sales to that other Person in the ordinary
course of business. A contribution of undeveloped real property or other mineral
interests to a Joint Venture shall not be deemed to be a capital contribution to
any other Person. The amount of any Investment shall be the original cost of
such Investment plus the cost of all additions thereto less the amount of all
cash received as repayment of principal or return of capital, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment.
"Issuing Lender" means (i) with respect to any U.S. Letter of
Credit or any Australian Letter of Credit, Chase, and (ii) with respect to any
Canadian Letter of Credit, Chase Canada.
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form.
"Lender" and "Lenders" means the persons identified as
"Lenders" and listed on the signature pages of this Agreement, together with
their successors and permitted assigns pursuant to subsection 10.1; provided
that the term "Lenders", when used in the context of a particular Commitment,
shall mean Lenders having that Commitment.
"Lending Office" means, in relation to any Lender that is a
Canadian Lender, such Lender's Canadian Lending Office; in relation to any
Lender that is an Australian Lender, such Lender's Australian Lending Office; in
relation to any Lender that is a U.S. Lender, such Lender's U.S. Lending Office;
or in relation to any Lender that is two or more of a U.S. Lender, a Canadian
Lender and/or an Australian Lender, such Lender's U.S. Lending Office, insofar
as borrowings and payments relating to U.S. Loans or U.S. Letters of Credit are
concerned, Canadian Lending Office, insofar as borrowings and payments relating
to Canadian Loans, Canadian Letters of Credit or Bankers' Acceptances are
concerned, or Australian Lending Office, insofar as borrowings and payments
relating to Australian Loans or Australian Letters of Credit are concerned.
"Lending Unit" means (i) any U.S. Lender, (ii) its affiliated
Canadian Lender (if any), and (iii) its affiliated Australian Lender (if any),
as set forth on the signature pages hereof or in any applicable Assignment and
Acceptance.
"Letter of Credit" or "Letters of Credit" means Standby
Letters of Credit issued, or deemed issued, by the applicable Issuing Lender for
the account of any Borrower pursuant to subsection 2.7A.
"Letter of Credit Fee Percentage" means the applicable
percentage set forth below based upon the actual or stated senior implied
ratings established by S&P and Moody's, respectively, applicable on such date to
the senior, unsecured, non-credit enhanced, long-term
22
Indebtedness for borrowed money of Company (or, if no actual or stated senior
implied ratings are in effect, the ratings one category higher than the ratings
for subordinated, unsecured, non-credit enhanced long-term Indebtedness for
borrowed money of Company):
Category S&P/Moody's Rating Percentage
-------- ------------------ ----------
1 BBB+/Baa1 or above 0.40%
2 BBB/Baa2 0.50%
3 BBB-/Baa3 0.625%
4 BB+/Ba1 0.875%
5 BB/Ba2 1.00%
6 BB-/Ba3 or below 1.125%
For purposes of the foregoing, (i) if neither Moody's nor S&P
shall have in effect a rating for the senior or subordinated, unsecured,
non-credit enhanced, long-term Indebtedness for borrowed money of Company (other
than by reason of the circumstances referred to in the last sentence of this
definition), then the Letter of Credit Fee Percentage shall be based on Category
6; (ii) if only one of Moody's and S&P shall have in effect a rating for the
senior or subordinated, unsecured, non-credit enhanced, long-term Indebtedness
for borrowed money of Company, then the Letter of Credit Fee Percentage shall be
determined on the basis of such rating; (iii) if the ratings established or
deemed to have been established by Moody's or S&P for the senior or
subordinated, unsecured, non-credit enhanced, long-term Indebtedness for
borrowed money of Company, shall fall within different Categories, the Letter of
Credit Fee Percentage shall be based on the Category corresponding to the lower
rating (higher percentage); and (iv) if any rating established or deemed to have
been established by Moody's or S&P shall be changed (other than as a result of a
change in the rating system of Moody's or S&P), such change shall be effective
as of the date on which it is first announced by the applicable rating agency.
Each change in the Letter of Credit Fee Percentage shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Moody's or S&P shall change, or if any such rating agency shall cease
to be in the business of rating corporate debt obligations, Company and Lenders
shall negotiate in good faith to amend the references to specific ratings in
this definition to reflect such changed rating system or the non-availability of
ratings from such rating agency, and pending the effectiveness of any such
amendment, the ratings of such rating agency most recently in effect prior to
such change or cessation shall be employed in determining the Letter of Credit
Fee Percentage.
"Letter of Credit Usage" means the Australian Letter of Credit
Usage, the Canadian Letter of Credit Usage and/or the U.S. Letter of Credit
Usage.
23
"Lien" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"Lien" shall not include any arrangement with respect to Joint Ventures where
legal title to assets in which the Company or Borrower or their Subsidiaries
have a beneficial interest is held in the name of the operator or another
participant in such Joint Venture or in the name of the Joint Venture if such
arrangement is not for the purpose of securing Indebtedness (other than
Indebtedness that may arise in respect of a participant's lien or an operator's
lien).
"Loan" or "Loans" means any Canadian Loans, any Australian
Loans, any U.S. Loans, or any combination thereof.
"Loan Documents" means this Agreement, any applications,
reimbursement agreements and other documents or certificates executed in favor
of any Issuing Lender relating to the Letters of Credit, any Notes, any Drafts,
any Bankers' Acceptances and any Grid Gold Acknowledgements.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board as in effect from time to time.
"Marketable Securities" means corporate cash investments with
a weighted average portfolio maturity of two years or less, consisting of (i)
marketable direct obligations issued or unconditionally guaranteed by the United
States Government or Canadian Government or the Commonwealth of Australia or
issued by any agency thereof and backed by the full faith and credit of the
United States or Canada or the Commonwealth of Australia thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any Province of Canada or any state or territory of the Commonwealth
of Australia or any political subdivision of any such state, Province or
territory or any public instrumentality thereof at the time of acquisition
having the highest rating obtainable from S&P, Moody's or Dominion Bond Rating
Service; (iii) commercial paper at the time of acquisition having a rating of at
least A-1 (or A-2, provided such commercial paper has a rating of at least P-1
from Moody's) from S&P, at least P-1 (or P-2, provided such commercial paper has
a rating of at least A-1 from S&P) from Moody's or least R-1 (Middle) from
Dominion Bond Rating Service and, any of the preceding ratings may be met by an
attached letter of credit from a bank or municipal bond insurance; (iv)
certificates of deposit or bankers' acceptances issued by any commercial bank or
trust company organized under the laws of the United States of America or any
state thereof or the District of Columbia or under the laws of Canada or any
Province thereof or under the laws of the Commonwealth of Australia or any state
or territory thereof or any non-U.S. commercial bank which at the time of
acquisition is ranked among the 100 largest banks in the world (by assets as
ranked by the American Banker Journal), and rated B/C or better by IBCA or KBW
rating service and having at least one of the credit ratings identified in
clause (iii) above (or higher credit ratings) obtainable from S&P, Moody's or
Dominion Bond Rating Service; (v) Eurodollar time deposits purchased directly
from any commercial bank or trust company described in clause (iv) above; and
(vi) repurchase agreements and reverse repurchase agreements with any commercial
bank or trust company
24
described in clause (iv) above or with any financial institution whose
commercial paper at the time of acquisition has a rating of at least A-1 from
S&P or whose long-term Indebtedness at the time of acquisition has a rating of
at least Aa, relating to marketable direct obligations issued or unconditionally
guarantied by the United States Government or Government of Canada or the
Government of the Commonwealth of Australia or issued by any agency thereof and
backed by the full faith and credit of the United States or Canada or the
Commonwealth of Australia; and (vii) indebtedness of any corporation at the time
of acquisition rated A1 or AA by S&P or equivalent rating service.
"Material Adverse Effect" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company, Company and its Subsidiaries, taken as a
whole, or any Borrower, and in the case of any ERISA Event, the ERISA Affiliates
of Company taken as a whole, or (ii) a material adverse effect on the ability of
Company or any Borrower to perform, or of any Agent or Lenders to enforce, the
Obligations.
"Material Subsidiary" means any Borrower, any Subsidiary that
owns any assets constituting a portion of the Mining Group and any other
Subsidiary (i) whose total assets at the end of any fiscal quarter of Company
equal more than 10% of the Consolidated Net Worth of Company and its
Subsidiaries as at the end of such quarter or (ii) whose total revenue for any
Fiscal Year of Company equals more than 10% of the consolidated revenues of the
Company and its Subsidiaries for such Fiscal Year determined in accordance with
GAAP. A Subsidiary that is or becomes a Material Subsidiary shall not cease to
be a Material Subsidiary if it subsequently fails to meet either of the two
preceding requirements without the consent of the Requisite Lenders. The
Material Subsidiaries as of the Effective Date are identified in Schedule 4.1
annexed hereto.
"Mining Group" means the currently producing mines, part or
all of which are owned by Company or any of its Subsidiaries or Joint Ventures.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan", as defined
in Section 3(37) of ERISA, (i)(a) to which Company or any of its ERISA
Affiliates is contributing, or within the past six years has contributed, or (b)
to which Company or any of its ERISA Affiliates has, or within the past six
years has had, an obligation to contribute, and (ii) with respect to which
Company or any of its ERISA Affiliates retains any liability.
"New Subordinated Indebtedness" means up to $300 million of
Indebtedness of Company or Canadian Borrower (and any guaranties of such
Indebtedness) issued after the Effective Date, having a maturity of not less
than five years, convertible into common stock of Company, that, in part,
refinances the Subordinated Debentures, and that is subordinated to the
Obligations (including any guaranty of the Obligations) on terms and conditions
approved in writing by the Administrative Agent.
25
"Non-Recourse Debt" means indebtedness for borrowed money or
gold loans the repayment of which, by its express contract terms, may be
enforced only by foreclosure or other realization on any collateral security
therefor and as to which the obligor thereon shall not otherwise have any
personal liability.
"Notes" means the promissory notes of Borrowers issued to
Lenders pursuant to subsection 2.1D, substantially in the forms of Exhibit IV-A
(in the case of Canadian Borrower), Exhibit IV-B and Exhibit IV-C (in the case
of Australian Borrowers), and Exhibit IV-D (in the case of U.S. Borrower)
annexed hereto, and as they may be further amended, supplemented or otherwise
modified from time to time.
"Notice of Allocation" means a notice substantially in the
form of Exhibit XIII annexed hereto delivered by Borrowers pursuant to
subsection 2.1A for the purpose of allocating the Overall Commitments among the
Canadian Allocation, the Australian Allocation and the U.S. Allocation.
"Notice of Borrowing" means a notice substantially in the form
of Exhibit I annexed hereto delivered by the applicable Borrower to the
Applicable Administrative Agent and Administrative Agent pursuant to subsection
2.1B with respect to a proposed borrowing of Loans.
"Notice of Conversion/Continuation" means a notice
substantially in the form of Exhibit II annexed hereto delivered by the
applicable Borrower to the Applicable Administrative Agent and Administrative
Agent pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
"Notice of Issuance of Letter of Credit" means a notice in the
form of Exhibit XI annexed hereto, delivered by a Borrower to the Applicable
Administrative Agent and Administrative Agent pursuant to subsection 2.7B with
appropriate insertions and deletions, with respect to the proposed issuance or
amendment of a Letter of Credit.
"Obligations" means all obligations of every nature of Company
and each Borrower from time to time owed to Agents, Arranger, Lenders or any of
them under the Loan Documents, whether for principal, interest, reimbursement of
amounts drawn under or cash collateralization of Letters of Credit, payment at
maturity or cash collateralization of Bankers' Acceptances, fees, expenses,
indemnification or otherwise.
"Officers' Certificate" means, as applied to any corporation,
a certificate executed on behalf of such corporation by its chairman of the
board (if an officer) or its president or one of its vice presidents and by its
chief financial officer or its treasurer or, with respect to any Australian
Borrower, any director, secretary or Authorized Signor of such Australian
Borrower; provided that every Officers' Certificate with respect to the
compliance with a condition precedent to the making of any Loans or the issuance
of any Letter of Credit or the creation and purchase of any Bankers' Acceptance
hereunder shall include (i) a statement that the officer or officers, directors,
secretary or Authorized Signor making or giving such Officers' Certificate have
read such condition and any definitions or other provisions contained in this
Agreement
26
relating thereto, (ii) a statement that, in the opinion of the signer(s), they
have made or have caused to be made such examination or investigation as is
necessary to enable them to express an informed opinion as to whether or not
such condition has been complied with, and (iii) a statement as to whether, in
the opinion of the signers, such condition has been complied with.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that Person is the lessor.
"Ounce" or "Ounces" means a fine troy ounce or fine troy
ounces.
"Overall Commitments" means the aggregate Commitments of all
of the Lending Units.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Permitted Encumbrances" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 5.3, other than any Lien imposed pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to Section 302(f) or 4068 of ERISA, or deposits or
pledges to obtain the release of any such liens;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens
imposed by law and Liens of smelters, refiners and other
processors of ore, minerals and other products thereof, in
each case where incurred in the ordinary course of business
for sums not yet delinquent or being contested in good faith,
or deposits or pledges to obtain the release of any such Liens
if such reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made therefor;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the
payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an Event
of Default under subsection 7.8;
27
(v) leases or subleases granted to others not interfering in
any material respect with the ordinary conduct of the business
of Company or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar
charges or encumbrances or defects in title to property not
interfering in any material respect with the ordinary conduct
of the business of Company or any of its Subsidiaries;
(vii) any interest or title of a lessor or sublessor under any
lease not prohibited by this Agreement;
(viii) precautionary filings relating solely to leases
permitted by this Agreement;
(ix) mineral, oil, gas, and geothermal leases, licenses,
grazing leases, timber cutting rights, easements, minimum
royalties and rents, delayed rentals, work commitments,
production royalties, profit interests, surface owner
interests, extralateral rights, and rights of subadjacent and
lateral support burdening any properties of Company or any of
its Subsidiaries;
(x) the paramount rights of the United States of America or
any other governmental authority in and to any unpatented
mining or mill site claims or leases held by Company or any of
its Subsidiaries;
(xi) the reservations, limitations, provisos, and conditions,
if any, expressed in any original grants from the Crown;
(xii) Liens of Joint Venture participants and operators on
properties being developed or operated by Joint Ventures
securing the respective obligations of the joint venturers or
participants to advance funds or reimburse advances of funds
or to perform obligations under the applicable joint venture
agreements;
(xiii) Liens in favor of Company or Borrowers; and
(xiv) Liens or deposits or pledges to secure the performance
by Company, Borrowers or their Subsidiaries or Joint Ventures
with respect to the remediation, reclamation or stabilization
of disturbed properties currently or formerly owned or leased
by Company, Borrowers or their Subsidiaries or Joint Ventures;
provided that any such Liens attach only to the property to be
remediated, reclaimed or stabilized; and provided further that
Company shall have first used its best efforts to cause a
letter of credit to be issued or deliver a guaranty to assure
performance in lieu of granting such Liens or making such
deposits or pledges; and provided further such Liens, deposits
or pledges are promptly released upon satisfaction of such
remediation, reclamation or stabilization obligation.
28
excluding, however, in any case prior to the Prime Acquisition Date, any such
Liens granted or created by Company or any of its Subsidiaries (other than
Prime) on or with respect to their properties or assets to secure any
obligations of Prime at any time that Indebtedness permitted under subsection
6.1(vi) is outstanding.
"Person" means natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, Joint Ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Plutonic" has the meaning assigned to that term in the intro-
duction to this Agreement.
"Plutonic Acquisition" means the transaction pursuant to which
Plutonic became a wholly-owned Subsidiary of Company, which transaction was
completed on or about April 30, 1998.
"Plutonic Acquisition Documents" means each of the agreements
to which Plutonic and Company, or any of Company's Subsidiaries or Affiliates,
are parties that effectuated or is related to the Plutonic Acquisition, as
amended through the date hereof.
"Plutonic Credit Facility" means the $A400 million Syndicated
Debt Facilities Agreement dated as of June 23, 1997 among Plutonic Finance Pty
Ltd; certain Guarantors, certain Arrangers, certain Lenders and Chase Securities
Australia Limited, as Agent.
"Potential Event of Default" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"Price of Gold" means, on any day, and except as provided in
the next sentence, the price per Ounce of Gold collectively set by the fixing
members of the London Bullion Market Association in the afternoon (London time)
of such day, (including an amount, if any, equal to the premium and any other
additional amounts that would be payable in the applicable market in connection
with a purchase of Gold). If there is no such fixing, then (a) if such day is
any day other than a Saturday, Sunday or holiday in London, the "Price of Gold"
shall be the publicly quoted price in Dollars per Ounce of Gold on such other
accessible international bullion market as may be selected by Administrative
Agent or (b) if no such quotation is available, or such day is a Saturday, a
Sunday or a holiday in London, the "Price of Gold" shall be the last price so
set by the fixing members of the London Bullion Market Association.
"Prime" means Prime Resources Group, Inc., a British Columbia
corporation, approximately 50.6% of the capital stock of which, on the Effective
Date, is owned directly or indirectly by Canadian Borrower, together with its
Subsidiaries.
"Prime Acquisition Date" means the date upon which Company or
one of its wholly owned Subsidiaries acquire all of the capital stock of Prime
not owned by Company and its wholly owned Subsidiaries.
29
"Pro Rata Share" means, with respect to any Lending Unit (and
of any Lender(s) constituting such Lending Unit), the percentage obtained by
dividing (x) the Commitment of that Lending Unit by (y) the aggregate amount of
the Overall Commitments, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1B. The initial Pro
Rata Share of each Lending Unit (and of any Lender(s) constituting such Lending
Unit) is set forth opposite the name of that Lending Unit in Schedule 2.1
annexed hereto.
"Purchase Money Security Interest" means any security
interest, however denominated, on any property created or retained at the time
of acquisition of such property in order to secure all or any part of the
acquisition cost thereof or in order to secure all or any Indebtedness incurred
for the purpose of financing or refinancing (without increasing the then
outstanding amount) such Indebtedness.
"Reference Lenders" means Chase, and Deutsche Bank.
"Register" has the meaning assigned to that term in subsection
10.1.F.
"Regulation D" means Regulation D of the Board, as in effect
from time to time.
"Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the environment
(including, without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials), or
into or out of any Facility, including the movement of any Hazardous Material
through the air, soil, surface water, groundwater or property.
"Requisite Lenders" means prior to an acceleration of the
Obligations, Lending Units having or holding 51% or more of the sum of the
Overall Commitments of all Lending Units and upon and after an acceleration of
the Obligations, Lending Units having or holding 51% or more of the total
aggregate Exposure outstanding.
"Responsible Officer" means, with respect to any Person, any
one of the chairman of the board (if an officer), president, vice presidents,
chief financial officer and treasurer of such Person or, with respect to any
Australian Borrower, any director, secretary or Authorized Signor of such
Australian Borrower.
"Restricted Junior Payment" means (i) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of Company,
Canadian Borrower or any Wholly-owned Subsidiary of Company, other than any
redemption or other payment where the consideration is common stock of Company,
(ii) any payment of dividends to shareholders by Canadian Borrower or any
Wholly-owned Subsidiary of Company, and (iii) any payment or prepayment of
principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in-substance or legal defeasance), sinking
fund or similar payment with respect to any Subordinated Indebtedness. For
purposes of this definition, "Wholly-owned Subsidiary" means any Subsidiary of
which the
30
Company owns, directly or indirectly, all of the economic and voting
interest, provided that directors qualifying shares shall not be deemed
outstanding for purposes of this definition.
"S&P" means Standard & Poor's Ratings Group - a McGraw Hill
Company.
"Securities" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Solvent" means, with respect to any Person, that as of the
date of determination (i) the then fair saleable value of the property of such
Person as a going concern is (y) greater than the total amount of liabilities
(including anticipated Contingent Obligations and other contingent liabilities
only to the extent of the probable liability with respect to such Contingent
Obligations and other contingent liabilities) of such Person and (z) greater
than the amount that will be required to pay the probable liabilities of such
Person's then existing debts as they become absolute and matured; (ii) such
Person's capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe that it will incur, debts beyond its ability to pay such debts
as they become due.
"Standby Letter of Credit" means any standby letter of credit
or similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or Operating Leases of Company or any of its Subsidiaries, (v)
performance, payment, deposit or surety obligations of Company or any of its
Subsidiaries, in any case if required by law or governmental rule or regulation
or agreement in accordance with custom and practice in the industry, (vi)
obligations of Company or any of its Subsidiaries imposed by statute or by a
court of competent jurisdiction to post appeal bonds or other security in
connection with litigation appeals, and (vii) other obligations of Company or
any of its Subsidiaries approved by Administrative Agent in its sole discretion;
provided that Standby Letters of Credit may not be issued for the purpose of
supporting trade payables.
"Statutory Reserves" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority to which
Administrative Agent is subject for new negotiable non-personal time deposits in
Dollars
31
of over $100,000 with maturities approximately equal to three months.
Such reserve percentages shall include those imposed pursuant to such Regulation
D of the Board. Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"Subordinated Debentures" means Company's 5.5% Convertible
Subordinated Notes due 2000 in the aggregate original principal amount of
$150,000,000.
"Subordinated Indebtedness" means (i) the Subordinated
Debentures and the New Subordinated Indebtedness, and (ii) any other
Indebtedness of Company or any of its Subsidiaries that is subordinated to the
Obligations (including any guaranty of the Obligations) on terms and conditions
approved in writing by Requisite Lenders.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association, Joint Venture or other business entity of
which 50% or more of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"Tax" or "Taxes" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
"Tax Transferee" means any Person who acquires any interest in
the Loans (whether or not by operation of law) or the office to which a Lender
or any Agent has transferred its Loans for purposes of determining where the
Loans are made, accounted for or booked.
"Total Utilization of Overall Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Loans (valued in Dollar Equivalents as of such date of
determination), plus (ii) the Canadian Letter of Credit Usage, plus (iii) the
Australian Letter of Credit Usage, plus (iv) the U.S. Letter of Credit Usage,
plus (v) the BA Usage.
"U.S. Allocation" means the portion of the Overall Commitments
allocated to U.S. Borrowers in Schedule 2.1 or in the most recent Notice of
Allocation delivered by Borrowers and Company pursuant to subsection 2.1A.
"U.S. Base Rate (Canada)" means the rate of interest per annum
equal to the greater of (i) the rate which the principal office of the Canadian
Administrative Agent in Toronto, Ontario announces from time to time as its
"base rate" and which is its reference rate of interest for loans in U.S.
Dollars to its Canadian borrowers; and (ii) 1/2 of 1% above the U.S. Federal
Funds Rate, adjusted automatically with each change in such rate all without the
necessity of any notice to Canadian Borrower or any other Person.
32
"U.S. Base Rate (Canada) Loans" means Dollar Loans made by
Canadian Lenders pursuant to subsection 2.1A(i) and bearing interest at rates
determined by reference to the U.S. Base Rate (Canada) as provided in subsection
2.2A.
"U.S. Base Rate Loans" means Dollar Loans made by U.S. Lenders
pursuant to subsection 2.1A(iii) and bearing interest at rates determined by
reference to the Alternate Base Rate as provided in subsection 2.2A.
"U.S. Borrower Account" means that certain account with the
Administrative Agent, care of Agent Bank Services Group, 140 E. 45th Street, New
York, New York, 10017, Clearing Account Number 323508308, maintained at Chase.
"U.S. Commitment" means the commitment of each U.S. Lender (i)
to make or maintain U.S. Loans pursuant to subsection 2.1A, and (ii) to issue
(in the case of the applicable Issuing Lender) or acquire risk participations in
(in the case of all other U.S. Lenders) U.S. Letters of Credit pursuant to
subsection 2.7 in an aggregate amount, valued in Dollar Equivalents, at no time
exceeding such U.S. Lender's Pro Rata Share of the U.S.
Allocation.
"U.S. Commitment Usage" means, as of any date of
determination, the aggregate outstanding principal amount of (i) the U.S. Loans
that are Dollar Loans, and (ii) the U.S. Loans that are Gold Loans (valued in
Dollar Equivalents based on the Price of Gold as of such date of determination)
plus the U.S. Letter of Credit Usage.
"U.S. Exposure" means with respect to any U.S. Lender as of
any date of determination, the U.S. Allocation of such U.S. Lender or, if the
Overall Commitments have been terminated, the sum of (a) the aggregate
outstanding principal amount of all U.S. Loans (valued in Dollar Equivalents as
of such date of determination) of that U.S. Lender plus (b) in the event such
U.S. Lender (or a Lender in its Lending Unit) is an Issuing Lender, the
aggregate Letter of Credit Usage in respect of all U.S. Letters of Credit issued
by such U.S. Lender (or such Lender in that Lending Unit) (in each case net of
any participations purchased by other U.S. Lenders in such U.S. Letters of
Credit or any unreimbursed drawings thereunder valued in Dollar Equivalents as
of such date of determination) plus (c) the aggregate amount of all
participations purchased by that U.S. Lender in any outstanding U.S. Letters of
Credit or any unreimbursed drawings under any U.S. Letter of Credit (valued in
Dollar Equivalents as of such date of determination).
"U.S. Lender Allocation" means, with respect to any U.S.
Lender, the portion of the U.S. Allocation allocated to such U.S. Lender.
"U.S. Lender Pro Rata Share" means, with respect to any U.S.
Lender, the percentage obtained by dividing the U.S. Exposure of such U.S.
Lender by the aggregate U.S. Exposure of all U.S. Lenders.
"U.S. Lenders" means each of the Lenders of each Lending Unit
designated as the U.S. Lender for such Lending Unit on the signature pages
hereof or in any applicable Assignment and Acceptance.
33
"U.S. Lending Office" means, in relation to any U.S. Lender,
its U.S. lending office as specified under its signature on the signature pages
hereof or such other office as is specified by such Lender in a written notice
to Administrative Agent and U.S. Borrower.
"U.S. Letter of Credit" or "U.S. Letters of Credit" means
Standby Letters of Credit issued, or deemed issued, by the applicable Issuing
Lender for the account of U.S. Borrower pursuant to subsection 2.7.
"U.S. Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is available
for drawing under all U.S. Letters of Credit then outstanding, plus (ii) the
aggregate amount of all drawings under all U.S. Letters of Credit honored by the
applicable Issuing Lender and not theretofore reimbursed by Borrowers.
"U.S. Loans" means Dollar Loans and/or Gold Loans made by U.S.
Lenders to U.S. Borrower pursuant to subsection 2.1A(iii).
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii) and
(xi) of subsection 5.1 shall be prepared in accordance with GAAP as in effect at
the time of such preparation. If any changes in accounting principles from those
used in the preparation of the financial statements referred to in subsection
4.5 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) result in a change in the method of
calculation of financial covenants, standards or terms found in Sections 1, 5
and 6 hereof, the parties hereto agree to enter into negotiations in order to
amend such provisions so as to equitably reflect such changes with the desired
result that the criteria for evaluating Company's consolidated financial
condition shall be the same after such changes as if such changes had not been
made.
1.3 Other Definitional Provisions.
References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided. Any of the terms defined in subsection 1.1 may, unless
the context otherwise requires, be used in the singular or the plural, depending
on the reference.
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Loans.
34
A. Commitments. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company and
Borrowers herein set forth, each Lender hereby severally agrees to make the
Loans described in this subsection 2.1A that are, pursuant to the terms of this
subsection 2.1A, to be made by such Lender. The commitments of the Lenders to
make such Loans consist of the Canadian Commitments of the Canadian Lenders, the
Australian Commitments of the Australian Lenders and the U.S. Commitments of the
U.S. Lenders, such commitments being more fully described below. Initially, the
amount of each Lending Unit's U.S. Commitment, Canadian Commitment, and
Australian Commitment are set forth opposite its name on Schedule 2.1 and the
aggregate amount of the U.S. Commitments of all Lending Units shall be
$430,000,000, the aggregate amount of the Canadian Commitments of all Lending
Units shall be $380,000,000, and the aggregate amount of the Australian
Commitments of all Lending Units shall be $340,000,000. Company and Borrowers
shall initially allocate the Overall Commitments to Canadian Borrower,
Australian Borrowers and U.S. Borrower, subject to the provisions of this
Agreement. The initial amounts of the Canadian Allocation, the Australian
Allocation and the U.S. Allocation and initial Canadian Lender Pro Rata Share,
Australian Lender Pro Rata Share, U.S. Lender Pro Rata Share, and Pro Rata Share
of each Lender are set forth on Schedule 2.1. Company and Borrowers may,
effective as of the first Business Day of each June and December, commencing on
December 1, 1998, change the amount of the Overall Commitments allocated to the
Canadian Allocation, the Australian Allocation and the U.S. Allocation and the
allocation among the Lenders by delivering an irrevocable Notice of Allocation
to Administrative Agent at least 14 days and not more than 60 days prior to date
upon which such allocation is to be effective; provided that (1) such allocation
shall be reasonably acceptable to the Administrative Agent, (2) such allocation
shall maximize, to the greatest extent possible, the Commitment of each Lender
available to each Borrower, (3) the aggregate amount of the Canadian Allocation,
the Australian Allocation and the U.S. Allocation of each Lending Unit shall not
exceed its Commitment, (4) the Canadian Allocation for each Lending Unit may not
exceed its Canadian Commitment and may not be reduced to an amount that is less
than the outstanding Canadian Commitment Usage of such Lending Unit, (5) the
Australian Allocation for each Lending Unit may not exceed its Australian
Commitment and may not be reduced to an amount that is less than the outstanding
Australian Commitment Usage of such Lending Unit, and (6) the U.S. Allocation
for each Lending Unit may not exceed its U.S. Commitment and may not be reduced
to an amount that is less than the outstanding U.S. Commitment Usage of such
Lending Unit. Administrative Agent shall promptly notify each Lender of any
proposed change in the allocation of the Commitments or of any proposed change
in any Lending Unit's Australian Lender Pro Rata Share, Canadian Lender Pro Rata
Share, or U.S. Lender Pro Rata Share. The aggregate amount of the Overall
Commitments may be permanently reduced from time to time in accordance with
subsection 2.4.
(i) Canadian Borrower Loans. The Canadian Lender, if any, of
each Lending Unit severally agrees, subject to the limitations
set forth below with respect to the maximum amount of Canadian
Loans permitted to be outstanding from time to time, to lend
to Canadian Borrower from time to time during the period from
the Effective Date to but excluding the Commitment Termination
Date Dollars and/or Canadian Dollars, in an aggregate amount,
when valued in Dollar Equivalents and combined with the BA
Usage of such Canadian Lender and its Canadian Lender
35
Pro Rata Share of the Canadian Letter of Credit Usage, not
exceeding the lesser of (a) its Canadian Lender Pro Rata
Share of the Canadian Allocation as in effect from time to
time and (b) the Commitment of its Lending Unit, to be used
for the purposes identified in subsection 2.5A.
(ii) Australian Loans. The Australian Lender, if any, of each
Lending Unit severally agrees, subject to the limitations set
forth below with respect to the maximum amount of Australian
Loans permitted to be outstanding from time to time, to lend
to Australian Borrowers severally and from time to time during
the period from the Effective Date to but excluding the
Commitment Termination Date Dollars and/or Australian Dollars,
in an aggregate amount, when valued in Dollar Equivalents, and
combined with its Australian Lender Pro Rata Share of the
Australian Letter of Credit Usage, not exceeding the lesser of
(a) its Australian Lender Pro Rata Share of the Australian
Allocation as in effect from time to time and (b) the
Commitment of its Lending Unit, to be used for the purposes
identified in subsection 2.5A.
(iii) U.S. Loans. The U.S. Lender of each Lending Unit
severally agrees, subject to the limitations set forth below
with respect to the maximum amount of U.S. Loans permitted to
be outstanding from time to time, to lend to U.S. Borrower
from time to time during the period from the Effective Date to
but excluding the Commitment Termination Date Dollars and/or
Gold, in an aggregate amount, when valued in Dollar
Equivalents, and combined with its U.S. Lender Pro Rata Share
of the U.S. Letter of Credit Usage, not exceeding the lesser
of (a) its U.S. Lender Pro Rata Share of the U.S. Allocation
as in effect from time to time and (b) the Commitment of its
Lending Unit, to be used for the purposes identified in
subsection 2.5A.
(iv) Lending Unit Commitments. Each Lending Unit agrees to
maintain a U.S. Commitment and either an Australian Commitment
or a Canadian Commitment. Each Lending Unit maintaining a U.S.
Commitment and an Australian Commitment also hereby agrees to
maintain a Canadian Commitment unless the maintenance of, or
any advances of funds under, such Canadian Commitment would
result in the imposition of withholding taxes on any payments
to be received by such Lending Unit as a result of such
Canadian Commitment. Each Lending Unit maintaining a U.S.
Commitment and a Canadian Commitment also hereby agrees to
maintain an Australian Commitment unless the maintenance of,
or any advances of funds under, such Australian Commitment
would result in the imposition of withholding taxes on any
payments to be received by such Lending Unit as a result of
such Australian Commitment.
(v) Additional Limitations on Loans. The amounts of the
Canadian Allocation, the Australian Allocation, the U.S.
Allocation, and the Overall Commitments shall be reduced from
time to time by the amount of any reductions thereto made
pursuant to subsection 2.4A. Each Lending Unit's Commitment
and the Canadian
36
Commitment, if any, the Australian
Commitment, if any, and the U.S. Commitment of such Lending
Unit's Canadian Lender, Australian Lender and U.S. Lender,
respectively, shall expire on the Commitment Termination Date
and all Loans and all other amounts owed hereunder with
respect to Loans, Bankers' Acceptances, Letters of Credit and
Overall Commitments shall be paid in full no later than that
date. Amounts borrowed under this subsection 2.1A may be
repaid and reborrowed to but excluding the Commitment
Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Loans and the Overall Commitments shall
be subject to the following limitations:
(a) Subject to the provisions of subsection 2.4A(iii),
the Total Utilization of Overall Commitments shall not at any time
exceed the Overall Commitments then in effect;
(b) Subject to the provisions of subsection 2.4A(iii),
each Lending Unit's U.S. Lender Pro Rata Share of the U.S Commitment
Usage shall not at any time exceed such Lending Unit's U.S.
Allocation and U.S. Commitment then in effect;
(c) Subject to the provisions of subsection 2.4A(iii),
each Lending Unit's Australian Lender Pro Rata Share of the Australian
Commitment Usage shall not at any time exceed such Lending Unit's
Australian Allocation and Australian Commitment then in effect;
(d) Subject to the provisions of subsection 2.4A(iii),
each Lending Unit's Canadian Lender Pro Rata Share of the Canadian
Commitment Usage shall not at any time exceed such Lending Unit's
Canadian Allocation and Canadian Commitment then in effect;
(e) Subject to the provisions of subsection 2.4A(iii),
neither the aggregate amount of the Canadian Exposure for all Canadian
Lenders nor the aggregate amount of the Canadian Commitments for all
Canadian Lenders shall, in either case, at any time exceed the Canadian
Allocation then in effect;
(f) Subject to the provisions of subsection 2.4A(iii),
neither the aggregate amount of the Australian Exposure for all
Australian Lenders nor the aggregate amount of the Australian
Commitments for all Australian Lenders shall, in either case, at any
time exceed the Australian Allocation then in effect;
(g) Subject to the provisions of subsection 2.4A(iii),
neither the aggregate amount of the U.S. Exposure for all U.S. Lenders
nor the aggregate amount of the U.S. Commitments for all U.S. Lenders
shall, in either case, at any time exceed the U.S. Allocation then in
effect;
37
(h) The amount otherwise available for borrowing under
the Overall Commitments as of any time of determination shall be
reduced by the Total Utilization of Overall Commitments;
(i) Canadian Borrower shall not request or borrow
Canadian Dollar Loans if, immediately after giving effect to such
borrowing, the aggregate outstanding principal amount of Canadian Loans
and the Canadian Letter of Credit Usage and the BA Usage, when valued
in Dollar Equivalents, would exceed 95% of the Canadian Allocation then
in effect;
(j) Australian Borrowers shall not request or borrow
Australian Dollar Loans if, immediately after giving effect to such
borrowing, the aggregate outstanding principal amount of Australian
Loans and the Australian Letter of Credit Usage, when valued in Dollar
Equivalents, would exceed 95% of the Australian Allocation then in
effect;
(k) U.S. Borrower shall not request any Gold Loans if,
immediately after giving effect to such borrowing, the aggregate
outstanding amount of Gold Loans advanced to U.S. Borrower would exceed
750,000 Ounces; and
(l) For purposes of computing compliance with the
foregoing clauses (a) through (k), any extension of credit hereunder
the proceeds of which are used on the same day to repay another
extension of credit hereunder shall not be treated as an increase in
the utilization of the Overall Commitments on such day.
B. Borrowing Mechanics. Loans made on any Funding Date (other
than Loans made pursuant to subsection 2.7C for the purpose of reimbursing any
Issuing Lender for the amount of a drawing under a Letter of Credit issued by it
or Loans made (or deemed made) pursuant to subsection 2.8F for the purpose of
reimbursing any Canadian Lender for the Face Amount of any matured Bankers'
Acceptance) shall be in an aggregate minimum amount of (i) $5,000,000 and
integral multiples of $1,000,000 in excess of that amount, in the case of Dollar
Loans, (ii) Cdn.$5,000,000 and integral multiples of Cdn.$1,000,000 in excess of
that amount, in the case of Canadian Dollar Loans, (iii) A$5,000,000 and
integral multiples of A$1,000,000 in excess of that amount, in the case of
Australian Dollar Loans, and (iv) 10,000 Ounces and integral multiples of 2,000
Ounces in excess of that amount, in the case of Gold Loans. Whenever a Borrower
desires that Lenders make Loans it shall deliver a Notice of Borrowing (i) in
the case of U.S. Base Rate Loans, to Administrative Agent no later than 11:00
A.M. (New York time) at least one Business Day in advance of the proposed
Funding Date, (ii) in the case of Eurodollar Rate Loans or Gold Loans to be made
to U.S. Borrower, to Administrative Agent no later than 11:00 A.M. (New York
time) at least three Business Days in advance of the proposed Funding Date,
(iii) in the case of Eurodollar Rate Loans to be made to Canadian Borrower, to
Canadian Administrative Agent and Administrative Agent no later than 11:00 A.M.
(Toronto time) at least three Business Days in advance of the proposed Funding
Date, (iv) in the case of Eurodollar Rate Loans to be made to Australian
Borrowers, to Australian Administrative Agent and Administrative Agent no later
than 12:00 Noon (Sydney time) at least three Business Days in
38
advance of the proposed Funding Date, (v) in the case of U.S. Base Rate (Canada)
Loans and Canadian Base Rate Loans, to Canadian Administrative Agent and
Administrative Agent no later than 11:00 A.M. (Toronto time) at least one
Business Day in advance of the proposed Funding Date, and (vi) in the case of
Bank Bill Swap Rate Loans, to Australian Administrative Agent and Administrative
Agent no later than 12:00 Noon (Sydney time) at least two Business Days in
advance of the proposed Funding Date; provided that, notwithstanding anything to
the contrary, a Borrower may deliver a Notice of Borrowing to Administrative
Agent at least two Business Days in advance of the Effective Date in the case of
the initial Loans. The Notice of Borrowing shall specify (i) the Borrower(s)
requesting the proposed Loans, (ii) the proposed Funding Date (which shall be a
Business Day), (iii) whether such Loans will be denominated in Canadian Dollars,
Australian Dollars, Dollars or Ounces of Gold, (iv) in the case of Dollar Loans,
whether such Dollar Loans are to be U.S. Base Rate Loans, U.S. Base Rate
(Canada) Loans or Eurodollar Rate Loans, (v) in the case of Gold Loans, whether
U.S. Borrower is requesting that the amount of such Loan be converted into
Dollars (based on the Price of Gold as in effect two Business Days prior to the
proposed Funding Date) or that an amount of Gold constituting such Loan be
Delivered, and if so where, (vi) in the case of Gold Loans to be funded in Gold,
whether U.S. Borrower is requesting to pay interest during the initial Interest
Period on such Gold Loan in Dollars or in Gold, and, if payable in Dollars, the
basis for calculating the amount according to one of the alternatives specified
in subsection 2.2F, and (vii) in the case of Eurodollar Rate Loans, Bank Bill
Swap Rate Loans, or Gold Loans, the requested Interest Period. Each such Notice
of Borrowing shall also show the calculation of the Canadian Commitment Usage,
the Australian Commitment Usage, the U.S. Commitment Usage and the Total
Utilization of Overall Commitments after giving effect to the proposed
borrowing, which calculation shall demonstrate compliance with the limitations
on Loans set forth in subsection 2.1A(v). Loans may be continued as or converted
into Loans denominated in the same currency (or in the case of Gold Loans,
Ounces of Gold) in the manner provided in subsection 2.2D. In lieu of delivering
the above-described Notice of Borrowing, the applicable Borrower may give the
Applicable Administrative Agent and Administrative Agent telephonic notice by
the required time of any proposed borrowing under this subsection 2.1B; provided
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to the Applicable Administrative Agent and Administrative Agent on
or before the applicable Funding Date.
Neither any Agent nor any Lender shall incur any liability to
any Borrower in acting upon any telephonic notice referred to above that
Administrative Agent or the Applicable Administrative Agent believes in good
faith to have been given by a duly authorized officer or other person authorized
to borrow on behalf of such Borrower or for otherwise acting in good faith under
this subsection 2.1B, and upon funding of Loans by Lenders in accordance with
this Agreement pursuant to any such telephonic notice such Borrower shall have
effected Loans hereunder to such Borrower.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Borrowing for a Eurodollar Rate Loan, a Base Rate Loan, a Bank
Bill Swap Rate Loan or a Gold Loan (or telephonic notice in lieu thereof) shall
be irrevocable when given, and the Borrower delivering such Notice of Borrowing
shall be bound to make a borrowing in accordance therewith.
39
C. Disbursement of Funds.
(i) Canadian Borrower Loans. All Loans requested by Canadian
Borrower under this Agreement shall be made by Canadian
Lenders simultaneously and proportionately to their respective
Canadian Lender Pro Rata Shares. Promptly after receipt by
Canadian Administrative Agent and Administrative Agent of a
Notice of Borrowing pursuant to subsection 2.1B (or telephonic
notice in lieu thereof) from Canadian Borrower, Canadian
Administrative Agent shall notify each Canadian Lender of the
proposed borrowing and the details thereof. Each Canadian
Lender shall make the amount of its Loan available in the
appropriate currency to Canadian Administrative Agent, in same
day funds at Canadian Administrative Agent's Lending Office
not later than 1:00 P.M. (New York time) on the applicable
Funding Date. Upon satisfaction or waiver of the conditions
precedent specified in subsections 3.1 (in the case of the
initial Loans) and 3.2 (in the case of all Loans), Canadian
Administrative Agent shall make the proceeds of such Canadian
Loans, in the appropriate currency, available to Canadian
Borrower on the applicable Funding Date by causing an amount
of same day funds equal to the proceeds of all such Loans
received by Canadian Administrative Agent from Canadian
Lenders to be credited to the account of Canadian Borrower at
Canadian Administrative Agent's Lending Office.
(ii) Australian Borrowers Loans. All Loans requested by
Australian Borrowers under this Agreement shall be made by
Australian Lenders simultaneously and proportionately to their
respective Australian Lender Pro Rata Shares. Promptly after
receipt by Australian Administrative Agent and Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof) from Australian Borrowers,
Australian Administrative Agent shall notify each Australian
Lender of the proposed borrowing and the details thereof. Each
Australian Lender shall make the amount of its Loan available
in the appropriate currency to Australian Administrative
Agent, in same day funds at Australian Administrative Agent's
Lending Office not later than 12:00 Noon (Sydney time) on the
applicable Funding Date. Upon satisfaction or waiver of the
conditions precedent specified in subsections 3.1 (in the case
of the initial Loans) and 3.2 (in the case of all Loans),
Australian Administrative Agent shall make the proceeds of
such Australian Loans, in the appropriate currency, available
to the applicable Australian Borrower, on the applicable
Funding Date by causing an amount of same day funds equal to
the proceeds of all such Loans received by Australian
Administrative Agent from Australian Lenders to be credited to
the account of Australian Borrowers at Australian
Administrative Agent's Lending Office.
(iii) U.S. Borrower Loans. All Loans requested by U.S.
Borrower under this Agreement shall be made by U.S. Lenders
simultaneously and proportionately to their respective U.S.
Lender Pro Rata Shares. Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to
subsection 2.1B (or telephonic notice in lieu thereof) from
U.S. Borrower, Administrative Agent shall
40
notify each U.S. Lender of the proposed borrowing and the
details thereof. Each U.S. Lender shall make the amount of
its Loan (other than any Gold Loan to be funded in Gold)
available in Dollars to Administrative Agent in same day
funds at Administrative Agent's Lending Office not later
than 1:00 P.M. (New York time) on the applicable Funding
Date. In the case of any Gold Loan to be funded in Gold,
each U.S. Lender shall make the amount of its Gold Loan
available in Gold to Administrative Agent by Delivery of
such Gold not later than 11:00 A.M. (London time) on the
applicable Funding Date to the Administrative Agent's
account with J.P. Morgan, London, England, or such other
London bullion account as may be designated by
Administrative Agent by notice to U.S. Lenders from time to
time not later than three Business Days prior to the
applicable Funding Date. Upon satisfaction or waiver of the
conditions precedent specified in subsections 3.1 (in the
case of the initial Loans) and 3.2 (in the case of all
Loans), Administrative Agent shall make the proceeds of such
Loans in Dollars or Gold, as the case may be, available to
U.S. Borrower on the applicable Funding Date by (a) in the
case of Loans in Dollars, causing an amount of same day
funds equal to the proceeds of all such Loans received by
Administrative Agent from U.S. Lenders to be credited to the
U.S. Borrower Account or (b) in the case of Gold Loans,
either (1) advancing the Dollar Equivalent of such Gold
Loans, which shall be calculated based on the Price of Gold
as in effect on the second Business Day preceding the
applicable Funding Date, and causing an amount of same day
funds equal to such amount of Dollars to be credited to the
U.S. Borrower Account or (2) effecting the Delivery of Gold
comprising such Gold Loans to a location mutually agreed
upon by U.S. Borrower and Administrative Agent and set forth
in the Notice of Borrowing.
(iv) Failure to Fund Loans. No Lender shall be responsible for
any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the
Commitment of any Lender to make the particular type of Loan
requested be increased or decreased as a result of a default
by any other Lender in that other Lender's obligation to make
a Loan requested hereunder. Unless the Applicable
Administrative Agent shall have been notified by any Lender
prior to the Funding Date for any Loans to be funded by such
Lender that such Lender does not intend to make available to
the Applicable Administrative Agent the amount of such
Lender's Loan requested on such Funding Date, the Applicable
Administrative Agent may assume that such Lender has made such
amount available to the Applicable Administrative Agent on
such Funding Date and the Applicable Administrative Agent may,
in its sole discretion, but shall not be obligated to, make
available to the applicable Borrower a corresponding amount on
such Funding Date. If such corresponding amount is not in fact
made available to the Applicable Administrative Agent by such
Lender, the Applicable Administrative Agent shall be entitled
to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such
Funding Date until the date such amount is paid to the
Applicable Administrative Agent, at the customary rate set by
the Applicable Administrative Agent for the
41
correction of errors among banks for three Business Days and
thereafter at the Canadian Base Rate plus 1.0% or, if less,
at the customary rate set by the Canadian Administrative
Agent for the correction of errors among banks, in the case
of any Canadian Dollar Loan, the Bank Bill Swap Rate for a
one month Interest Period, in the case of any Australian
Dollar Loans, the Alternate Base Rate, in the case of any
Dollar Loan made by any U.S. Lender or Australian Lender,
the U.S. Base Rate (Canada), in the case of any Dollar Loan
made by any Canadian Lender, or the applicable Gold Rate, in
the case of any Gold Loan. If such Lender does not pay such
corresponding amount forthwith upon the Applicable
Administrative Agent's demand therefor, the Applicable
Administrative Agent shall promptly notify the applicable
Borrower and such Borrower shall immediately pay such
corresponding amount to the Applicable Administrative Agent
together with interest thereon, for each day from such
Funding Date until the date such amount is paid to the
Applicable Administrative Agent, at the rate then applicable
to Canadian Base Rate Loans plus 1.0% or, if less, at the
customary rate set by the Canadian Administrative Agent for
the correction of errors among banks, in the case of any
Canadian Dollar Loan, the rate then applicable to the Bank
Bill Rate Swap Loans for a one month Interest Period in the
case of any Australian Dollar Loan, the rate then applicable
to Base Rate Loans, in the case of any Dollar Loan or the
applicable Gold Rate, in the case of any Gold Loan. In all
of the foregoing instances, such interest in respect of any
Gold Loan shall be payable in Dollars and shall be
calculated daily in accordance with the provisions of
subsection 2.2F. Nothing in this subsection 2.1C shall be
deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights that
any Borrower may have against any Lender as a result of any
default by such Lender hereunder.
(v) Confirmation of Delivery, Risk of Loss, Delivery Charges.
Unless the Administrative Agent receives notice from the U.S.
Borrower within seven Business Days of U.S. Borrower's receipt
of any Gold, the quantity and quality of the Gold so received
shall be deemed to be as set forth in the Administrative
Agent's delivery order. If there is any discrepancy in the
amount or quality of Gold actually Delivered, the amount of
such difference shall be settled in Dollars (based on the
Dollar Equivalent on the date of Delivery of the Gold required
to be advanced hereunder and the Gold actually Delivered)
promptly after the Delivery thereof. U.S. Borrower assumes all
risk of loss, theft or detention of or damage to any Gold
Delivered hereunder from the date U.S. Borrower receives
Delivery of such Gold until the date of its return by Delivery
to the Administrative Agent. U.S. Borrower shall pay all costs
and charges (including costs and expenses of collection,
shipment, cartage, warehousing, packaging, refining,
converting or insurance and any applicable location premiums)
directly relating to the physical Delivery of Gold pursuant to
this Agreement incurred on and after request for Delivery of
Gold by U.S. Borrower until return of Gold by U.S. Borrower at
the required location.
42
D. Note Option. If so requested by any Lender by written
notice to the applicable Borrower (with a copy to Administrative Agent), the
Borrower to whom such request is made shall execute and deliver to such Lender
(within three Business Days of such Borrower's receipt of such notice) a
promissory note substantially in the form of Exhibit IV-A to this Agreement to
evidence such Lender's Canadian Loans, in the form of Exhibit IV-B or Exhibit
IV-C to this Agreement to evidence such Lender's Australian Loans, in the form
of Exhibit IV-D to this Agreement to evidence such Lender's U.S. Loans (other
than Gold Loans), or a Grid Gold Acknowledgement in the form of Exhibit V to
this Agreement to evidence such Lender's Gold Loans.
E. Risk Participations. The Lenders intend that after an
acceleration of the Obligations pursuant to Section 7, the ratio for each
Lending Unit of the aggregate Exposure of the Borrowers to such Lending Unit to
the aggregate Exposure of the Borrowers to all Lending Units shall equal such
Lending Unit's Pro Rata Share. Accordingly, immediately upon the acceleration of
the Obligations pursuant to Section 7, each Canadian Loan, each Australian Loan
and each Obligation relating thereto shall be deemed to be a Dollar Loan in an
amount equal to the Dollar Equivalent of such Canadian Loan, Australian Loans or
other Obligations, as applicable, and accordingly the liability of the Borrowers
to pay and the right of the Lenders to receive payment of all Canadian Loans,
Australian Loans and Obligations relating thereto shall thereupon be to pay or
to receive, respectively, Dollar in the amounts so determined. At such time, the
Administrative Agent shall determine for which Lending Units, if any, the ratio
of the aggregate Exposure of the Borrowers to such Lending Unit to the aggregate
Exposure of the Borrowers to all Lending Units is less than such Lending Unit's
Pro Rata Share (such Lending Unit is herein called "Purchasing Lending Unit"),
and for which Lending Units, if any, the ratio of the aggregate exposure of the
Borrowers to such Lending Unit to the aggregate Exposure of the Borrowers to all
Lending Units is greater than such Lending Unit's Pro Rata Share (such Lending
Unit is herein called a "Selling Lending Unit). Promptly after such
determination is made, notwithstanding the allocation of the Commitment of any
Lending Unit as among the Canadian Commitments, the Australian Commitments and
the U.S. Commitments, each Purchasing Lending Unit shall purchase from the
Selling Lending Units, and each Selling Lending Unit shall sell to each
Purchasing Lending Unit, for cash and without representation or warranty, a
portion of the outstanding Loans from such Selling Lending Unit, and if
necessary to achieve the objective of this Section, each Purchasing Lending Unit
shall also purchase risk participations in respect of a portion of such Selling
Lending Unit's liability for outstanding Bankers' Acceptances, Letters of Credit
and Gold Loans, such that each Lending Unit's share of the aggregate Exposure of
the Borrowers shall equal its Pro Rata Share. The amounts and particulars of the
purchases and sales of the Loans, Bankers' acceptances, Letters of Credit and
Gold Loans for the purpose of the foregoing arrangements shall be determined in
each case by the Administrative Agent upon consultation with the applicable
Lending Units, and the administrative Agent shall have the power to execute any
documentation as attorney for any Lender in order to complete any transaction
required by this Section. The foregoing arrangements may require a Borrower to
make payments pursuant to Section 10.7 that it would not have been required to
make in the absence of such arrangements.
2.2 Interest on the Loans.
43
A. Rate of Interest. Subject to the provisions of subsections
2.6 and 10.7, each Loan shall bear interest on the unpaid principal amount
thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to: (i) the Alternate Base Rate,
the U.S. Base Rate (Canada), the Eurodollar Rate or the Adjusted Eurodollar Rate
in the case of any Dollar Loan; (ii) the Canadian Base Rate in the case of any
Canadian Dollar Loan; (iii) the Bank Bill Swap Rate in the case of an Australian
Dollar Loan; or (iv) the Gold Rate in the case of any Gold Loan. The applicable
basis for determining the rate of interest with respect to any Loan shall be
selected by the applicable Borrower initially at the time a Notice of Borrowing
is given with respect to such Loan pursuant to subsection 2.1B. The basis for
determining the interest rate with respect to any Loan may be changed from time
to time pursuant to subsection 2.2D.
Subject to the provisions of subsections 2.2E and 10.7, the
Loans shall bear interest through maturity as follows:
(i) if a U.S. Base Rate Loan, then at the Alternate Base
Rate per annum;
(ii) if a Canadian Base Rate Loan, then at the Canadian Base
Rate per annum;
(iii) if a U.S. Base Rate (Canada) Loan, then at the U.S.
Base Rate (Canada) per annum;
(iv) if a Bank Bill Swap Rate Loan, then at the sum of the
Bank Bill Swap Rate plus the Applicable Margin per annum;
(v) if a Eurodollar Rate Loan that is a U.S. Loan or an
Australian Loan, then at the sum of the Adjusted Eurodollar
Rate plus the Applicable Margin per annum;
(vi) if a Eurodollar Rate Loan that is a Canadian Loan, then
at the sum of the Eurodollar Rate plus the Applicable Margin
per annum; or
(vii) if a Gold Loan, then at the Gold Rate per annum;
B. Interest Periods. In connection with each Eurodollar Rate
Loan, each Bank Bill Swap Rate Loan and each Gold Loan, the applicable Borrower
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an Interest Period to be
applicable to such Loan; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan,
Bank Bill Swap Rate Loan, or Gold Loan shall commence on the
Funding Date of such Loan, in the case of a Loan initially
made as a Eurodollar Rate Loan, a Bank Bill Swap Rate Loan, or
a Gold Loan, or on the date specified in the applicable Notice
of Conversion/Continuation, in the case of any Loan converted
into a Eurodollar Rate Loan;
44
(ii) in the case of immediately successive Interest Periods
applicable to any Eurodollar Rate Loan, Bank Bill Swap Rate
Loan, or Gold Loan continued as such pursuant to a Notice of
Conversion/Continuation, each such successive Interest Period
shall commence on the day on which the preceding Interest
Period expires;
(iii) if an Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day; provided that, in the
case of a Eurodollar Rate Loan, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a
day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next
preceding Business Day;
(iv) any Interest Period for a Eurodollar Rate Loan that
begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall,
subject to clause (v) of this subsection 2.2B, end on the last
Business Day of a calendar month;
(v) no Interest Period with respect to any Loan shall extend
beyond the Commitment Termination Date; and
(vi) there shall be no more than five Interest Periods
relating to Eurodollar Rate Loans outstanding at any time,
there shall be no more than five Interest Periods relating to
Bank Bill Swap Rate Loans outstanding at any time and there
shall be no more than five Interest Periods relating to Gold
Loans outstanding at any time.
C. Interest Payments; Currencies. Subject to the provisions of
subsection 2.2E, interest on each Loan shall be payable in arrears on and to
each Interest Payment Date applicable to that Loan, upon any prepayment of that
Loan (to the extent accrued on the amount being prepaid) and at maturity. All
payments of interest shall be paid to the Applicable Administrative Agent in
accordance with the provisions of subsection 2.4B.
Interest payable on any Loan denominated in a currency shall
be payable in the same currency. Interest payable on any Gold Loan shall be
payable, at U.S. Borrower's option, in (a) Gold or (b) Dollars in amounts
determined in accordance with the provisions of 2.2F. U.S. Borrower shall advise
Administrative Agent of its intention to pay interest on Gold Loans in Gold in
the applicable Notice of Borrowing or Notice of Conversion/Continuation;
provided that Administrative Agent shall, notwithstanding any request of U.S.
Borrower to pay such interest in Gold, have the right to require that interest
with respect to any Gold Loan be paid in Dollars by notice given on or before
the related Funding Date in the case of the initial Interest Period, and prior
to the date of continuation, in the case of a continuation. If U.S. Borrower
fails timely to advise Administrative Agent of its desire to pay accrued
interest in Gold, U.S. Borrower shall be deemed to have elected to pay such
interest in Dollars.
D. Conversion or Continuation. Subject to the provisions of
subsection 2.6, (i) each of U.S. Borrower and Canadian Borrower shall have the
option to convert at any time all
45
or any part of its outstanding Dollar Loans equal to $5,000,000 and integral
multiples of $1,000,000 in excess of that amount from Dollar Loans bearing
interest at a rate determined by reference to one basis to Dollar Loans bearing
interest at a rate determined by reference to an alternative basis, (ii) each
Borrower shall have the option, upon the expiration of any Interest Period
applicable to a Eurodollar Rate Loan, to continue all or any portion of such
Eurodollar Rate Loan equal to $5,000,000 and integral multiples of $1,000,000 in
excess of that amount as a Eurodollar Rate Loan, (iii) Australian Borrowers
shall have the option, upon the expiration of any Interest Period applicable to
a Bank Bill Swap Rate Loan, to continue all or any portion of such Bank Bill
Swap Rate Loan equal to A$5,000,000 and integral multiples of A$1,000,000 in
excess of that amount as a Bank Bill Swap Rate Loan, (iv) U.S. Borrower shall
have the option, upon the expiration of any Interest Period applicable to a Gold
Loan, to continue all or any portion of such Gold Loan equal to 10,000 Ounces
and integral multiples of 2,000 Ounces in excess of that amount as a Gold Loan;
provided, however, that a Eurodollar Rate Loan may only be converted into a U.S.
Base Rate Loan or a U.S. Base Rate (Canada) Loan, as applicable, on the
expiration date of an Interest Period applicable thereto; provided further that,
subject to the following proviso, no Loan may be made as or converted into a
U.S. Base Rate Loan or a U.S. Base Rate (Canada) Loan during the period from
December 24 of any year to and including January 7 of the immediately succeeding
year for the purpose of investing in securities bearing interest at a rate
determined by reference to any other basis for the purpose of arbitrage or
speculation; and provided still further that no Loan may be converted into, or
continued as, a Eurodollar Rate Loan (except that Australian Borrowers may
continue Eurodollar Rate Loans with a period of one month), or a Bank Bill Swap
Rate Loan with a period in excess of one month, or a Gold Loan at any time that
a Potential Event of Default or an Event of Default has occurred and is
continuing.
The applicable Borrower shall deliver a Notice of
Conversion/Continuation (i) in the case of a conversion to a U.S. Base Rate
Loan, to Administrative Agent no later than 12:00 Noon (New York time) at least
one Business Day in advance of the proposed conversion/continuation date, (ii)
in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan
made to U.S. Borrower or a continuation of a Gold Loan made to U.S. Borrower, to
Administrative Agent, no later than 12:00 Noon (New York time) at least three
Business Days in advance of the proposed conversion/continuation date, (iii) in
the case of a conversion to, or a continuation of, a Eurodollar Rate Loan made
to Canadian Borrower, to Canadian Administrative Agent and Administrative Agent
no later than 11:00 A.M. (Toronto time) at least three Business Days in advance
of the proposed conversion/continuation date, (iv) in the case of a conversion
to a U.S. Base Rate (Canada) Loan, to Canadian Administrative Agent and
Administrative Agent no later than 11:00 A.M. (Toronto time) at least one
Business Day in advance of the proposed conversion/continuation date, (v) in the
case of a continuation of a Eurodollar Rate Loan made to Australian Borrowers,
or a continuation of a Bank Bill Swap Rate Loan made to Australian Borrowers, to
Australian Administrative Agent and Administrative Agent no later than 12:00
Noon (Sydney time) at least three Business Days in advance of the proposed
conversion/continuation date. A Notice of Conversion/Continuation shall specify
(i) the applicable Borrower, (ii) the proposed conversion/continuation date
(which shall be a Business Day), (iii) the amount of the Loan to be
converted/continued, (iv) the nature of the proposed conversion/continuation,
(v) in the case of a conversion to or a continuation of a Eurodollar Rate Loan
or a continuation of a Bank Bill Swap Rate Loan or a Gold Loan, the requested
Interest
46
Period, (vi) in the case of the continuation of a Gold Loan, whether
U.S. Borrower is requesting to pay interest in Dollars or in Gold, and if
payable in Dollars, the basis for calculating the amount according to one of the
alternatives specified in subsection 2.2F, and (vii) in the case of a conversion
to or a continuation of a Eurodollar Rate Loan (except by Australian Borrowers)
or a continuation of a Gold Loan, that no Potential Event of Default or Event of
Default has occurred and is continuing. In lieu of delivering the
above-described Notice of Conversion/Continuation, the applicable Borrower may
give Administrative Agent and the Applicable Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent and the Applicable Administrative Agent on or before the proposed
conversion/continuation date.
Neither any Agent nor any Lender shall incur any liability to
any Borrower in acting upon any telephonic notice referred to above that
Administrative Agent or the Applicable Administrative Agent believes in good
faith to have been given by a duly authorized officer or other person authorized
to act on behalf of such Borrower or for otherwise acting in good faith under
this subsection 2.2D, and upon conversion or continuation of the applicable
basis for determining the interest rate with respect to any Loans in accordance
with this Agreement pursuant to any such telephonic notice, such Borrower shall
have effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and
2.6G, a Notice of Conversion/Continuation for conversion to, or continuation of
a Eurodollar Rate Loan or a continuation of a Bank Bill Swap Rate Loan or a Gold
Loan (or telephonic notice in lieu thereof) shall be irrevocable when given, and
the Borrower delivering such Notice of Conversion/Continuation shall be bound to
effect a conversion or continuation in accordance therewith.
If any Borrower fails to submit a Notice of
Conversion/Continuation with respect to any maturing Eurodollar Rate Loans or
Bank Bill Swap Rate Loans in accordance with the forgoing provisions of this
subsection 2.2D, then upon the expiration of the Interest Period for such
Eurodollar Rate Loans or Bank Bill Swap Rate Loans, as applicable, such Loans
shall (i) if no Event of Default or Potential Event of Default shall have
occurred and be continuing, automatically continue as Eurodollar Rate Loans or
Bank Bill Swap Rate Loans, as applicable, in each case with an Interest Period
of one month and (ii) if an Event of Default or Potential Event of Default shall
have occurred and be continuing, automatically be converted into U.S. Base Rate
Loans or U.S. Base Rate (Canada) Loans, as applicable, in the case of U.S. Loans
and Canadian Loans, or continue as Eurodollar Rate Loans or Bank Bill Swap Rate
Loans with an Interest Period of one month in the case of Australian Loans. If
U.S. Borrower fails to submit a Notice of Conversion/Continuation with respect
to any maturing Gold Loans in accordance with the forgoing provisions of this
subsection 2.2D, then upon the expiration of the Interest Period for such Gold
Loans, such Loans shall automatically be continued as Gold Loans having a 30-day
Interest Period. Upon the continuation (including automatic continuation) of any
Loan, the Applicable Administrative Agent shall notify Company and the
applicable Borrower of such continuation; provided, however, that the failure to
give such notice shall not limit or otherwise
47
affect the obligations of Company or any Borrower under this Agreement or any
other Loan Document.
E. Post-Maturity Interest. Any principal payments on the Loans
not paid when due and, to the extent permitted by applicable law, any interest
payments on the Loans owed hereunder not paid when due, in each case whether at
stated maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand
at a rate which is 2% per annum in excess of the interest rate otherwise payable
under this Agreement in respect of such Loans (or in the case of any fees or
other amounts, a rate which is 2% per annum in excess of the interest rate
otherwise payable under this Agreement for U.S. Base Rate Loans); provided that,
in the case of Eurodollar Rate Loans or Gold Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is
effective, such Eurodollar Rate Loans or Gold Loans (in the case of Gold Loans,
by converting the outstanding amount of such Loans into Dollars based on the
Price of Gold as in effect on such expiration date) shall thereupon become U.S.
Base Rate Loans or U.S. Base Rate (Canada) Loans, as applicable, and shall
thereafter bear interest payable upon demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement at such time
for U.S. Base Rate Loans or U.S. Base Rate (Canada) Loans, respectively, as
applicable, except that in the case of Australian Borrowers, such Eurodollar
Rate Loans shall be continued as Eurodollar Rate Loans with an Interest Period
of one month, and provided further that in the case of Bank Bill Swap Rate
Loans, such Bank Bill Swap Rate Loans shall continue as Bank Bill Swap Rate
Loans with an Interest Period of one month. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of any
Agent or any Lender.
F. Computation of Interest. Interest on the Loans denominated
in currency shall be computed, in the case of Base Rate Loans and Bank Bill Swap
Rate Loans, on the basis of a 365-day or 366-day year, as the case may be, or in
the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case
for the actual number of days elapsed in the period during which it accrues, and
shall be determined daily with respect to the amount of such Loans outstanding
each day during such period. Interest on each Gold Loan shall be computed on the
basis of a 360-day year and the actual number of days elapsed in the period
during which it accrues and shall be determined daily (i) in the case of
interest to be paid in Gold, with respect to the number of Ounces of Gold
outstanding under such Gold Loan on each day during such period, or (ii) in the
case of interest to be paid in Dollars, with respect to the average of the daily
values (such values being equal to the number of Ounces of such Gold Loan
multiplied by the Price of Gold) of such Gold Loan, in Dollar Equivalents
(determined daily unless U.S. Borrower requests in its Notice of Borrowing or
Notice of Conversion/Continuation that the Price of Gold be fixed at the Price
of Gold on the second Business Day prior to the related Interest Period for the
purpose of determining accrued interest during the applicable Interest Period
and Requisite Lenders have not objected on or before the commencement of such
Interest Period, in their sole discretion, to use such fixed price for such
purpose during such period), for each day during such period. In computing
interest on any Loan, the date of the making of such Loan or the first day of an
Interest
48
Period applicable to such Loan or, with respect to a Loan being
converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar
Rate Loan, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with respect
to a Loan being converted to a Eurodollar Rate Loan, the date of conversion to
such Eurodollar Rate Loan, shall be excluded; provided that if a Loan is repaid
on the same day on which it is made, one day's interest shall be paid on that
Loan.
For the purposes of this Agreement, whenever interest is
calculated on the basis of a year of 360 days, each rate of interest determined
pursuant to such calculation expressed as an annual rate for the purposes of the
Interest Act (Canada) is equivalent to such rate as so determined multiplied by
the actual number of days in the calendar year in which the same is to be
ascertained and divided by 360.
2.3 Fees.
A. Commitment Fees. Borrowers jointly and severally agree to
pay to Administrative Agent (i) for distribution to each Canadian Lender, in
proportion to that Lender's Canadian Lender Pro Rata Share of the Canadian
Allocation, commitment fees for the period from and after the Effective Date to
and excluding the Commitment Termination Date, equal to the quarterly average of
the daily excess of the Canadian Allocation over the Canadian Commitment Usage
(in Dollar Equivalents) multiplied by the applicable Commitment Fee Percentage
per annum, (ii) for distribution to each Australian Lender, in proportion to
that Lender's Australian Lender Pro Rata Share of the Australian Allocation,
commitment fees for the period from and after the Effective Date to and
excluding the Commitment Termination Date equal to the quarterly average of the
daily excess of the Australian Allocation over the Australian Commitment Usage
(in Dollar Equivalents) multiplied by the applicable Commitment Fee Percentage
per annum, and (iii) for distribution to each U.S. Lender, in proportion to that
Lender's U.S. Lender Pro Rata Share of the U.S. Allocation, commitment fees for
the period from and after the Effective Date to and excluding the Commitment
Termination Date, equal to the quarterly average of the daily excess of the U.S.
Allocation over the U.S. Commitment Usage multiplied by the applicable
Commitment Fee Percentage per annum; all such commitment fees to be payable in
Dollars, quarterly in arrears on March 1, June 1, September 1, and December 1 of
each year and on the Commitment Termination Date and to be calculated on the
basis of a 360-day year and the actual number of days elapsed; provided that
notwithstanding the foregoing, the commitment fees payable to each Canadian
Lender shall be paid to the Canadian Administrative Agent. Reductions in the
amounts available for borrowing under the Commitments arising from the operation
of the limitations set forth in clauses (a), (b), (c), (d), (e), (f) (g), (h),
(i) and (j) of subsection 2.1A(v) shall not constitute usages of Commitments for
purposes of this subsection 2.3A and shall not reduce the amount of the
commitment fees that are payable under this subsection 2.3A.
B. Other Fees. Company and Borrowers agree to pay to
Administrative Agent, Arranger and Issuing Lenders the fees agreed to, and in
the amounts and at the times, set forth in writing among Company, Borrowers,
Administrative Agent, Arranger and Issuing Lenders.
49
2.4 Prepayments and Reductions in Commitments; General Provisions Regarding
Payments.
A. Prepayments; Reductions in Commitments; Cash
Collateralization of Standby Letters of Credit and Bankers' Acceptances.
(i) Voluntary Prepayments. Each Borrower may, upon not less
than one Business Day's (in the case of Base Rate Loans), two
Business Days' (in the case of Bank Bill Swap Rate Loans) or
three Business Days' (in the case of Eurodollar Rate Loans or
Gold Loans) prior written notice to the Applicable
Administrative Agent and Administrative Agent (which notice
the Applicable Administrative Agent will promptly transmit by
telecopy, telegram, telex or telephone to each U.S. Lender,
Canadian Lender or Australian Lender, as appropriate), at any
time and from time to time prepay any Loans in whole or in
part on any Business Day (a) in an aggregate minimum amount of
$2,500,000 and integral multiples of $500,000 in excess of
that amount in the case of Dollar Loans, (b) in an aggregate
minimum amount of Cdn.$2,500,000 and integral multiples of
Cdn.$500,000 in excess of that amount in the case of Canadian
Dollar Loans, (c) in an aggregate minimum amount of
A$2,500,000 and integral multiples of A$500,000 in excess of
that amount in the case of Australian Dollar Loans, or (d) in
an aggregate minimum amount of 10,000 Ounces and integral
multiples of 2,000 Ounces in excess of that amount in the case
of Gold Loans; provided, however, that if a Eurodollar Rate
Loan, a Bank Bill Swap Rate Loan or a Gold Loan is prepaid on
a date other than the last day of the Interest Period
applicable thereto, the Borrower making such prepayment shall
be liable for any payments required by subsection 2.6D. Notice
of prepayment having been given as aforesaid, the principal
amount of the Loans specified in such notice shall become due
and payable on the prepayment date specified therein. Any such
voluntary prepayment shall be applied as specified in
subsection 2.4A(iv).
(ii) Voluntary Reductions of Commitments. Borrowers may, upon
not less than three Business Days' prior written notice to
Administrative Agent (which notice Administrative Agent will
promptly transmit by telecopy, telegram, telex or telephone to
each Lender), at any time and from time to time terminate in
whole or permanently reduce in part, without premium or
penalty, the Overall Commitments in an amount up to the amount
by which the Overall Commitments exceed the Total Utilization
of Overall Commitments at the time of such proposed
termination or reduction; provided that any such partial
reduction of the Overall Commitments shall be in an aggregate
minimum amount of $2,500,000 and integral multiples of
$500,000 in excess of that amount; and provided further that
no reduction shall reduce the Canadian Allocation to any
amount that is less than the Canadian Commitment Usage, the
Australian Allocation to any amount that is less than the
Australian Commitment Usage or the U.S. Allocation to an
amount that is less than the U.S. Commitment Usage. Borrowers'
notice to Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or
50
reduction, the amount of any partial reduction and the
allocation of any reduction among the Canadian Allocation,
the Australian Allocation and the U.S. Allocation, and such
termination or reduction of the Overall Commitments shall be
effective on the date specified in Borrowers' notice and
shall reduce the Commitment of each Lending Unit
proportionately to its Pro Rata Share and such partial
reduction and allocation of such reduction shall be made so
that (i) the Australian Allocation shall not exceed the
Australian Commitment, (ii) the Canadian Allocation shall
not exceed the Canadian Commitment and (iii) the U.S.
Allocation shall not exceed the U.S. Commitment.
(iii) Mandatory Prepayments of Loans.
(a) If on any date (A) the sum of (1) the outstanding
amount of all Loans denominated in currency (valued in Dollar
Equivalents as of the most recent Date of Determination), (2)
the BA Usage plus the Canadian Letter of Credit Usage (valued
in Dollar Equivalents as of the most recent Date of
Determination), (3) the Australian Letter of Credit Usage
(valued in Dollar Equivalents as of the most recent Date of
Determination), (4) the U.S. Letter of Credit Usage and (5)
the outstanding amount of all Gold Loans (valued in Dollar
Equivalents based upon the Price of Gold as of such date)
(such sum being the "Aggregate Dollar Equivalent Loan Amount")
exceeds the Overall Commitments in effect on such date, (B)
the portion of the Aggregate Dollar Equivalent Loan Amount
relating to the Canadian Borrower exceeds the Canadian
Allocation, (C) the portion of the Aggregate Dollar Equivalent
Loan Amount relating to the Australian Borrowers exceeds the
Australian Allocation, or (D) the portion of the Aggregate
Dollar Equivalent Loan Amount relating to the U.S. Borrower
exceeds the U.S. Allocation, then, subject to the provisions
of the immediately succeeding sentence, Borrowers shall prepay
Loans and/or reduce the outstanding BA Usage, Canadian Letter
of Credit Usage, Australian Letter of Credit Usage, or U.S.
Letter of Credit Usage (it being agreed and understood that,
for the purposes of this subsection 2.4A(iii), BA Usage,
Canadian Letter of Credit Usage, Australian Letter of Credit
Usage and U.S. Letter of Credit Usage shall be reduced to the
extent that the applicable Borrower has cash collateralized
its reimbursement obligations under outstanding Bankers'
Acceptances or Letters of Credit pursuant to arrangements
satisfactory to Administrative Agent and the applicable
Issuing Lender) in an amount equal to any such excess;
provided that if any such excess exists, and to the extent
that any such excess results from an average net increase of
less than 50% in the outstanding amount of all Gold Loans
(valued in Dollar Equivalents based upon the Price of Gold as
of such date) since the second Business Day prior to the
related Gold Advance Dates for such Gold Loans because of
changes in the Price of Gold, until the Total Utilization of
Overall Commitments equals 125% of the Overall Commitments,
Borrowers shall not be so required to prepay Loans and/or
reduce the outstanding BA Usage, Canadian Letter of Credit
Usage, Australian Letter of Credit Usage or U.S. Letter of
Credit Usage to such extent. Notwithstanding the foregoing,
Borrowers shall not be required to prepay the Gold Loans if
51
Borrowers pledge cash, U.S. Treasury securities or Gold as
collateral to Administrative Agent for the benefit of the
Lenders in an amount equal to the amount of Gold Loans that
would otherwise be required to be prepaid in accordance with
this subsection 2.4A(iii) pursuant to arrangements in form and
substance satisfactory to Administrative Agent. Any such
mandatory prepayments shall be applied as specified in
subsection 2.4A(iv)(c).
(b) Borrowers shall also prepay the Loans as required
pursuant to subsection 10.25 upon the occurrence of a Company
Change of Control.
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments. Any
voluntary prepayments by Borrowers pursuant to subsection
2.4A(i) shall be applied to the Loans of each Borrower as
specified by Borrowers;
(b) Application of Mandatory Prepayments. Any
mandatory prepayments by Borrowers pursuant to subsection
2.4A(iii)(b) shall be applied to repay outstanding Loans and to
reduce permanently the Overall Commitments (allocated ratably
to the Canadian Allocation, the Australian Allocation and the
U.S. Allocation unless otherwise specified by Borrowers); and
(c) Application of Prepayments to Base Rate Loans,
Bank Bill Swap Rate Loans and Eurodollar Rate Loans. Any
prepayment by or for the benefit of a Borrower shall be applied
first to Base Rate Loans of such Borrower to the full extent
thereof before application to Bank Bill Swap Rate Loans and
Eurodollar Rate Loans of such Borrower, in each case in a
manner which minimizes the amount of any payments required to
be made by the applicable Borrower pursuant to subsection 2.6D.
B. General Provisions Regarding Payments.
(i) Manner and Time of Payment. Borrowers shall make all
payments in respect of any Loan denominated in any currency in
the same currency, and shall make all payments in respect of
Gold Loans in Dollars or, if a Borrower so elects and, with
respect to interest, the U.S. Administrative Agent does not
require payment in Dollars, Gold. If U.S. Borrower does not
deliver to the Administrative Agent at least two Business
Days' prior written notice of its intention to repay a Gold
Loan in Gold, U.S. Borrower shall be deemed to have elected to
repay such Loan in Dollars. If the principal amount of any
Gold Loan is to be repaid in Dollars, the corresponding amount
of Dollars to be repaid shall equal the Dollar Equivalent of
the amount of Gold constituting such Gold Loan determined as
of the second Business Day preceding the repayment date.
(a) Currency Payments by U.S. Borrower. All currency
payments by U.S. Borrower of principal and interest in respect
of (1) Dollar Loans, (2) Gold
52
Loans to be repaid in Dollars, (3) Letters of Credit, and
(4) fees and other Obligations hereunder and under any Notes
or Grid Gold Acknowledgements shall be made in Dollars, in
same day funds and without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 Noon (New York
time) on the date due at Administrative Agent's Lending
Office to the U.S. Borrower Account.
(b) Payments by Canadian Borrower. All payments by
Canadian Borrower of principal and interest in respect of (1)
Loans, (2) Letters of Credit, (3) Bankers' Acceptances, and (4)
any other fees and Obligations hereunder and under any Notes
shall be made in the same currency as incurred, in same day
funds and without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Canadian
Administrative Agent not later than 12:00 Noon (Toronto time)
on the date due at Canadian Administrative Agent's Lending
Office.
(c) Payments by Australian Borrowers. All payments by
Australian Borrowers of principal and interest in respect of
(1) Loans, (2) Letters of Credit, and (3) any other fees and
Obligations hereunder and under any Notes shall be made in the
same currency as incurred, in same day funds and without
defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Australian Administrative Agent not
later than 12:00 Noon (Sydney time) on the date due at
Australian Administrative Agent's Lending Office.
(d) Gold Payments. All payments of Gold shall be made
by Delivery of such Gold by U.S. Borrower to the Administrative
Agent's account with J.P. Morgan, London, England, or such
other bullion depository as may be designated by the Applicable
Administrative Agent from time to time, before 12:00 Noon
(London time) on the day specified for payment.
Funds or Gold received by the Applicable Administrative Agent or
Administrative Agent after the times specified above on the due dates
specified above shall be deemed to have been paid by Borrowers on the
next succeeding Business Day.
|(ii) Application of Payments to Principal and Interest. All
payments in respect of the principal amount of any Loan shall
include payment of accrued interest on the principal amount
being repaid or prepaid, and all such payments shall be
applied to the payment of interest before application to
principal.
|(iii) Apportionment of Payments. Aggregate principal and
interest payments shall be apportioned among all outstanding
Loans to which such payments relate, in each case
proportionately to each Lending Unit's respective Australian
Lender Pro Rata Share, Canadian Lender Pro Rata Share or U.S.
Lender Pro Rata share, as applicable, of such Loans. Subject
to the last sentence of subsection 2.7D, the Applicable
Administrative Agent or Administrative Agent, as the case may
be, shall promptly distribute to each Lender, at its Lending
Office or at such other address as such Lender may request,
its proportionate share of all such payments received by the
53
Applicable Administrative Agent (or any Issuing Lender) or
Administrative Agent, as the case may be, and the commitment
fees of such Lender when received by the Applicable
Administrative Agent or Administrative Agent, as the case may
be, pursuant to subsection 2.3. Notwithstanding the foregoing
provisions of this subsection 2.4B(iii), if, pursuant to the
provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender
or if any Affected Lender makes U.S. Base Rate Loans in lieu
of its share of any Eurodollar Rate Loans, the Applicable
Administrative Agent or Administrative Agent, as the case may
be, shall give effect thereto in apportioning payments
received thereafter.
|(iv) Payments on Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not
a Business Day, such payment shall be made on the next
succeeding Business Day, but not later than the Commitment
Termination Date, and such extension of time shall be included
in the computation of the payment of interest hereunder or of
the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note or Grid Gold Acknowledgement held by it,
or any part thereof (other than by granting participations
therein), that Lender will make a notation thereon of all
Loans evidenced by that Note or Grid Gold Acknowledgement and
all principal payments previously made thereon and of the date
to which interest thereon has been paid; provided that the
failure to make (or any error in the making of) a notation of
any Loan made under such Note or Grid Gold Acknowledgement
shall not limit, increase or otherwise affect the obligations
of any Borrower hereunder or under such Note or Grid Gold
Acknowledgement with respect to any Loan or any payments of
principal or interest on such Note or Grid Gold
Acknowledgement.
2.5 Use of Proceeds.
A. Loans. The proceeds of the initial Loans shall be used by
Borrowers to repay all amounts owing under the Existing Credit Agreement on the
Effective Date and repay any amounts owing under the Plutonic Credit Facility
and the proceeds of the Loans shall be used by Borrowers to provide for the
working capital requirements of Borrowers and their respective Subsidiaries, to
provide for general corporate purposes and to pay fees and expenses related to
the transactions contemplated hereby.
B. Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by any Borrower, Company or any of
its Subsidiaries in any manner that might cause the borrowing or the application
of such proceeds to violate Regulation T, Regulation U or Regulation X of the
Board or any other regulation of the Board or to violate the Exchange Act, in
each case as in effect on the date or dates of such borrowing and such use of
proceeds.
54
2.6 Special Provisions Governing Eurodollar Rate Loans, Bank Bill Swap Rate
Loans and Gold Loans.
Notwithstanding any other provision of this Agreement to the
contrary, the provisions set forth in this subsection 2.6 shall govern with
respect to Eurodollar Rate Loans, Bank Bill Swap Rate Loans and Gold Loans as to
the matters covered.
A. Determination of Eurodollar Rate, Bank Bill Swap Rate and Gold
Rate.
(i) Eurodollar Rate Loans. As soon as practicable after 10:00
A.M. (New York time) on any Interest Rate Determination Date
with respect to any Eurodollar Rate Loan, Administrative Agent
shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the
interest rate that shall apply to such Eurodollar Rate Loan
for which an interest rate is then being determined for the
applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to
the applicable Borrower and each applicable Lender.
|(ii) Gold Loans. As soon as practicable after 10:00 A.M. (New
York time) on the Interest Rate Determination Date with
respect to any Gold Loan, Administrative Agent shall determine
(which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) the interest rate
that shall apply to such Gold Loan for which an interest rate
is then being determined for the applicable Interest Period,
and Administrative Agent shall promptly give notice thereof
(in writing or by telephone confirmed in writing) to U.S.
Borrower and each applicable Lender.
|(iii) Bank Bill Swap Rate Loans. As soon as practicable after
11:00 A.M. (Sydney time) on any proposed Funding Date or
proposed continuation date, as applicable, with respect to any
Bank Bill Swap Rate Loan, Australian Administrative Agent
shall determine (which determination shall, absent manifest
error, be final, conclusive and binding on all parties) the
interest rate that shall apply to such Bank Bill Swap Rate
Loan for which an interest rate is then being determined for
the applicable Interest Period and shall promptly give notice
thereof (in writing or by telephone confirmed in writing) to
Australian Borrowers and each applicable Lender.
B. Inability to Determine Applicable Interest Rate. If the
Applicable Administrative Agent shall have determined (which determination shall
be final and conclusive and binding upon all parties hereto) on any Interest
Rate Determination Date that by reason of circumstances affecting the London
interbank market or because no Reference Lender is able to provide its quotation
of a rate, in the case of Eurodollar Rate Loans, or affecting the international
precious metals markets or because no Gold Rate Reference Lender is able to
provide its quotation of a rate, in the case of Gold Loans, adequate and fair
means do not exist for ascertaining the interest rate applicable to such Loans,
the Applicable Administrative Agent shall on such date give notice (by telecopy
or by telephone confirmed in writing) to Borrowers and each Lender of such
55
determination, whereupon (i) no Loans may be made as, or continued or converted
to, Eurodollar Rate Loans or made or continued as Gold Loans until such time as
the Applicable Administrative Agent notifies Borrowers and Lenders that the
circumstances giving rise to such notice no longer exist, and (ii) any Notice of
Borrowing or Notice of Conversion/Continuation given by any Borrower with
respect to the Loans in respect of which such determination was made shall be
deemed to be rescinded by such Borrower.
C. Illegality or Impracticability of Eurodollar Rate Loans,
Bank Bill Swap Rate Loans or Gold Loans. If on any date any Lender shall have
determined (which determination shall be final and conclusive and binding upon
all parties hereto but shall be made only after consultation with Administrative
Agent) that the making, maintaining or continuation of its Eurodollar Rate
Loans, Bank Bill Swap Rate Loans or Gold Loans, as the case may be, (i) has
become unlawful as a result of compliance by such Lender with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the London interbank market (in the case of
Eurodollar Rate Loans), the international precious metals markets (in the case
of Gold Loans), the bills of exchange market (in the case of Bank Bill Swap Rate
Loans) or the position of such Lender in any such market, then, and in any such
event, such Lender shall be an "Affected Lender" and it shall on that day give
notice (by telecopy or by telephone confirmed in writing) to Borrowers and
Administrative Agent of such determination (which notice Administrative Agent
shall promptly transmit to each other Lender). Thereafter, (a) the obligation of
the Affected Lender to make Loans as, or to convert Loans to or continue Loans
as, Eurodollar Rate Loans, Bank Bill Swap Rate Loans or Gold Loans, as the case
may be, shall be suspended until such notice shall be withdrawn by the Affected
Lender, (b) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan, a Bank Bill Swap Rate Loan or a Gold Loan then being
requested by a Borrower pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) (i) a U.S. Base Rate Loan if the Borrower is
the U.S. Borrower, (ii) a U.S. Base Rate (Canada) Loan if the Borrower is
Canadian Borrower, and (iii) if one of the Borrowers is an Australian Borrower,
at the election of such Australian Borrower made within one Business Day of
receipt of notice from the Affected Lender, a Bank Bill Swap Rate Loan with a
period of one month (if that option is available) or a Loan in Dollars bearing
interest at the Australian Administrative Agent's cost of funds as reasonably
determined by Administrative Agent, plus the Applicable Margin (such Loan
bearing interest at the Bank Bill Swap Rate if no timely election is made), (c)
the Affected Lender's obligation to maintain its outstanding Eurodollar Rate
Loans, Bank Bill Swap Rate Loans or Gold Loans, as the case may be (the
"Affected Loans"), shall be terminated at the earlier to occur of the expiration
of the Interest Period then in effect with respect to the Affected Loans or if
earlier when required by law, and (d) the Affected Loans shall automatically
convert on the date of such termination to (i) a U.S. Base Rate Loan if the
Borrower is the U.S. Borrower, (ii) a U.S. Base Rate (Canada) Loan if the
Borrower is Canadian Borrower, and (iii) if one of the Borrowers is an
Australian Borrower, at the election of such Australian Borrower made within one
Business Day of receipt of notice from the Affected Lender, a Bank Bill Swap
56
Rate Loan with a period of one month (if that option is available) or a Loan in
Dollars bearing interest at the Alternate Base Rate (such Loan bearing interest
at the Alternate Base Rate if no timely election is made). Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan, a Bank Bill Swap Rate Loan or a Gold
Loan then being requested by any Borrower pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, such Borrower shall have the option, subject
to the provisions of subsection 2.6D, to rescind such Notice of Borrowing or
Notice of Conversion/Continuation as to all Lenders by giving notice (by
telecopy or by telephone confirmed in writing) to Administrative Agent and the
Applicable Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above (which
notice of rescission the Applicable Administrative Agent shall promptly transmit
to each other applicable Lender). Except as provided in the immediately
preceding sentence, nothing in this subsection 2.6C shall affect the obligation
of any Lender other than an Affected Lender to make or maintain Loans as, or to
convert or continue Loans as, Eurodollar Rate Loans, Bank Bill Swap Rate Loans
or Gold Loans in accordance with the terms of this Agreement. Borrowers shall
have the right upon 20 days' notice to each Lender and upon consent by the
Applicable Administrative Agents, which consent shall not be unreasonably
withheld, and so long as no Potential Event of Default or Event of Default shall
have occurred, to substitute Eligible Assignees for the Affected Lender and any
Lender that belongs to the Affected Lender's Lending Unit hereunder; provided
such substitute Lenders, taken together, will constitute a Lending Unit. If
Borrowers select such substituted Lenders, the Affected Lender, and any other
Lender belonging to the Affected Lender's Lending Unit, shall assign their
Notes, Grid Gold Acknowledgements and rights under this Agreement to such
substitute Lenders in accordance with subsection 10.1B (but without the payment
of any recordation fee) for the amount due on prepayment pursuant to subsection
2.4(A)(i) together with any amounts that may be due pursuant to subsection 2.6D.
D. Compensation For Breakage or Non-Commencement of Interest
Periods. Any Borrower having borrowed, or having delivered a Notice of Borrowing
or a Notice of Conversion/Continuation to request to borrow, convert or
continue, any Eurodollar Rate Loan, Bank Bill Swap Rate Loan or Gold Loan shall
compensate each Lender, upon written request by that Lender (which request shall
set forth the basis for requesting such amounts), for all reasonable losses,
expenses and liabilities (including, without limitation, any interest paid by
that Lender to lenders of funds (or Gold in the case of Gold Loans) borrowed by
it to make or carry its Eurodollar Rate Loans, Bank Bill Swap Rate Loans or Gold
Loans, as the case may be) (including loss of anticipated profits) sustained by
that Lender in connection with the liquidation or re-employment of such funds
(or Gold), which that Lender may sustain: (i) if for any reason (other than a
default by that Lender) the borrowing of the Eurodollar Rate Loan, Bank Bill
Swap Rate Loan or Gold Loan requested by such Borrower does not occur on a date
specified therefor in such Notice of Borrowing or a telephonic request for
borrowing, or the conversion to or continuation requested by such Borrower of
any Eurodollar Rate Loan, Bank Bill Swap Rate Loan or Gold Loan does not occur
on a date specified therefor in a Notice of Conversion/Continuation or a
telephonic request for conversion or continuation, (ii) if any prepayment or
conversion of any Eurodollar Rate Loans, Bank Bill Swap Rate Loans or Gold Loans
made to such Borrower by such Lender occurs on a date that is not the last day
of an Interest Period applicable to that Loan,
57
(iii) if any prepayment of any such Eurodollar Rate Loans, Bank Bill Swap Rate
Loans or Gold Loans is not made on any date specified in a notice of prepayment
given by such Borrower, or (iv) as a consequence of any other default by such
Borrower to repay its Eurodollar Rate Loans, Bank Bill Swap Rate Loans or Gold
Loans when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Subject to the provisions
of subsection 10.8, any Lender may make, carry or transfer Eurodollar Rate Loans
at, to, or for the account of any of its branch offices or the office of an
Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to a Lender under this subsection 2.6 and
under subsection 10.7A shall be made as though that Lender had actually funded
each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to the definition of
Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan
and having a maturity comparable to the relevant Interest Period and through the
transfer of such Eurodollar deposit from an offshore office of that Lender to a
domestic office of that Lender in the United States of America, Canada or
Australia; provided, however, that each Lender may fund each of its Eurodollar
Rate Loans in any manner it sees fit and the foregoing assumptions shall be
utilized only for the purposes of calculating amounts payable under this
subsection 2.6 and under subsection 10.7A.
G. Eurodollar Rate Loans, Bank Bill Swap Rate Loans and Gold
Loans After Default. Except as provided in subsection 2.2D, after the occurrence
of and during the continuation of a Potential Event of Default or an Event of
Default, (i) Borrowers may not elect to have a Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan, Bank Bill Swap Rate Loan or Gold Loan
after the expiration of any Interest Period then in effect for that Loan and
(ii) subject to the provisions of subsection 2.6D, any Notice of Borrowing or
Notice of Conversion/Continuation given by a Borrower with respect to a
requested borrowing or conversion/continuation that has not yet occurred shall
be deemed to be rescinded by such Borrower.
2.7 Letters of Credit
A. Letters of Credit. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Company and Borrowers set forth herein, each Borrower may request, in accordance
with the provisions of this subsection 2.7A, that on and after the Effective
Date the applicable Issuing Lender issue Letters of Credit for the account of
such Borrower denominated in (i) Dollars (in the case of U.S. Borrower), (ii)
Canadian Dollars or Dollars (in the case of Canadian Borrower) or (iii)
Australian Dollars or Dollars (in the case of Australian Borrowers). Such
Letters of Credit shall be issued solely for the purpose of supporting the
obligations of Borrowers and their respective Subsidiaries. Issuances of Letters
of Credit shall be subject to the following limitations:
(i) No Borrower shall request any Letter of Credit if, after
giving effect to such issuance, (a) the Total Utilization of
Overall Commitments would exceed the Overall Commitments, (b)
the Canadian Commitment Usage would exceed the
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Canadian Allocation, (c) the Australian Commitment Usage
would exceed the Australian Allocation, (d) the U.S.
Commitment Usage would exceed the U.S. Allocation, (e) the
Letter of Credit Usage would exceed $125,000,000, or (f) any
Lending Unit's Pro Rata Share of the Total Utilization of
Overall Commitments after giving effect to such issuance
would exceed such Lending Unit's Commitment then in effect;
and
(ii) In no event shall any Issuing Lender issue, reissue,
amend or permit the extension of: (x) any Letter of Credit
having an expiration date (including after giving effect to
any extension) later than the Commitment Termination Date in
effect at the time of issuance, reissuance, amendment or
extension (automatic or otherwise) thereof; (y) subject to the
foregoing clause (x), any Letter of Credit having an
expiration date more than one year after its date of issuance;
provided that subject to the foregoing clause (x), this clause
(y) shall not prevent such Issuing Lender from agreeing that a
Letter of Credit will automatically be extended annually for a
period not to exceed one year if such Issuing Lender does not
cancel such extension.
It shall be a condition precedent to the issuance of any
Letter of Credit in accordance with the provisions of this subsection 2.7 that
each condition set forth in subsection 3.3 shall have been satisfied.
Immediately upon the issuance of each Letter of Credit, each
Canadian Lender, in the case of any Letter of Credit issued for the account of
Canadian Borrower, each Australian Lender, in the case of any Letter of Credit
issued for the account of Australian Borrowers, or each U.S. Lender, in the case
of any Letter of Credit issued for the account of U.S. Borrower, shall be deemed
to, and hereby agrees to, have irrevocably purchased from the applicable Issuing
Lender an undivided and continuing participation in such Letter of Credit and
drawings thereunder in an amount equal to such Lender's Australian Lender Pro
Rata Share, Canadian Lender Pro Rata Share or U.S. Lender Pro Rata Share, as
applicable, of the maximum amount which is or at any time may become available
to be drawn thereunder.
The applicable Issuing Lender may upon the occurrence of an
Event of Default and the acceleration of the maturity of the Loans, provide for
the deposit of funds in an account to secure payment to the beneficiary and any
funds so deposited shall be paid to the beneficiary of the Letter of Credit if
conditions to such payment are satisfied or returned to the applicable Issuing
Lender for distribution to Lenders (or, if all Obligations shall have been
indefeasibly paid in full, to the applicable Borrower) if no payment to the
beneficiary has been made and 30 days after the final date available for
drawings under the Letter of Credit has passed. Each payment or deposit of funds
by the applicable Issuing Lender as provided in this paragraph shall be treated
for all purposes of this Agreement as a drawing duly honored by the applicable
Issuing Lender under the related Letter of Credit.
B. Notice of Issuance. Whenever Canadian Borrower desires the
issuance of a Letter of Credit, it shall deliver to Canadian Administrative
Agent and Administrative Agent a
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Notice of Issuance of Letter of Credit in the form of Exhibit XI hereto no later
than 1:00 P.M. (Toronto time) at least five Business Days or such shorter period
as may be agreed to by the applicable Issuing Lender in any particular instance,
in advance of the proposed date of issuance. Whenever an Australian Borrower
desires the issuance of a Letter of Credit, it shall deliver to Australian
Administrative Agent and Administrative Agent a Notice of Issuance of Letter of
Credit in the form of Exhibit XI hereto no later than 1:00 P.M. (Sydney time) at
least five Business Days or such shorter period as may be agreed to by the
applicable Issuing Lender in any particular instance, in advance of the proposed
date of issuance. Whenever U.S. Borrower desires the issuance of a Letter of
Credit, it shall deliver to Administrative Agent a Notice of Issuance of Letter
of Credit in the form of Exhibit XI hereto no later than 1:00 P.M. (New York
time) at least five Business Days or such shorter period as may be agreed to by
the applicable Issuing Lender in any particular instance, in advance of the
proposed date of issuance. Each Notice of Issuance of Letter of Credit shall
specify (i) the Borrower, (ii) the proposed date of issuance (which shall be a
Business Day), (iii) the face amount of the Letter of Credit, (iv) the
expiration date of the Letter of Credit, (v) the name and address of the
beneficiary, (vi) a summary of the purpose and the verbatim text of such Letter
of Credit, and (vii) a precise description of the documents and the proposed
text of any certificate to be presented by the beneficiary which, if presented
by the beneficiary prior to the expiration date of the Letter of Credit, would
require the applicable Issuing Lender to make payment under the Letter of
Credit; provided that the applicable Issuing Lender, in its sole reasonable
judgment, may require changes in any such documents and certificates; and
provided further that no Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same Business Day that such draft
is presented if such presentation is made after 11:00 A.M. (New York time,
Toronto time or Sydney time, as applicable,) on such Business Day. Promptly upon
the issuance of a Letter of Credit, the applicable Issuing Lender shall notify
the applicable Lenders of the applicable Borrower of such issuance and the
details thereof. In determining whether to pay under any Letter of Credit, the
applicable Issuing Lender shall be responsible only to determine that the
documents and certificates required to be delivered under that Letter of Credit
have been delivered and that they comply on their face with the requirements of
that Letter of Credit.
C. Payment of Amounts Drawn Under Letters of Credit. In the
event of any drawing under any Letter of Credit by the beneficiary thereof, the
applicable Issuing Lender shall promptly notify the Borrower for whose account
such Letter of Credit was issued, and such Borrower shall reimburse the
applicable Issuing Lender on the date on which such drawing is honored in the
same currency as the drawing in an amount in same day funds equal to the amount
of such drawing; provided that, anything contained in this Agreement to the
contrary notwithstanding, (i) unless such Borrower shall have notified the
Applicable Administrative Agent prior to 11:00 A.M. (New York Toronto or Sydney
time, as applicable,) on the Business Day immediately prior to the date of such
drawing that such Borrower intends to reimburse the applicable Issuing Lender
for the amount of such drawing with funds other than the proceeds of Loans, such
Borrower shall be deemed to have (1) in the case of Canadian Borrower, given a
Notice of Borrowing to Canadian Administrative Agent and Administrative Agent
requesting Canadian Lenders to make Canadian Loans (which shall be U.S. Base
Rate (Canada) Loans or Canadian Base Rate Loans denominated in the same currency
as the drawing) to the extent of the unused Canadian Allocation on the date on
which such drawing is honored in an amount equal to
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the amount of such drawing or, (2) in the case of Australian Borrowers, given a
Notice of Borrowing to Australian Administrative Agent and Administrative Agent
requesting Australian Lenders to make Australian Loans (which shall be Bank Bill
Swap Rate Loans or Eurodollar Rate Loans with a one month interest period) to
the extent of the unused Australian Allocation on the date on which such drawing
is honored in an amount equal to the amount of such drawing and (3) in the case
of U.S. Borrower, given a Notice of Borrowing to Administrative Agent requesting
U.S. Lenders to make U.S. Loans (which shall be U.S. Base Rate Loans) to the
extent of the unused U.S. Allocation on the date on which such drawing is
honored in an amount equal to the amount of such drawing, and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 3.2, such
Lenders shall, on the date of such drawing, make such Loans in the aggregate
amount of such drawing, the proceeds of which shall be applied directly by the
Applicable Administrative Agent to reimburse the applicable Issuing Lender for
the amount of such drawing; and provided further that, if Loans are required to
be made and for any reason proceeds of Loans are not received by the applicable
Issuing Lender on such date in an amount equal to the amount of such drawing,
the applicable Borrower shall reimburse the applicable Issuing Lender, on the
Business Day immediately following the date of such drawing, in an amount in
same day funds (and in the same currency as the unreimbursed drawing) equal to
the excess of the amount of such drawing over the amount of such Loans which are
so received, plus accrued interest on such amount at the rate set forth in
subsection 2.7E(ii).
D. Payment by Lenders with Respect to Letters of Credit. If
any Borrower shall fail to reimburse the applicable Issuing Lender as provided
in subsection 2.7C in an amount equal to the amount of any drawing honored by
the applicable Issuing Lender under a Letter of Credit issued by the applicable
Issuing Lender for the account of such Borrower, the applicable Issuing Lender
shall promptly notify the Applicable Administrative Agent and the Applicable
Administrative Agent shall promptly notify Administrative Agent and each
applicable Lender of the unreimbursed amount of such drawing, the currency in
which such drawing was funded, and of such Lender's respective participation
therein, which participation shall be equal to such Lender's Canadian Lender Pro
Rata Share, Australian Lender Pro Rata Share or U.S. Lender Pro Rata Share, as
applicable, of the unreimbursed amount of such drawing. Each applicable Lender
shall make available to the applicable Issuing Lender an amount equal to its
respective participation in same day funds and in the same currency as the
drawing, at the office of the applicable Issuing Lender specified in such
notice, not later than 1:00 P.M. (New York, Toronto or Sydney time, as
applicable) on the day such notice is given to such Lender by the Applicable
Administrative Agent. If any applicable Lender fails to make available to the
applicable Issuing Lender the amount of such Lender's participation in such
Letter of Credit as provided in this subsection 2.7D, the applicable Issuing
Lender shall be entitled to recover such amount on demand from such Lender
together with interest at the customary rate set by the applicable Issuing
Lender for the correction of errors among banks for three Business Days and
thereafter at the Canadian Base Rate, in the case of Canadian Dollar drawings,
the Bank Bill Swap Rate for a one month Interest Period in the case of
Australian Dollar drawings or the Alternate Base Rate, in the case of Dollar
drawings by U.S. Borrower and Australian Borrowers, and U.S. Base Rate (Canada)
in the case of Dollar drawings by Canadian Borrower. Nothing in this subsection
2.7 shall be deemed to prejudice the right of any Lender to recover from the
applicable Issuing Lender any amounts made available by such Lender to the
applicable Issuing Lender pursuant to this
\
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subsection 2.7D if the payment with respect to a Letter of Credit by the
applicable Issuing Lender in respect of which payment was made by such Lender
constituted gross negligence or willful misconduct on the part of the applicable
Issuing Lender, as finally determined by a court of competent jurisdiction. The
applicable Issuing Lender shall distribute to the Applicable Administrative
Agent for distribution to each other Lender which has paid all amounts payable
by it under this subsection 2.7D with respect to any Letter of Credit issued by
the applicable Issuing Lender such other Lender's Canadian Lender Pro Rata
Share, Australian Lender Pro Rata Share or U.S. Lender Pro Rata Share, as
applicable, of all payments received by the applicable Issuing Lender from any
Borrower in reimbursement of drawings honored by the applicable Issuing Lender
under such Letter of Credit when such payments are received. Notwithstanding
anything to the contrary herein, each Lender that has paid all amounts payable
by it under this subsection 2.7D shall have a direct right to reimbursement of
such amounts from the applicable Borrower, subject to the procedures for
reimbursing Lenders set forth in this subsection 2.7.
E. Compensation. Each Borrower agrees to pay, without
duplication, the following amounts to the applicable Issuing Lender with respect
to each Letter of Credit issued by the applicable Issuing Lender for the account
of such Borrower:
(i) with respect to each Letter of Credit, a letter of credit
fee payable to the applicable Issuing Lender equal to
applicable Letter of Credit Fee Percentage of the maximum
amount available from time to time to be drawn under such
Letter of Credit, calculated on the basis of a 360-day year,
in the case of Letters of Credit issued for the account of
U.S. Borrower or Australian Borrowers, or a 365 or 366-day
year (as applicable) in the case of Letters of Credit issued
for the account of Canadian Borrower, and, in each case, the
actual number of days elapsed and payable quarterly in arrears
on March 31, June 30, September 30 and December 31 of each
year in immediately available funds and in the same currency
as the Letter of Credit;
(ii) with respect to drawings made under any Letter of Credit,
interest, payable on demand in immediately available funds and
in the same currency as the drawing, on the amount paid by the
applicable Issuing Lender in respect of each such drawing from
the date of the drawing through the date such amount is
reimbursed by the applicable Borrower (but only if not
reimbursed when due) at a rate which is 2% per annum in excess
of the rate of interest otherwise payable under this Agreement
for Canadian Base Rate Loans, in the case of any Canadian
Dollar drawings, the Bank Bill Swap Rate for a one month
Interest Period, in the case of Australian Dollar drawings or
U.S. Base Rate Loans, in the case of any Dollar drawings by
U.S. Borrower and Australian Borrowers, or U.S. Base Rate
(Canada) Loans in the case of any Dollar drawings by Canadian
Borrower; and
(iii) with respect to the issuance, amendment or transfer of
each Letter of Credit and each drawing made thereunder,
documentary and processing charges in accordance with the
applicable Issuing Lender's standard schedule for such charges
in effect at the time of such issuance, amendment, transfer or
drawing, as
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the case may be, or as otherwise agreed by Issuing Lender,
Company and Borrowers.
Promptly upon receipt by the applicable Issuing Lender of any
amount described in subdivision (i) or (ii) of this subsection 2.7E, the
applicable Issuing Lender shall distribute to the Applicable Administrative
Agent for distribution to each Canadian Lender, Australian Lender or U.S.
Lender, as the case may be, its Canadian Lender Pro Rata Share, Australian
Lender Pro Rata Share or U.S. Lender Pro Rata Share, as applicable, of such
amount.
F. Obligations Absolute. The obligation of each Borrower to
reimburse any Issuing Lender for drawings made under the Letters of Credit
issued for such Borrower's account and the obligations of Lenders under
subsection 2.7D shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
(ii) the existence of any claim, set-off, defense or other
right the applicable Borrower may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any
persons or entities for whom any such transferee may be
acting), any Issuing Lender, any Agent, any Lender or any
other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction
(including any underlying transaction between such Borrower or
any of its Subsidiaries and the beneficiary for which the
Letter of Credit was procured);
(iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect;
(iv) payment by any Issuing Lender against a demand, draft or
certificate or other document which does not comply with the
terms of such Letter of Credit unless such Issuing Lender
failed to exercise reasonable care in ascertaining whether
such document appeared on its face to comply in all material
respects with such terms;
(v) any other circumstance or happening whatsoever, which
is similar to any of the foregoing; or
(vi) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing.
G. Additional Payments. If by reason of (a) any change in
applicable law, regulation, rule, decree or regulatory requirement or any change
in the interpretation or application by any judicial or regulatory authority of
any law, regulation, rule, decree or regulatory requirement or (b) compliance by
any Issuing Lender or any Lender with any direction,
63
request or requirement (whether or not having the force of law) of any
governmental or monetary authority including, without limitation, Regulation D:
(i) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Letters of
Credit issued by any Issuing Lender or participations therein
purchased by any Lender; or
(ii) there shall be imposed on any Issuing Lender or any
Lender any other condition regarding this subsection 2.7, any
Letter of Credit or any participation therein;
and the result of the foregoing is to directly or indirectly increase the cost
to any Issuing Lender or any Lender of issuing, making or maintaining any Letter
of Credit or of purchasing or maintaining any participation therein, or to
reduce the amount receivable in respect thereof by any Issuing Lender or any
Lender, then and in any such case such Issuing Lender or such Lender may notify
the Borrower for whose account such Letter of Credit was issued and such
Borrower shall pay within ten days of receipt of notice such amounts as such
Issuing Lender or such Lender may specify pursuant to the certificate described
below to be necessary to compensate such Issuing Lender or such Lender for such
additional cost or reduced receipt, together with interest on such amount from
the date of such demand until payment in full thereof at a rate equal at all
times to the Alternate Base Rate per annum. The determination by any Issuing
Lender or any Lender, as the case may be, of any amount due pursuant to this
subsection 2.7G as set forth in a certificate setting forth the calculation
thereof in reasonable detail, shall, in the absence of manifest error, be final
and conclusive and binding on all of the parties hereto.
H. Indemnification; Nature of Issuing Lender's Duties. In
addition to amounts payable as elsewhere provided in this subsection 2.7, each
Borrower hereby agrees to protect, indemnify, pay and save each Issuing Lender
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) which
such Issuing Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit for the account of such
Borrower, or (ii) the failure of any Issuing Lender to honor a drawing under any
such Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "Government
Acts").
As between any Issuing Lender and any Borrower for whose
account any Issuing Lender issues any Letter of Credit, such Borrower assumes
all risks of the acts and omissions of or misuse of any such Letter of Credit by
the beneficiary of any such Letter of Credit. In furtherance and not in
limitation of the foregoing, no Issuing Lender shall be responsible: (i) for the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of such Letters of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds
64
thereof, in whole or in part, which may prove to be invalid or ineffective for
any reason; (iii) for failure of the beneficiary of any such Letter of Credit to
comply fully with the conditions required in order to draw upon such Letter of
Credit; (iv) for errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether
or not they be in cipher; (v) for errors in interpretation of technical terms;
(vi) for any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (vii) for the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter of Credit; and
(viii) for any consequences arising from causes beyond the control of any
Issuing Lender, including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of any Issuing Lender's
rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by any
Issuing Lender under or in connection with the Letters of Credit issued by it or
the related certificates, if taken or omitted in good faith and without gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction, shall not put such Issuing Lender under any resulting liability to
any Borrower or Company.
Notwithstanding anything to the contrary contained in this
subsection 2.7, no Borrower shall have any obligation to indemnify any Issuing
Lender in respect of any liability incurred by such Issuing Lender arising out
of the gross negligence or willful misconduct of such Issuing Lender, as finally
determined by a court of competent jurisdiction, or out of the wrongful dishonor
by such Issuing Lender of proper demand for payment made under the Letters of
Credit issued by it; provided that payment against a draft or demand presented
after the expiration date of any Letter of Credit shall be deemed to constitute
gross negligence.
I. Computation of Interest. Interest payable pursuant to
subsection 2.7 shall be computed on the basis of a 360-day year and the actual
number of days elapsed in the period during which it accrues. For the purposes
of this subsection 2.7I, whenever interest is calculated on the basis of a year
of 360 days, each rate of interest determined pursuant to such calculation
expressed as an annual rate for the purposes of the Interest Act (Canada) is
equivalent to such rate as so determined multiplied by the actual number of days
in the calendar year in which the same is to be ascertained and divided by 360.
2.8 Bankers' Acceptances.
A. Bankers' Acceptance Commitment. Canadian Borrower may
request pursuant to this subsection 2.8, from time to time during the period
from the Effective Date to but excluding the Commitment Termination Date, that
each Canadian Lender create Bankers' Acceptances by accepting Drafts from
Canadian Borrower in an aggregate amount not exceeding such Canadian Lender's
Canadian Lender Pro Rata Share of the aggregate Face Amount of the Bankers'
Acceptances to be created on any Drawing Date; provided that Canadian Borrower
shall not request the creation of any Bankers' Acceptance if, after giving
effect thereto, (a) the Total Utilization of Overall Commitments would exceed
the Overall Commitments then in effect, or
65
(b) the Canadian Commitment Usage would exceed the Canadian Allocation then in
effect, and no Canadian Lender shall have any obligation to create any Bankers'
Acceptance if, after giving effect thereto, (a) the Total Utilization of Overall
Commitments of its Lending Unit would exceed such Lending Unit's Commitment, or
(b) its Canadian Commitment Usage would exceed its Canadian Commitment or its
Canadian Lender Pro Rata Share of the Canadian Allocation. Each Canadian Lender
shall also purchase Bankers' Acceptances created by it as more particularly
specified in this subsection 2.8.
The aggregate Face Amount of the Bankers' Acceptances to be
created on any Drawing Date shall be not less than Cdn. $5,000,000 and shall be
in integral multiples of Cdn.$1,000,000 in excess thereof. If apportionment of
Bankers' Acceptances among the Canadian Lenders cannot be made on a ratable
basis in even multiples of Cdn.$100,000, Canadian Administrative Agent shall
round the allocations among Canadian Lenders up or down to the nearest
Cdn.$100,000.
B. Drawing Notice.
Bankers' Acceptances shall be created on two Business Days'
prior written notice given not later than 11:00 A.M. (Toronto time), by Canadian
Borrower to Canadian Administrative Agent, which shall give each Canadian Lender
prompt notice thereof and of such Canadian Lender's ratable portion of the
aggregate Face Amount of the Drafts to be accepted (and purchased) by such
Canadian Lender. Each such notice (a "Drawing Notice") shall be in substantially
the form of Exhibit III-B annexed hereto or by telephone confirmed promptly in
writing, containing the same information as would be contained in a Drawing
Notice, and shall specify therein (i) the Drawing Date; (ii) the aggregate Face
Amount of Drafts to be accepted (and purchased); and (iii) the maturity date for
such Drafts (it being agreed and understood that Canadian Borrower shall not
request a maturity date for Drafts which would be subsequent to the Commitment
Termination Date).
Neither Canadian Administrative Agent nor any Canadian Lender
shall incur any liability to Company or any Borrower in acting on any telephonic
notice referred to above that Canadian Administrative Agent or such Canadian
Lender believes in good faith to have been given by a duly authorized officer or
other person authorized to borrow on behalf of Canadian Borrower or for
otherwise acting in good faith under this subsection 2.8, and upon the creation
and purchase of Bankers' Acceptances pursuant to any such telephonic notice,
Canadian Borrower shall be liable with respect thereto as provided herein.
Each Drawing Notice shall be irrevocable and binding on
Canadian Borrower. Canadian Borrower shall indemnify each Canadian Lender
against any loss or expense incurred by such Canadian Lender as a result of any
failure by Canadian Borrower to fulfill or honor before the applicable Drawing
Date the applicable conditions set forth in this subsection 2.8 or subsection
3.4 if as a result of such failure, the requested Bankers' Acceptances are not
created and/or purchased on such Drawing Date.
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C. Form of Bankers' Acceptances.
Each Draft presented by Canadian Borrower shall (i) be an
integral multiple of Cdn.$100,000; (ii) be dated the date of acceptance thereof
by the applicable Canadian Lender; (iii) mature and be payable by Canadian
Borrower on a Business Day which occurs 30, 60, 90 or, if available to each
Canadian Lender, 180 days after the date thereof; (iv) be substantially in the
form of Exhibit III-A annexed hereto; and (iv) be otherwise consistent with the
provisions of this Agreement relating to the amounts and maturity dates thereof.
The acceptance endorsed by a Canadian Lender on any Draft shall be substantially
in the form of the endorsement set forth in Exhibit III-A annexed hereto or such
other form as may be agreed by Canadian Borrower and such Canadian Lender.
Canadian Borrower hereby renounces, and shall not claim, any
days of grace for the payment of any Bankers' Acceptances.
D. Acceptance and Purchase of Drafts.
Not later than 11:00 A.M. (Toronto time) on an applicable
Drawing Date, each Canadian Lender shall complete Drafts, dated such Drawing
Date, with the maturity date and denominations specified in the applicable
Drawing Notice, and following fulfillment of any applicable conditions and as
specified in the applicable Drawing Notice, shall accept such Drafts and
purchase the Bankers' Acceptances thereby created for the applicable Bankers'
Acceptance Purchase Price.
Canadian Borrower hereby authorizes each Canadian Lender to
deduct from the amount to be remitted by it to the Canadian Administrative Agent
in respect of the Bankers' Acceptance Purchase Price or other purchase price of
any Bankers' Acceptance created by it the BA Fee in respect of such Bankers'
Acceptance.
The failure of any Canadian Lender to create and purchase or
deliver Bankers' Acceptances shall not relieve such Canadian Lender of its
obligation, if any, to create and purchase or deliver Bankers' Acceptances
hereunder, but a Canadian Lender shall not be responsible for the failure of any
other Canadian Lender to create and purchase or deliver Bankers' Acceptances on
any Drawing Date.
E. Payment of the Banker's Acceptance Purchase Price and Other
Purchase Price.
Subject to subsection 2.8B and satisfaction of the conditions
set forth in subsection 3.4, each Canadian Lender shall, (i) before 12:00 noon
(Toronto time) on the applicable Drawing Date in the case of the Bankers'
Acceptance Purchase Price for each Bankers' Acceptance purchased by it or (ii)
upon receipt by it on the applicable Drawing Date of the purchase price payable
by a third party in respect of any Bankers' Acceptance created by it and
purchased by such third party, pay or cause to be paid such amount by depositing
or causing to be deposited such amount (less the applicable BA Fee as aforesaid)
to such account maintained by Canadian Administrative Agent as shall have been
notified to such Canadian Lender by Canadian
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Administrative Agent, in Canadian Dollars in same day funds. Promptly upon
receipt of such funds, Canadian Administrative Agent shall make such funds
available to Canadian Borrower by debiting such account (or causing such account
to be debited), and (a) by crediting Canadian Borrower's account, as specified
by Canadian Borrower in writing to Canadian Administrative Agent prior thereto,
maintained with Canadian Administrative Agent (or causing such account to be
credited) with like funds in the aggregate amount of such funds or (b) by wiring
such funds in such amount to the account of Canadian Borrower with another
financial institution specified prior thereto by Canadian Borrower in writing to
Canadian Administrative Agent.
Bankers' Acceptances purchased by a Canadian Lender hereunder
may be held by it for its own account until maturity or sold by it at any time
prior thereto in any relevant market therefor in Canada, in such Canadian
Lender's sole discretion.
F. Payment at Maturity.
Canadian Borrower shall pay to the applicable Canadian Lender,
and there shall become due and payable, at 12:00 noon (Toronto time) on the
maturity date for each Bankers' Acceptance, an amount in Canadian Dollars in
same day funds equal to the Face Amount of such Bankers' Acceptance. The
obligation of Canadian Borrower to make such payment shall not be prejudiced by
the fact that the holder of any such Bankers' Acceptance is the Canadian Lender
that accepted such Bankers' Acceptance.
If Canadian Borrower fails to pay to the applicable Canadian
Lender the Face Amount of any Bankers' Acceptance as required by the preceding
paragraph, Canadian Borrower shall be deemed to have given a Notice of Borrowing
to Canadian Administrative Agent and Administrative Agent requesting such
Canadian Lender to make a Canadian Base Rate Loan on the date that such payment
is due and payable, and thereupon such Canadian Lender shall, as of such date,
make such Canadian Base Rate Loan to Canadian Borrower, the proceeds of which
shall be applied directly to reimburse such Canadian Lender for the Face Amount
of such Bankers' Acceptance paid by it. Canadian Administrative Agent will give
to Canadian Borrower notice of any such action promptly after any such action;
provided, however, that the failure to give such notice shall not limit or
otherwise affect the obligations of Company or any Borrower under this Agreement
or any other Loan Document.
Bankers' Acceptances may not be prepaid.
G. Powers of Attorney.
To enable Canadian Lenders to complete Drafts and create and
purchase Bankers' Acceptances in the manner specified in this subsection 2.8,
Canadian Borrower shall supply each Canadian Lender with an irrevocable Power of
Attorney satisfactory in form and content to the Canadian Administrative Agent,
duly endorsed and executed on behalf of Canadian Borrower allowing Canadian
Lenders to take such actions. Notwithstanding that any of the individuals whose
signature appears on any Power of Attorney may no longer hold office at the date
thereof or at any time thereafter, any Power of Attorney so signed shall be
valid and binding upon Canadian Borrower.
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H. Circumstances Making Bankers' Acceptances Unavailable.
If Canadian Administrative Agent determines in good faith,
which determination shall be final, conclusive and binding upon Canadian
Borrower, and notifies Canadian Borrower and each Canadian Lender that, by
reason of circumstances affecting the money market (i) there is no market for
Bankers' Acceptances; or (ii) the demand for Bankers' Acceptances is
insufficient to allow the sale or trading of the Bankers' Acceptances created
and purchased hereunder; then:
(i) the right of Canadian Borrower to request that Bankers'
Acceptances be created hereunder shall be suspended until
Canadian Administrative Agent determines that the
circumstances causing such suspension no longer exist and
Canadian Administrative Agent so notifies the Canadian
Borrower; and
(ii) any Drawing Notice which is outstanding shall be
cancelled and the Bankers' Acceptances requested therein shall
not be created.
I. Use of Proceeds of Bankers' Acceptances.
The proceeds of any Bankers' Acceptance created under this
subsection 2.8 shall be used by Canadian Borrower for working capital purposes
and general corporate purposes.
Section 3. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND LOANS,
LETTERS OF CREDIT AND BANKERS' ACCEPTANCES
3.1 Conditions to Effectiveness.
The effectiveness of this Agreement is subject to the prior or
concurrent satisfaction of the following conditions:
A. Company Documents. On or before the Effective Date, Company
shall deliver or cause to be delivered to Lenders (or to Administrative Agent
for Lenders with sufficient originally executed copies, where appropriate, for
each Lender and its counsel) the following, each, unless otherwise noted, dated
the Effective Date:
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary
of State of the States of Delaware and California, each dated
a recent date prior to the Effective Date;
(ii) Copies of its Bylaws, certified as of the Effective Date
by its corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this
Agreement and any other Loan Documents to which it is a party,
certified as of the Effective Date by its corporate secretary
or an assistant secretary as being in full force and effect
without modification or amendment;
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(iv) Signature and incumbency certificates of its officers
executing this Agreement and any other Loan Documents to which
it is a party;
(v) Executed originals of this Agreement and any other Loan
Documents to which it is a party; and
(vi) Such other documents as any Lender through Administrative
Agent may reasonably request.
B. Canadian Borrower Documents. On or before the Effective
Date, Canadian Borrower shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated the Effective Date:
(i) Certified or notarial copies of Canadian Borrower's
Certificate of Incorporation, together with evidence of its
corporate status in the Provinces of Ontario and British
Columbia, each dated a recent date prior to the Effective
Date;
(ii) Copies of Canadian Borrower's Bylaws, certified as of the
Effective Date by its corporate secretary or an assistant
secretary;
(iii) Resolutions of Canadian Borrower's Board of Directors
approving and authorizing the execution, delivery and
performance of this Agreement and any other Loan Documents to
which it is a party, certified as of the Effective Date by its
corporate secretary or an assistant secretary as being in full
force and effect without modification or amendment;
(iv) Signature and incumbency certificates of Canadian
Borrower's officers executing this Agreement and any other
Loan Documents to which it is a party;
(v) Executed originals of this Agreement, any Notes requested
by Lenders and any other Loan Documents to which Canadian
Borrower is a party; and
(vi) Such other documents as any Lender through Administrative
Agent may reasonably request.
C. Australian Borrowers Documents. On or before the Effective
Date, each Australian Borrower shall deliver or cause to be delivered to Lenders
(or to Administrative Agent for Lenders with sufficient originally executed
copies, where appropriate, for each Lender and its counsel) the following, each,
unless otherwise noted, dated the Effective Date:
(i) Certified copies of such Australian Borrower's Certificate
of Incorporation and Articles of Association, each dated a
recent date prior to the Effective Date;
(ii) Resolutions of such Australian Borrower's Board of
Directors (a) approving and authorizing the execution,
delivery and performance of this Agreement and any other Loan
Documents to which it is a party, and (b)
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authorizing each Authorized Signor to sign on behalf of, and
thereby bind, such Australian Borrower, certified as of the
Effective Date by its corporate secretary or an assistant
secretary as being in full force and effect without
modification or amendment;
(iii) Signature and incumbency certificates of such Australian
Borrower's directors, officers and Authorized Signors
executing this Agreement and any other Loan Documents to which
it is a party;
(iv) Executed originals of this Agreement, any Notes requested
by Lenders and any other Loan Documents to which such
Australian Borrower is a party; and
(v) Such other documents as any Lender through Administrative
Agent may reasonably request.
D. U.S. Borrower Documents. On or before the Effective Date,
U.S. Borrower shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally executed copies,
where appropriate, for each Lender and its counsel) the following, each, unless
otherwise noted, dated the Effective Date:
(i) Certified copies of U.S. Borrower's Articles of
Incorporation, together with good standing certificates from
the Secretary of State of the States of California, Nevada and
South Dakota, each dated a recent date prior to the Effective
Date;
(ii) Copies of U.S. Borrower's Bylaws, certified as of the
Effective Date by its corporate secretary or an assistant
secretary;
(iii) Resolutions of U.S. Borrower's Board of Directors
approving and authorizing the execution, delivery and
performance of this Agreement and any other Loan Documents to
which it is a party, certified as of the Effective Date by its
corporate secretary or an assistant secretary as being in full
force and effect without modification or amendment;
(iv) Signature and incumbency certificates of U.S. Borrower's
officers executing this Agreement and any other Loan Documents
to which it is a party;
(v) Executed originals of this Agreement, any Notes and any
Grid Gold Acknowledgements requested by Lenders and any other
Loan Documents to which U.S. Borrower is a party; and
(vi) Such other documents as any Lender through Administrative
Agent may reasonably request.
E. Opinions of Company's and Borrowers' Counsel.
Administrative Agent on behalf of Lenders, with sufficient originally executed
copies for each Lender, shall have received (i) originally executed copies of
one or more favorable written opinions of (a) Thelen,
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Reid & Priest, counsel for Company and U.S. Borrower, and (b) Wayne Kirk, Vice
President and General Counsel of Company and U.S. Borrower, each in form and
substance reasonably satisfactory to Administrative Agent and its counsel, each
dated as of the Effective Date and setting forth substantially the matters in
the opinions designated in Exhibits VII-A and VII-B, respectively, annexed
hereto and as to such other matters as Administrative Agent may reasonably
request, (ii) originally executed copies of one or more favorable written
opinions of Osler, Hoskin & Harcourt, counsel for Canadian Borrower, in form and
substance reasonably satisfactory to Administrative Agent and its counsel, dated
as of the Effective Date and setting forth substantially the matters designated
in Exhibit VIII-A annexed hereto and as to such other matters as Administrative
Agent may reasonably request, and (iii) originally executed copies of one or
more favorable written opinions of Mallesons Stephen Jaques, counsel for
Australian Borrowers, in form and substance reasonably satisfactory to
Administrative Agent and its counsel, dated as of the Effective Date and setting
forth substantially the matters designated in Exhibit VIII-B annexed hereto and
as to such other matters as Administrative Agent may reasonably request.
F. Opinions of Administrative Agent's Counsel. Administrative
Agent on behalf of Lenders, with sufficient originally executed copies for each
Lender, shall have received originally executed copies of one or more favorable
written opinions of O'Melveny & Myers, counsel to Administrative Agent, dated as
of the Effective Date, substantially in the form of Exhibit IX annexed hereto
and as to such other matters as Administrative Agent may reasonably request.
G. Fees. Company shall have paid to Administrative
Agent for distribution (as appropriate) to Administrative Agent, Arranger and
Lenders the fees payable on the Effective Date referred to in subsection 2.3.
H. No Material Adverse Effect; New Disclosures. Since December
31, 1997, there shall not have occurred any change, or development or event
involving a prospective change, which in either case, in the opinion of Lenders
has had or could have a Material Adverse Effect, and Administrative Agent and
Documentation Agent shall not have become aware of any previously undisclosed
information that is material and adverse with respect to (i) the business,
assets, operations, condition (financial or otherwise) or prospects of Company,
Company and its Subsidiaries taken as a whole, or any Borrower, or (ii)
Company's or any Borrower's ability to perform, or the ability of Lenders to
enforce, any of the Obligations.
I. Representations and Warranties; Performance of Agreements.
Company and each Borrower shall have delivered to Administrative Agent an
Officers' Certificate, in form and substance satisfactory to Administrative
Agent, to the effect that the representations and warranties in Section 4 hereof
are true, correct and complete in all material respects on and as of the
Effective Date to the same extent as though made on and as of that date and that
Company and each Borrower has performed in all material respects all agreements
and satisfied all conditions which each Loan Document provides shall be
performed or satisfied by it on or before the Effective Date except as otherwise
disclosed to and agreed to in writing by Administrative Agent and Requisite
Lenders.
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J. No Disruption of Financial and Capital Markets or Price of
Gold. There shall have been no material adverse change since June 2, 1998 to the
syndication markets for credit facilities similar in nature to the credit
facilities provided herein, and there shall not have occurred and be continuing
a material disruption of or material adverse change in financial, banking or
capital markets that would have an adverse effect on such syndication market, in
each case as determined by Administrative Agent and Arranger in their reasonable
discretion. Additionally, there shall have been no material adverse change in
the price of gold prevailing in international markets that would have a Material
Adverse Effect.
K. Company's Consolidated Net Worth. Administrative Agent
shall have received evidence satisfactory to it that Company's Consolidated Net
Worth is not less than $500,000,000.
L. Completion of Proceedings. All corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and its
counsel, and Administrative Agent and its counsel shall have received all such
counterpart originals or certified copies of such documents as they may
reasonably request.
M. Termination of the Plutonic Credit Agreement.
Administrative Agent shall have received evidence satisfactory to it that the
Plutonic Credit Agreement and all borrowings and commitments thereunder shall
have been terminated and that the Company shall have issued irrevocable
instructions to cause to be applied borrowings hereunder up to $175 million of
the Overall Commitments to repay in full all outstanding obligations thereunder.
N. Delivery of Compliance Certificate. Company shall have
delivered to Administrative Agent a Compliance Certificate demonstrating in
reasonable detail compliance during and at the end of Company's most recent
fiscal quarter with the restrictions contained in subsections 6.1, 6.2, 6.3,
6.4, 6.6 and 6.7;
O. Acquisition. All aspects of the Plutonic Acquisition shall
have been consummated substantially in accordance with the Plutonic Acquisition
Documents and the Administration Agent shall have received copies of the
Plutonic Acquisition Documents.
P. Financial Statements. The Lenders shall have received:
(i) copies of the Company's annual reports on Form 10-K for
the periods ending December 31, 1996 and December 31, 1997,
and quarterly report on Form 10-Q for the period ending March
31, 1998;
(ii) audited consolidated supplementary financial statements
of Company, including Plutonic, for the fiscal years ended
December 31, 1996 and 1997 prepared in conformity with GAAP;
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(iii) unaudited consolidated summarized income statement and
balance sheet of Company, including Plutonic, for the first
quarter of 1998 prepared in conformity with GAAP; and
(iv) unaudited consolidated summarized income statement and
balance sheet of Company, including Plutonic, for the most
recent month ending at least 45 days prior to the Effective
Date prepared in conformity with GAAP.
Q. Solvency. The Administrative Agent and the Lenders shall
have received a certificate of the chief financial officer or treasurer of
Company substantially in the form of Exhibit XIV supporting the conclusions
that, after giving effect to the transactions contemplated hereby, the Borrowers
will not be insolvent nor rendered insolvent by the indebtedness incurred in
connection therewith, or be left with unreasonably small capital with which to
engage in their businesses, or have incurred debts beyond its ability to pay
such debts as they mature.
R. Other Documents. Each of Company, Canadian Borrower,
Australian Borrowers and U.S. Borrower shall have delivered to Administrative
Agent such other documents as any Lender through Administrative Agent may
reasonably request.
3.2 Conditions to All Loans.
The obligations of Lenders to make Loans on each Funding Date
are subject to the following further conditions precedent:
A. The Applicable Administrative Agent and Administrative
Agent shall have received before that Funding Date, in accordance with the
provisions of subsection 2.1B, an originally executed Notice of Borrowing signed
by a Responsible Officer of the applicable Borrower, or by any executive officer
of the applicable Borrower designated by any Responsible Officer on behalf of
the applicable Borrower, in a writing delivered to the Applicable Administrative
Agent and Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete
in all material respects on and as of that Funding Date to the
same extent as though made on and as of that date, except to
the extent that changes in the facts and conditions on which
such representations and warranties are based are required or
permitted under this Agreement;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by
such Notice of Borrowing that would constitute an Event of
Default or a Potential Event of Default;
(iii) Company and each Borrower shall have performed in all
material respects all agreements and satisfied all conditions
which this Agreement and the other
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Loan Documents provide shall be performed or satisfied
by it on or before that Funding Date;
(iv) There shall not be pending or, to the knowledge of
Company or any Borrower, threatened, any action, suit,
proceeding, governmental investigation or arbitration against
or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries, and there
shall have occurred no development in any such action, suit,
proceeding, governmental investigation or arbitration, that,
in either event, in the opinion of Requisite Lenders, would
reasonably be expected to have a Material Adverse Effect,
unless disclosed to and consented to by Requisite Lenders; and
no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed
with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans, the
issuance of Letters of Credit or the creation and purchase of
Bankers' Acceptances hereunder; and
(v) No Company Change of Control shall have occurred.
3.3 Conditions to All Letters of Credit.
The obligation of any Issuing Lender to issue, extend or renew
any Letter of Credit hereunder is subject to prior or concurrent satisfaction of
all of the following conditions:
A. On or before the date of issuance, extension or renewal of
any Letter of Credit hereunder, the applicable Issuing Lender shall have
received, in accordance with the provisions of subsection 2.7B, a Notice of
Issuance of Letter of Credit relating to the proposed Letter of Credit, all
other information specified in subsection 2.7B and such other documents as the
applicable Issuing Lender may reasonably require in connection with the
issuance, extension or renewal of such Letter of Credit.
B. On or before the date of issuance, extension or renewal of
such Letter of Credit, each of the conditions set forth in subsection 3.1 shall
have been satisfied as of the Effective Date, and, on such date of issuance,
extension or renewal, all conditions precedent described in subsection 3.2B
shall be satisfied to the same extent as though the issuance, extension or
renewal of such Letter of Credit were the making of a Loan and the date of
issuance, extension or renewal of such Letter of Credit were a Funding Date.
3.4 Conditions to All Bankers' Acceptances.
The creation of any Bankers' Acceptance hereunder is subject
to the following conditions precedent:
A. On or before the date of the creation of any Bankers'
Acceptance, Canadian Administrative Agent shall have received, in accordance
with the provisions of subsection 2.8,
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an originally executed Drawing Notice, signed by any executive officer or vice
president of Canadian Borrower.
B. On the date of the creation of any Bankers' Acceptance,
each of the conditions set forth in subsection 3.1 shall have been satisfied as
of the Effective Date, and, on such date of creation, all conditions precedent
described in subsection 3.2B shall be satisfied to the same extent as if the
creation of such Bankers' Acceptance were the making of a Loan and the Drawing
Date were a Funding Date.
Section 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Issuing Lenders to issue Letters of Credit, to induce
Lenders to purchase participations in Letters of Credit, and to induce Canadian
Lenders to create and purchase Bankers' Acceptances, Company and each Borrower
jointly and severally represent and warrant to each Lender that the following
statements are true, correct and complete:
4.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A. Organization and Powers. Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Canadian Borrower is a corporation duly organized and validly existing
under the laws of the Province of Ontario. U.S. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California. HGAL is a corporation duly organized and validly existing under the
laws of South Australia. Plutonic is a corporation duly organized and validly
existing under the laws of New South Wales. Each of Company and each Borrower
has all requisite corporate power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Loan Documents to which it is a party, to carry out
the transactions contemplated thereby and to issue and pay any Notes and any
Grid Gold Acknowledgements to be issued by it.
B. Qualification and Good Standing. Each of Company and each
of its Subsidiaries is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except in jurisdictions where the failure to be so
qualified or in good standing has not had and will not have a Material Adverse
Effect.
C. Conduct of Business. Company and its Subsidiaries are
engaged only in the businesses permitted to be engaged in pursuant to subsection
6.10.
D. Subsidiaries. All of the Subsidiaries of Company as of the
Effective Date (other than Joint Ventures that do not have an interest in any of
the currently producing mines in the Mining Group) are identified in Schedule
4.1 annexed hereto. The capital stock of each of the Material Subsidiaries of
Company that is a corporation identified in Schedule 4.1 annexed hereto is duly
authorized, validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. Each of the Material Subsidiaries of
Company identified in
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Schedule 4.1 annexed hereto that is a corporation is validly existing and in
good standing under the laws of its respective jurisdiction of incorporation set
forth therein, has full corporate power and authority to own its assets and
properties and to operate its business as presently owned and conducted, and is
qualified to do business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business and
operations, in each case except where failure to be so qualified or in good
standing or a lack of such corporate power and authority has not had and will
not have a Material Adverse Effect. Schedule 4.1 annexed hereto correctly sets
forth the ownership interest of Company in each of its Subsidiaries identified
therein.
4.2 Authorization of Borrowing and Guaranty, etc.
A. Authorization of Borrowing and Guaranty. The execution,
delivery and performance of this Agreement and any other Loan Documents and the
issuance, delivery and payment of the Notes and the Grid Gold Acknowledgements
have been duly authorized by all necessary corporate action on the part of
Company and each Borrower, as the case may be.
B. No Conflict. The execution, delivery and performance by
Company and Borrowers of this Agreement and any other Loan Documents, the
issuance, delivery and payment of the Notes or any Grid Gold Acknowledgments by
Borrowers, the issuance and sale of the New Subordinated Indebtedness by Company
and the incurrence and repayment of extensions of credit pursuant to the Loan
Documents have not, do not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws or other
charter documents of Company or any of its Subsidiaries or any order, judgment
or decree of any court or other agency of government binding on Company or any
of its Subsidiaries, (ii) conflict with, result in a material breach of or
constitute (with due notice or lapse of time or both) a material default under
any Contractual Obligation of Company or any of its Subsidiaries, (iii) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of Company or any of its Subsidiaries (other than any Liens created
under any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders of Company or any of its
Subsidiaries or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, except for consents obtained
on or before the Effective Date and disclosed in writing to Lenders.
C. Governmental Consents. The execution, delivery and
performance by Company and each Borrower, as the case may be, of the Loan
Documents, the issuance, delivery and payment of the Notes and Grid Gold
Acknowledgements and the consummation of the transactions contemplated by the
Loan Documents do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.
D. Binding Obligation. This Agreement and each other Loan
Document has been duly executed and delivered by Company and each Borrower, and
each Note and each Grid Gold Acknowledgement delivered to any Lender has been
duly issued by the applicable
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Borrower, and each such Loan Document is the legally valid and binding
obligation of Company and each Borrower, as the case may be, enforceable against
Company and each Borrower, as the case may be, in accordance with its respective
terms, except as limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
4.3 Valid Issuance of Stock.
The Company Common Stock is duly and validly issued, fully
paid and nonassessable. Except for rights under Company's Stockholders Rights
Agreement dated as of October 16, 1987, as amended, and holders of directors or
employee stock options and share rights and holders of delayed delivery
agreements of Canadian Borrower or the Subordinated Debentures, the New
Subordinated Indebtedness and the HCI Exchangeable Stock, no stockholder of
Company has or will have any preemptive rights to subscribe for any additional
equity Securities of Company. The Company Common Stock, when issued and sold,
was either registered or qualified under applicable federal and state securities
laws or exempt therefrom.
4.4 Subordinated Indebtedness.
A. The Subordinated Debentures have been duly authorized and
validly issued by Company and constitute the legally valid and binding
obligations of Company enforceable against Company in accordance with their
terms, except as limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
B. The New Subordinated Indebtedness, when issued, will be
duly authorized and validly issued by Canadian Borrower or the Company and
constitute the legally valid and binding obligations of Canadian Borrower
enforceable against Canadian Borrower in or of the Company enforceable against
the Company accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
C. The Subordinated Indebtedness, when issued and sold, was
either registered or qualified under applicable federal and state securities
laws or exempt therefrom. The subordination provisions of the Subordinated
Debentures and the New Subordinated Indebtedness are, or when issued will be,
enforceable against the holders of the Subordinated Debentures and the New
Subordinated Indebtedness, respectively. The Obligations constitute "Senior
Debt" under the indentures pursuant to which the Subordinated Debentures and the
New Subordinated Indebtedness have been or will be issued.
4.5 Financial Condition.
Company has heretofore delivered to Lenders, at Lenders'
request, the following financial statements and information: (i) the audited
consolidated balance sheet of Company and its Subsidiaries as at December 31,
1997 and the related consolidated statements of income, stockholders' equity and
cash flows of Company and its Subsidiaries for the Fiscal Year then
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ended, and (ii) the unaudited consolidated summarized balance sheet of Company
and its Subsidiaries as at March 31, 1998 and the related unaudited consolidated
summarized statement of income of Company and its Subsidiaries for the three
months then ended. All such statements were prepared in conformity with GAAP and
fairly present the financial position (on a consolidated basis) of the entities
described in such financial statements as at the respective dates thereof and
the results of operations and, where applicable, cash flows (on a consolidated
basis) of the entities described therein for each of the periods then ended,
subject, in the case of any such unaudited financial statements, to changes
resulting from audit and normal year-end adjustments. Except as disclosed in
Schedule 4.5 annexed hereto, Company does not have any Contingent Obligation, or
liability for any taxes, long-term lease or unusual forward or long-term
financial commitment that is not reflected in the most recent financial
statements delivered to Lenders or the notes thereto, if any, or otherwise
permitted under subsection 6.4 and which in any such case is material in
relation to the business, operations, properties, assets or condition (financial
or otherwise) of Company and its Subsidiaries, taken as a whole.
4.6 No Material Adverse Effect; No Restricted Junior Payments.
Since December 31, 1997, no event or change has occurred that
has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect. Neither Company nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 6.5.
4.7 Title to Properties; Liens.
Company and its Subsidiaries have good, sufficient and legal
title, subject to Permitted Encumbrances, to all of their respective properties
and assets reflected in the most recent financial statements delivered to
Lenders, except for (a) assets held in Joint Ventures where the operator or
another participant or the Joint Venture may hold legal title but Company or one
of its Subsidiaries holds a beneficial ownership interest therein, (b) assets
disposed of since the date of such financial statements in the ordinary course
of business, (c) as otherwise permitted under subsection 6.7, and (d) such
defects that have not had, or would not reasonably be expected to result in, a
Material Adverse Effect. Except for Permitted Encumbrances and except as
otherwise permitted by this Agreement, all such properties and assets are free
and clear of Liens.
4.8 Litigation; Adverse Facts.
Except as described in Schedule 4.8 or in the Company's Annual
Report on Form 10-K for 1997, there is no action, suit, proceeding, arbitration
or governmental investigation (whether or not purportedly on behalf of Company
or any of its Subsidiaries) at law or in equity or before or by any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, pending or, to the knowledge of
Company, threatened against or affecting Company or any of its Subsidiaries or
any property of Company or any of its Subsidiaries (i) that has had, or would
reasonably be expected to result in, a Material Adverse Effect or (ii) that
seeks to enjoin or otherwise challenge any of the transactions contemplated by
this Agreement or the enforceability of this Agreement. Neither Company nor
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any of its Subsidiaries is (i) in violation of any applicable law that has had,
or would reasonably be expected to result in, a Material Adverse Effect, or (ii)
subject to or in default with respect to any final judgment, writ, injunction,
decree, rule or regulation of any court or any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that has had, or would reasonably be
expected to result in, a Material Adverse Effect.
4.9 Payment of Taxes.
Except to the extent permitted by subsection 5.3, all material
taxes, assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises which are due and payable have been paid. Company knows of no
proposed tax assessment against Company or any of its Subsidiaries that has had
or would have a Material Adverse Effect, which is not being actively contested
by Company or such Subsidiary in good faith and by appropriate proceedings;
provided that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
4.10 Performance of Agreements; Materially Adverse Agreements.
A. Except as described in Schedule 4.10, neither Company nor
any of its Subsidiaries is in default in the performance, observance or
fulfillment of any of the material obligations, covenants or conditions
contained in any of its Contractual Obligations, and no condition exists that,
with the giving of notice or the lapse of time or both, would constitute such a
default, except where the consequences, direct or indirect, of such default or
defaults, if any, has not had and would not have a Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to
or is otherwise subject to any agreement or instrument or any charter or other
internal restriction which has had or will have, individually or in the
aggregate, a Material Adverse Effect.
4.11 Governmental Regulation.
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other Canadian, Commonwealth of Australia or U.S. federal or state
statute or regulation which may limit its ability to incur Indebtedness for
borrowed money.
4.12 Securities Activities.
Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
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4.13 Employee Benefit Plans.
A. Company and each of its ERISA Affiliates are in compliance
with all applicable provisions and requirements of ERISA and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan,
and have performed all their obligations under each Employee Benefit Plan, where
failure to comply and perform such obligations would reasonably be expected to
have a Material Adverse Effect.
B. Except as set forth on Schedule 4.13 annexed hereto, no
ERISA Event has occurred or is reasonably expected to occur which would
reasonably be expected to have a Material Adverse Effect.
C. Except to the extent required under Section 601 of ERISA or
Section 4980B of the Internal Revenue Code or except as described on Schedule
4.13 annexed hereto, no Employee Benefit Plan of Company or any of its
Subsidiaries provides health or welfare benefits (through the purchase of
insurance or otherwise) for any retired or former employees of Company or any of
its ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan,
the amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities) as set forth in the most recent actuarial report
prepared for such Pension Plan, does not exceed $20,000,000.
4.14 Certain Fees.
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby.
4.15 Environmental Protection.
Except as heretofore disclosed in writing by Company to
Lenders or otherwise disclosed in Company's Annual Report on Form 10-K for its
1997 fiscal year, no event or condition has occurred with respect to Company or
any of its Subsidiaries relating to any Environmental Laws or Release of
Hazardous Materials which, individually, or in the aggregate, has had or would
have a Material Adverse Effect.
4.16 Employee Matters.
There is no strike or work stoppage in existence or, to
Company's knowledge, threatened involving Company or any of its Subsidiaries
that has had or would reasonably be expected to have a Material Adverse Effect.
4.17 Solvency.
Company and its Subsidiaries, taken as a whole, and each of
Borrowers are Solvent.
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4.18 Compliance with Laws.
The businesses and operations of Company and its Subsidiaries
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, except to the extent that noncompliance
would not reasonably be expected to cause a Material Adverse Effect.
4.19 Disclosure.
No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document, or in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to Company or any Borrower, in the case
of any document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by Company and Borrowers to be reasonable at the time made, it being
recognized by Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by
any such projections may differ from the projected results. There is no fact
known (or which should upon the reasonable exercise of diligence be known) to
Company or any Borrower (other than matters of a general economic nature) that
has had, or would reasonably be expected to result in, a Material Adverse Effect
and that has not been disclosed herein or in such other documents, certificates
and statements furnished to Lenders for use in connection with the transactions
contemplated hereby.
Section 5. AFFIRMATIVE COVENANTS
Company and each Borrower severally covenant and agree that,
so long as any of the Overall Commitments hereunder shall remain in effect and
until payment in full of all of the Loans and other Obligations, the
cancellation or expiration of all Letters of Credit and Bankers' Acceptances and
the reimbursement of all amounts drawn thereunder, Company and each Borrower
shall perform all covenants in this Section 5 to be performed by it (including
in the case of any Borrower, covenants applicable to it in its capacity as a
Subsidiary of Company), and Company and each Borrower shall cause each of their
respective Subsidiaries to perform, all covenants in this Section 5 applicable
to each such Subsidiary.
5.1 Financial Statements and Other Reports.
Company shall maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of consolidated financial
statements in conformity with GAAP. Company shall deliver to Lenders:
(i) Quarterly Financials: as soon as available and in any
event within 50 days after the end of each fiscal quarter of
each Fiscal Year (beginning with the fiscal
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quarter ending June 30, 1998), the consolidated balance sheets
of Company and its Subsidiaries as at the end of such fiscal
quarter and the related consolidated statements of income and
cash flows of Company and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then
current Fiscal Year to the end of such fiscal quarter, all in
reasonable detail and certified by the chief financial officer
or chief accounting officer of Company that they fairly
present the consolidated financial condition of Company and
its Subsidiaries as at the dates indicated and the results of
their operations and the cash flows of Company and its
Subsidiaries for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments;
(ii) Year-End Financials: as soon as available and in any
event within 90 days after the end of each Fiscal Year, the
consolidated balance sheets of Company and its Subsidiaries,
Canadian Borrower and its Subsidiaries and each Australian
Borrower and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its
Subsidiaries, Canadian Borrower and its Subsidiaries and each
Australian Borrower and its Subsidiaries for such Fiscal Year,
all in reasonable detail and certified by the chief financial
officer or chief accounting officer of Company that they
present fairly in all material respects the consolidated
financial condition of Company and its Subsidiaries, Canadian
Borrower and its Subsidiaries and each Australian Borrower and
its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods
indicated;
(iii) Officers' and Compliance Certificates: together with
each delivery of consolidated financial statements of Company
and its Subsidiaries pursuant to subdivisions (i) and (ii)
above, (a) an Officers' Certificate of Company and each
Borrower stating that the signers have reviewed the terms of
this Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the
accounting period covered by such financial statements and
that such review has not disclosed the existence during or at
the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of such
Officers' Certificate, of any condition or event that
constitutes an Event of Default or Potential Event of Default,
or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what
action Company or any Borrower has taken, is taking and
proposes to take with respect thereto; and (b) a Compliance
Certificate demonstrating in reasonable detail compliance
during and at the end of the applicable accounting periods
with the restrictions contained in subsections 6.1, 6.2, 6.3,
6.4, 6.6 and 6.7;
(iv) Accountants' Reports: promptly upon receipt thereof
(unless restricted by applicable professional standards),
copies of all reports submitted to Company by independent
certified public accountants in connection with each annual,
interim or
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special audit of the financial statements of Company and its
Subsidiaries made by such accountants, including, without
limitation, any comment letter submitted by such accountants
to management in connection with their annual audit;
(v) Monthly Business Report: promptly upon their becoming
available (but in no event later than 45 days after the last
day of each month, or 90 days, in the case of the last month
of each Fiscal Year), the monthly business report relating to
Company's and its Subsidiaries' operations prepared internally
for Company's management;
(vi) SEC Filings and Press Releases: (a) promptly upon their
becoming available, copies of (1) all financial statements,
reports, notices and proxy statements sent or made available
generally by Company to its security holders, (2) all regular
and periodic reports and all registration statements (other
than on Form S-8 or a similar form) and prospectuses, if any,
filed by Company or any of its Subsidiaries with the
Securities and Exchange Commission or any national securities
exchange (including, without limitation, Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30,
1998), and (b) concurrently with or immediately following
their being made available to intended recipients, all press
releases and other statements made available generally by
Company to the public concerning material developments in the
business of Company or any of its Subsidiaries;
(vii) Events of Default, etc.: promptly upon any Responsible
Officer of Company or any Borrower obtaining knowledge (a) of
any condition or event that constitutes an Event of Default or
Potential Event of Default, or becoming aware that any Lender,
or any Agent has given any notice or taken any other action
with respect to a claimed Event of Default or Potential Event
of Default, (b) that any Person has given any notice to
Company or any of its Subsidiaries or taken any other action
with respect to a claimed default or event or condition of the
type referred to in subsection 7.2, (c) of any condition or
event that would be required to be disclosed in a current
report filed by Company with the Securities and Exchange
Commission on Form 8-K (Items 1, 2, 4 and 6 of such Form as in
effect on the date hereof) (information required to be
disclosed on Form 8-K shall be sent to Lenders when sent for
filing with the Securities and Exchange Commission), or (d) of
the occurrence of any event or change that has caused or
evidences, either individually or in the aggregate, a Material
Adverse Effect, an Officers' Certificate specifying the nature
and period of existence of such condition, event or change, or
specifying the notice given or action taken by any such Person
and the nature of such claimed Event of Default, Potential
Event of Default, default, event or condition, and what action
Company and each Borrower has taken, is taking and proposes to
take with respect thereto;
(viii) Litigation: promptly upon any Responsible Officer of
Company or any Borrower obtaining knowledge of (X) the
institution of, or threat of, any action,
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suit, proceeding, governmental investigation or arbitration
against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries (collectively,
"Proceedings") not previously disclosed in writing by Company
to Lenders or (Y) any material development in any Proceeding
that, in the case of either clause (X) or (Y) could reasonably
be expected to cause a Material Adverse Effect, written notice
thereof together with a summary of such Proceedings or
material development;
(ix) ERISA Events: promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event
which could reasonably be expected to cause a Material Adverse
Effect, a written notice specifying the nature thereof, what
action Company or any of its ERISA Affiliates has taken, is
taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue
Service, the Department of Labor or the PBGC with respect
thereto;
(x) ERISA Notices: with reasonable promptness, copies of (a)
all notices received by Company or any of its ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event
which could reasonably be expected to cause a Material Adverse
Effect; and (b) such other documents or governmental reports
or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(xi) Financial Plans: as soon as practicable and in any event
no later than 90 days after the beginning of each Fiscal Year,
(a) a copy of Company's annual budget promptly after approval
thereof by Company's Board of Directors, (b) a forecast of the
amount of capital expenditures anticipated for such Fiscal
Year, and (c) such other information and projections as any
Lender may reasonably request, all in form and substance
satisfactory to Requisite Lenders;
(xii) Environmental Audits and Reports: promptly after
completion thereof (or receipt from an independent consultant
in the case of an audit conducted by Persons who are not
employees of Company or any of its Subsidiaries), copies of
all final environmental audits and reports, whether prepared
by personnel of Company or any of its Subsidiaries or by
independent consultants, with respect to significant
environmental matters at any Facility or which relate to an
Environmental Claim which would reasonably be expected to
result in a Material Adverse Effect; and
(xiii) Other Information: with reasonable promptness, such
other information and data with respect to Company or any of
its Subsidiaries as from time to time may be reasonably
requested by any Lender.
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5.2 Corporate Existence, etc.
Except as permitted under subsection 6.7, Company will, and
will cause each of its Material Subsidiaries to, at all times preserve and keep
in full force and effect its corporate existence and all rights and franchises
material to the business of Company and its Subsidiaries, taken as a whole.
5.3 Payment of Taxes and Claims; Tax Consolidation.
A. Company will, and will cause each of its Subsidiaries to,
pay all taxes, assessments and other governmental charges imposed upon it or any
of its properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including,
without limitation, claims for labor, services, materials and supplies) for sums
that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto, except for such taxes, assessments,
governmental charges and claims which in the aggregate do not exceed $3,000,000;
provided that no such charge or claim need be paid if being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated income tax
return with any Person (other than Company or any of its Subsidiaries) for any
period ending on or after the Effective Date.
5.4 Maintenance of Properties; Insurance.
Company will, and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used in the business of
Company and its Subsidiaries, taken as a whole, or any Borrower (including,
without limitation, Intellectual Property) and from time to time will make or
cause to be made all appropriate repairs, renewals and replacements thereof.
Company will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business and
the properties and businesses of its Subsidiaries against loss or damage of the
kinds customarily carried or maintained under similar circumstances by
corporations of established reputation engaged in similar activities in the
countries where such properties or businesses are located.
5.5 Inspection; Lender Meeting; Reports of Subsidiaries.
Company and Borrowers shall, and shall cause each of their
respective Subsidiaries to, permit any authorized representatives designated by
any Lender, at the expense of such Lender, to visit and inspect any of the
properties of Company, any Borrower or any of their respective Subsidiaries,
including its and their financial and accounting records, and, subject to the
provisions of subsection 10.21, to make copies and take extracts therefrom, and
to discuss its and their affairs, finances and accounts with its and their
officers, all upon reasonable notice and
86
at such reasonable times during normal business hours and as often as may be
reasonably requested. Without in any way limiting the foregoing, Company will,
upon the request of Administrative Agent or Requisite Lenders, participate in a
meeting of Agents and Lenders once during each Fiscal Year to be held at
Company's corporate offices (or such other location as may be agreed to by
Company and Administrative Agent) at such time as may be agreed to by Company
and Administrative Agent. Until the Prime Acquisition Date, Company shall cause
Lenders to be added to the lists maintained by Prime of Persons to receive
reports of the type described in subsection 5.1(vi).
5.6 Compliance with Laws, etc.
Company shall, and shall cause each of its Subsidiaries to,
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which in any case or in
the aggregate would reasonably be expected to cause a Material Adverse Effect.
5.7 Environmental Disclosure and Inspection.
A. Company shall, and shall cause each of its Subsidiaries to,
exercise all due diligence in order to comply with all Environmental Laws where
failure to do so would reasonably be expected to result in a Material Adverse
Effect.
B. Company shall promptly advise Lenders in writing and in
reasonable detail of (i) any Release of any Hazardous Materials that would
reasonably be expected to result in a Material Adverse Effect, (ii) any and all
written communications with respect to any Environmental Claims that would
reasonably be expected to result in a Material Adverse Effect, (iii) any
remedial action taken by or at the direction of Company in response to (x) any
Hazardous Materials on, under or about any Facility, the existence of which
would reasonably be expected to result in an Environmental Claim having a
Material Adverse Effect, or (y) any Environmental Claim that would reasonably be
expected to result in a Material Adverse Effect, (iv) Company's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of any
Facility that could cause such Facility or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use thereof under
any Environmental Laws and which would reasonably be expected to result in a
Material Adverse Effect, and (v) any request for information from any
governmental agency that indicates such agency is investigating whether Company
or any of its Subsidiaries may be potentially responsible for a Release of
Hazardous Materials, the remediation of which would reasonably be expected to
have a Material Adverse Effect.
C. Company shall promptly notify Lenders of any proposed
acquisition of stock, assets, or property by Company or any of its Subsidiaries
that would reasonably be expected to expose Company or any of its Subsidiaries
to, or result in, Environmental Claims that would reasonably be
87
expected to result in a Material Adverse Effect or that would reasonably be
expected to have an adverse effect on any material Governmental Authorization
then held by Company or any of its Subsidiaries.
D. Company shall provide copies of such documents or
information as Administrative Agent may reasonably request in relation to any
matters disclosed pursuant to this subsection 5.7.
5.8 Company's Remedial Action Regarding Hazardous Materials.
Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary remedial action in
connection with the presence, storage, use, disposal, transportation or Release
of any Hazardous Materials on, under or about any Facility in order to comply
with all applicable Environmental Laws and undisputed Governmental
Authorizations where failure to comply would reasonably be expected to result in
a Material Adverse Effect. If Company or any of its Subsidiaries undertakes any
remedial action with respect to any Hazardous Materials on, under or about any
Facility, Company or such Subsidiary shall conduct and complete such remedial
action in material compliance with all applicable material Environmental Laws,
and in accordance with the policies, orders and directives of all federal, state
and local governmental authorities except when, and only to the extent that,
Company's or such Subsidiary's liability, including with respect to such
presence, storage, use, disposal, transportation or discharge of any Hazardous
Materials, or the jurisdiction or the authority or the validity or the
applicability of the Environmental Laws or the policies, orders or directions is
being contested in good faith by Company or such Subsidiary.
5.9 Further Assurances.
At any time or from time to time upon the request of
Administrative Agent, Company and Borrowers shall execute and deliver such
further documents and do such other acts and things as Administrative Agent may
reasonably request in order to effect fully the purposes of this Agreement and
to provide for payment of the Obligations in accordance with the terms of this
Agreement, the Notes and the Grid Gold Acknowledgements.
5.10 Year 2000 Compliance.
Any reprogramming required to permit the proper functioning,
in and following the year 2000, of (i) the Company's and each Borrower's
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Company's or any
Borrower's systems interface) and the testing of all such systems and equipment,
as so reprogrammed, will be completed by October 1, 1999, or, with respect to
financial systems, July 1, 1999, except where the failure to complete such
programming could not reasonably be expected to have a Material Adverse Effect.
The cost to the Company or any Borrower of such reprogramming and testing and of
the reasonably foreseeable consequences of year 2000 to the Company or any
Borrower (including, without limitation, reprogramming errors and the failure of
others' systems or equipment) will not result in an Event of Default or a
Material Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of the
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Company and each Borrower and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit Company and each Borrower to conduct its business without a
Material Adverse Effect.
Section 6. NEGATIVE COVENANTS
Company and each Borrower severally covenant and agree that,
so long as any of the Overall Commitments hereunder shall remain in effect and
until payment in full of all of the Loans and other Obligations, the
cancellation or expiration of all Letters of Credit and Bankers' Acceptances and
the reimbursement of all amounts drawn thereunder, Company and each Borrower
shall perform all covenants in this Section 6 to be performed by it (including,
in the case of any Borrower, covenants applicable to it in its capacity as a
Subsidiary of Company), and Company and each Borrower shall cause each of their
respective Subsidiaries to perform all covenants in this Section 6 applicable to
such Subsidiary.
6.1 Indebtedness.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company and Borrowers may become and remain liable
with respect to their respective Obligations;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness arising in respect of Contingent
Obligations permitted by subsection 6.4;
(iii) Company may become and remain liable with respect to
Indebtedness to any of its Subsidiaries, and any Subsidiary of
Company (other than Agua de la Falda S.A., Lachlan Resources
N.L. and , prior to the Prime Acquisition Date, Prime) may
become and remain liable with respect to Indebtedness to
Company or any other Subsidiary of Company and Agua de la
Falda S.A., Lachlan Resources N.L. and, prior to the Prime
Acquisition Date, Prime may become and remain liable with
respect to Indebtedness to Company or any other Subsidiary of
Company up to a maximum of $50,000,000 aggregate principal
amount (for all such companies) at any time outstanding;
provided that all such intercompany Indebtedness shall be
subordinated on the same terms as the subordination provisions
of subsection 8.1B in right of payment to the payment in full
of the Obligations;
(iv) Company and its Subsidiaries, as applicable, may remain
liable with respect to Indebtedness described in Schedule 6.1
annexed hereto;
(v) Company may become and remain liable with respect to
the Subordinated Debentures;
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(vi) Company or Canadian Borrower may become and remain liable
with respect to the New Subordinated Indebtedness;
(vii) Agua de la Falda S.A., Lachlan Resources N.L. and, prior
to the Prime Acquisition Date, Prime, may become and remain
liable with respect to any amount of Indebtedness incurred in
the ordinary course of business, which Indebtedness may be
secured by Liens on the assets and properties of such company;
provided that the holders of such Indebtedness have no
recourse against Company or any of its Subsidiaries other than
the company incurring such Indebtedness, including, without
limitation, any recourse that would arise by reason of any
direct financial guaranty or any letter of credit or
performance or solvency guaranties, representations or
warranties made or entered into in connection with the
incurrence or creation of such Indebtedness;
(viii) (a) Australian Borrowers, Canadian Borrower, (prior to
the Prime Acquisition Date) Prime, and any Subsidiary of
Company (other than U.S. Borrower) that does not own assets
included in the Mining Group may become and remain liable with
respect to Indebtedness secured solely by Liens on (i) assets
and properties owned on the Effective Date that are
undeveloped or (ii) assets and properties where such assets
and properties or the Subsidiary of Company owning such assets
and properties are acquired after the Effective Date and not
adjacent to or relating to any Mining Group properties
existing as of the Effective Date and (b) U.S. Borrower may
become and remain liable with respect to Indebtedness secured
solely by Liens on assets and properties owned on the
Effective Date that are undeveloped; provided that the
aggregate principal amount of Indebtedness outstanding
pursuant to clauses (a) and (b) above shall not at any time
exceed $500,000,000 in the aggregate; provided further that
Requisite Lenders shall be satisfied that such Indebtedness
outstanding pursuant to clause (a) or (b) above is
Non-Recourse Debt;
(ix) (a) Subsidiaries of Borrowers may become and remain
liable with respect to additional Indebtedness in an aggregate
outstanding principal amount not at any time exceeding
$50,000,000 and (b) Borrowers may become and remain liable
with respect to additional Indebtedness in an aggregate
outstanding principal amount not at any time exceeding
$170,000,000 less the then outstanding principal amount of
Indebtedness of Subsidiaries of Borrowers pursuant to clause
(a) above; and
(x) Company and its Subsidiaries may become and remain liable
in respect of any refinancing or extension of any Indebtedness
described in this subsection 6.1 for amounts not exceeding the
principal amounts of the Indebtedness so refunded or extended
and with maturities no earlier than such Indebtedness and if
secured, only by the property theretofore securing such
Indebtedness; provided that amounts refinancing such
Indebtedness shall be included in the calculation of any
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numerical limitations in the relevant clause of this
subsection 6.1 pursuant to which such Indebtedness was
originally permitted.
6.2 Liens and Related Matters.
A. Prohibition on Liens. Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, create, incur, assume
or permit to exist any Lien on or with respect to any property or asset of any
kind (including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits, except:
(i) Permitted Encumbrances;
(ii) Liens described in Schedule 6.2 annexed hereto;
(iii) Purchase Money Security Interests securing up to an
aggregate principal amount of $100,000,000 at any time of
Indebtedness permitted to be outstanding under subsection
6.1(ix); and
(iv) Liens securing Indebtedness permitted to be outstanding
under subsections 6.1(vii) and (viii), and as provided in
subsection 6.1(x).
B. Equitable Lien in Favor of Lenders. If Company or any of
its Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, to secure Indebtedness other
than Liens excepted by the provisions of subsection 6.2A, it shall make or cause
to be made effective provision whereby the Obligations will be secured by such
Lien equally and ratably with any and all other Indebtedness secured thereby as
long as any such other Indebtedness shall be so secured; provided that,
notwithstanding the foregoing, this covenant shall not be construed as a consent
by Requisite Lenders to the creation or assumption of any such Lien not
permitted by the provisions of subsection 6.2A.
C. No Restrictions on Subsidiary Distributions to Company or
Other Subsidiaries. Except as set forth in Schedule 6.2, and except in respect
of Indebtedness permitted by subsections 6.1(vii) and (viii) and also, with
respect to clause (iv) below, except with respect to properties dedicated under
Joint Ventures and in respect of Indebtedness secured by Purchase Money Security
Interests, and except for permitted refinancings of such Indebtedness, and as
provided herein, Company will not, and will not permit any of its Subsidiaries
to, create or otherwise cause or suffer to exist or become effective any
consensual prohibition of any kind on the ability of any such Subsidiary to (i)
pay dividends or make any other distributions on any of such Subsidiary's
capital stock owned by Company or any other Subsidiary of Company, (ii) repay or
prepay any Indebtedness owed by such Subsidiary to Company or any other
Subsidiary of Company, (iii) make loans or advances to Company or any other
Subsidiary of Company, or (iv) transfer any of its property or assets to Company
or any other Subsidiary of
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Company; provided that any restrictions based on financial or other tests (not
effectively acting as prohibitions) shall not be deemed prohibitions.
6.3 Investments; Joint Ventures.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Marketable Securities;
(ii) Company and its Subsidiaries may make intercompany loans
to the extent permitted under subsection 6.1(iii);
(iii) [Reserved];
(iv) Company and its Subsidiaries may continue to own the
Investments owned by them and described in Schedule 6.3
annexed hereto or, if not described in Schedule 6.3, in the
aggregate not exceeding $20,000,000;
(v) Company and its Subsidiaries may continue to own and make
Investments in or make acquisitions of businesses
substantially similar to those currently conducted by Company
or in related industries and Borrowers and their Subsidiaries
may make Investments in new and existing Subsidiaries;
provided that any such Investments are permitted by the
provisions of subsection 6.7(v);
(vi) Borrowers and their respective Subsidiaries may acquire
and retain ownership of Investments in connection with Asset
Sales permitted by subsection 6.7(iv); provided that the
aggregate net amount of all such Investments described in this
subsection 6.3(vi) shall not at any time exceed $100,000,000;
and provided further, however, that for purposes of compliance
with this subsection 6.3(vi) Asset Sales involving the
simultaneous receipt of notes and sale of such notes to a
third party shall be excluded;
(vii) Company and its Subsidiaries may make and own
Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(viii) Company and its Subsidiaries may make and own
Investments with respect to Contingent Obligations which are
permitted by subsection 6.4; and
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(ix) Company and its Subsidiaries may make and continue to own
Investments in, and may make and own Investments resulting
from capital calls, buyout obligations or similar requirements
in respect of, Joint Ventures in the ordinary course of
business.
6.4 Contingent Obligations.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation, except:
(i) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations (a) in respect of
Letters of Credit, or (b) set forth in this Agreement;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations under Interest Rate
Protection Agreements having a notional principal amount not
exceeding $100,000,000 with respect to Indebtedness permitted
under subsection 6.1;
(iii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of
customary indemnification and purchase price adjustment
obligations incurred in connection with sales of assets
permitted under subsection 6.7;
(iv) Company and its Subsidiaries may guarantee any
obligations of their respective Subsidiaries (including Joint
Ventures) provided that the aggregate amount guaranteed does
not exceed $200,000,000;
(v) Company and U.S. Borrower, as applicable, may become and
remain liable with respect to guaranties of New Subordinated
Indebtedness that are subordinated to the Obligations;
(vi) Company and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in
Schedule 6.4 annexed hereto;
(vii) Company and its Subsidiaries may become and remain
liable with respect to gold futures, options or forward sales
contracts and Currency Protection Agreements or similar
arrangements designed to protect Company or any of its
Subsidiaries against fluctuations in the price of Gold or the
relative exchange rates for currencies in accordance with
current industry practice or the past practices of Company and
its Subsidiaries and in the ordinary course of the Company's
and its Subsidiaries' business;
(viii) Company and its Subsidiaries may become and remain
liable with respect to (a) standby letters of credit with
respect to pollution control bonds identified on Schedule 6.4
and refinancings thereof and Contingent Obligations in respect
of
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standby letters of credit, surety bonds and guaranties
securing reclamation and other performance obligations under
contracts, permits, statutes and regulations and made in the
ordinary course of business, but not including Indebtedness or
Contingent Obligations of Company and its Subsidiaries for
borrowed money or as described in subsection 6.4(vi), and (b)
standby letters of credit and surety bonds securing
Indebtedness or Contingent Obligations of Company and its
Subsidiaries for borrowed money or to support Contingent
Obligations described in subsections 6.4(ii) through (iv) and
subsection 6.4(vi) in an aggregate amount not exceeding
$100,000,000 at any time, it being understood that all letters
of credit and surety bonds for which Company and its
Subsidiaries are liable shall be permitted only under
subsection 6.4(i) or this subsection 6.4(vii); and
(ix) Company and its Subsidiaries may become liable for
reimbursement obligations to providers of credit enhancement
for the New Subordinated Indebtedness; provided such
reimbursement obligations are subordinated to repayment of the
Obligations on the same terms as the New Subordinated
Indebtedness.
6.5 Restricted Junior Payments.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Junior Payment; provided that (i) so long as (a) no
Event of Default or (b) Potential Event of Default under subsections 7.1 or 7.6,
shall have occurred and be continuing, or result from such payment, (w) Company
and its Subsidiaries may make scheduled payments of interest on the Subordinated
Debentures and the New Subordinated Indebtedness in accordance with their terms
from all available sources, (x) Company and its Subsidiaries may pay principal
and interest on Subordinated Indebtedness other than the Subordinated Debentures
and the New Subordinated Indebtedness, (y) Subsidiaries may pay dividends to
their respective shareholders, and (z) Company and Subsidiaries may redeem their
capital stock, (ii) so long as no Event of Default or Potential Event of Default
shall have occurred and be continuing or result from such payment, Company and
its Subsidiaries may redeem the Subordinated Debentures and the New Subordinated
Indebtedness, (iii) Company and its Subsidiaries may redeem outstanding HCI
Exchangeable Stock by the issuance of Company common stock and pay accrued and
unpaid dividends on outstanding HCI Exchangeable Stock and (iv) Company and its
Subsidiaries may make Restricted Junior Payments if the proceeds of such
payments are used to cure an Event of Default or Potential Event of Default and
no Event of Default or Potential Event of Default will result from the making of
such payment.
6.6 Financial Covenants.
A. Minimum Consolidated Net Worth. Company shall not
permit Consolidated Net Worth at any time to be less than $500,000,000.
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B. Leverage Ratio. Company shall not permit the ratio of (i)
Consolidated Total Debt to (ii) the sum of Consolidated Net Worth plus
Consolidated Total Debt at any time to exceed 0.50 to 1.00.
C. Interest Coverage Ratio. Company shall not permit the ratio
of Consolidated EBITDA to Consolidated Interest Expense at the end of any fiscal
quarter after December 31, 1997 for the four fiscal quarter period then ended
(or three quarter fiscal period, in the case of the quarter ending September 30,
1998) to be less than 3.50 to 1.00.
6.7 Restriction on Fundamental Changes; Asset Sales; Certain Asset
Transfers.
A. Company shall not, and shall not permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, sub-lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any substantial part
of its business, property or fixed assets, whether now owned or hereafter
acquired, or acquire by purchase or otherwise all or substantially all the
business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person, except:
(i) any Subsidiary of Company may be merged, consolidated or
amalgamated with or into any Borrower or any Subsidiary of any
Borrower, or be liquidated, wound up or dissolved, or all or
any part of its business, property or assets may be conveyed,
sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to any Borrower or
any Subsidiary of any Borrower; provided that, in the case of
such a merger, consolidation or amalgamation with any
Borrower, such Borrower shall be the continuing or surviving
corporation and provided further that immediately after giving
effect to such merger, consolidation or amalgamation, no
Potential Event of Default or Event of Default shall have
occurred and be continuing;
(ii) [Reserved.]
(iii) subject to subsection 6.10, Company and its Subsidiaries
may sell or otherwise dispose of assets in transactions that
do not constitute Asset Sales;
(iv) Company and its Subsidiaries may make Asset Sales;
provided that the consideration received for such assets shall
be in an amount at least equal to the fair market value
thereof and that such Asset Sales do not involve the sale or
other disposition, in one transaction or a series of
transactions, of all or any substantial part of the business,
property or fixed assets of the Company and its Subsidiaries;
and provided, further, that after any such Asset Sales no
Potential Event of Default or Event of Default shall have
occurred and be continuing; and
(v) Company and its Subsidiaries may acquire Securities or
assets of another Person, including existing Subsidiaries, or
create additional Subsidiaries; provided
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that after giving effect to such acquisition, Company and its
Subsidiaries will be in compliance with all covenants set
forth in Sections 5 and 6.
B. Company shall not, and shall not permit any of its
Subsidiaries to, convey, sell, lease, sub-lease, or transfer any assets to
Lachlan Resources, N.L except in the ordinary course of business and on an
arms-length basis.
6.8 Transactions with Shareholders and Affiliates.
Except as set forth in Schedule 6.8, Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, enter into
or permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any holder of 5% or more of any class of equity Securities of Company or with
any Affiliate of Company or of any such holder, on terms that are less favorable
to Company or that Subsidiary, as the case may be, than those that might be
obtained at the time from Persons who are not such a holder or Affiliate;
provided that the foregoing restriction shall not apply to (i) any transaction
between Company and any of its wholly-owned Subsidiaries or between any of its
wholly-owned Subsidiaries or (ii) reasonable and customary fees paid to members
of the Boards of Directors of Company and its Subsidiaries.
6.9 Disposal of Material Subsidiary Stock.
Except for any disposition or sale of capital stock or other
equity Securities of any of its Material Subsidiaries in compliance with the
provisions of subsections 6.7(i) and (iv), and the issuance and any redemption
of HCI Exchangeable Stock permitted by subsection 6.5, Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other
equity Securities of any of its Material Subsidiaries, except
to qualify directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any
shares of capital stock or other equity Securities of any of
its Material Subsidiaries (including such Subsidiary), except
to Company, another Subsidiary of Company, or to qualify
directors if required by applicable law;
provided, however, that nothing contained in this Agreement shall (a) prior to
the Prime Acquisition Date, prohibit or otherwise limit the ability of Prime to
sell securities issued by it, (b) permit the capital stock of any Borrower
(other than 10% of the Canadian Borrower) to be sold or disposed of, or (c)
prohibit Investments by venturers in Joint Ventures permitted by subsection
6.3(ix).
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6.10 Conduct of Business.
From and after the Effective Date, Company shall not, and
shall not permit any of its Subsidiaries to, engage in any business other than
the businesses engaged in by Company and its Subsidiaries on the Effective Date
and similar or related businesses.
6.11 Prepayments and Amendments to Subordinated Indebtedness.
Company shall not, and shall not permit any of its
Subsidiaries to, amend or otherwise change the terms of any Subordinated
Debentures or New Subordinated Indebtedness, or make any payment consistent with
an amendment thereof or change thereto, if the effect of such amendment or
change is to increase the interest rate on such Subordinated Debentures or New
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default), change the redemption, prepayment or
defeasance provisions thereof, change the subordination provisions thereof (or
of any guaranty thereof), or change any collateral therefor (other than to
release such collateral), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the
obligations of the obligor thereunder or to confer any additional rights on the
holders of such Subordinated Debentures or New Subordinated Indebtedness (or a
trustee or other representative on their behalf) which would be adverse to
Company, any Borrower or Lenders except as permitted pursuant to subsection
6.5(iii).
Section 7. EVENTS OF DEFAULT
IF any of the following conditions or events ("Events of
Default") shall occur:
7.1 Failure to Make Payments When Due.
(i) Failure to pay any installment of principal of any Loan
when due, whether at stated maturity, by acceleration, by notice of prepayment
or otherwise; (ii) failure to pay when due any amount payable to any Issuing
Lender in reimbursement of any drawing under any Letter of Credit issued
pursuant to subsection 2.7; (iii) failure to pay when due any Bankers'
Acceptance created pursuant to subsection 2.8 at maturity; or (iv) failure to
pay any interest on any Loan or any fee or any other Obligation within five days
after the date due; or
7.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to pay when
due (a) any principal of or interest on any Indebtedness (other than
Indebtedness referred to in subsection 7.1) in an individual principal amount of
$5,000,000 or more or (b) any Contingent Obligation in an
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individual principal or face amount of $5,000,000 or more or notional principal
amount of $20,000,000 or more, in each case beyond the end of any grace period
provided therefor; or (ii) the occurrence of any event specified in (a) any
evidence of any Indebtedness in an individual principal amount of $5,000,000 or
more or any Contingent Obligation in an individual principal or face amount of
$5,000,000 or more or notional principal amount of $20,000,000 or more, or (b)
any loan agreement, mortgage, indenture or other agreement relating to such
Indebtedness or Contingent Obligation(s), in each case if the effect of such
event is to cause a default that would cause, or to permit the holder or holders
of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such
holder or holders) to cause, that Indebtedness or Contingent Obligation(s) to
become or be declared due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be; or
7.3 Breach of Certain Covenants.
Failure of Company or any Borrower, as the case may be, to
perform or comply with any term or condition contained in subsection 2.4, 2.5 or
5.2 or Section 6 of this Agreement; or
7.4 Breach of Warranty.
Any representation, warranty, certification or other statement
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Company or any of its Subsidiaries
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or
7.5 Other Defaults Under Loan Documents.
Company or any Borrower, as the case may be, shall default in
the performance of or compliance with any term contained in this Agreement or
any of the other Loan Documents, other than any such term referred to in any
other subsection of this Section 7, and such default shall not have been
remedied or waived within 30 days after the earlier of (i) a Responsible Officer
of Company or any Borrower becoming aware of such default or (ii) receipt by
Company or any Borrower of notice from any Agent or any Lender of such default;
or
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company, any Borrower
or any of Company's Subsidiaries (other than Subsidiaries
operating outside of the United States, Canada and Australia
and not constituting Material Subsidiaries ("Minor Foreign
Subsidiaries")) in an involuntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, which decree or order
is not stayed; or any other similar relief shall be granted
under any applicable federal or state law and not stayed; or
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(ii) an involuntary case shall be commenced against Company,
any Borrower or any of Company's Subsidiaries (other than
Minor Foreign Subsidiaries) under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now
or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a
receiver, administrator, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over Company,
any Borrower or any of Company's Subsidiaries (other than
Minor Foreign Subsidiaries), or over all or a substantial part
of its property, shall have been entered; or there shall have
occurred the involuntary appointment of an interim receiver,
administrator, trustee or other custodian of Company, any
Borrower or any of Company's Subsidiaries (other than Minor
Foreign Subsidiaries) for all or a substantial part of its
property; or a warrant of attachment, execution or similar
process shall have been issued against any substantial part of
the property of Company, any Borrower or any of Company's
Subsidiaries (other than Minor Foreign Subsidiaries), and any
such event described in this clause (ii) shall continue for 60
days unless dismissed, bonded or discharged; or
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Company, any Borrower or any of Company's Subsidiaries
(other than Minor Foreign Subsidiaries) shall have an order
for relief entered with respect to it or commence a voluntary
case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in
effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent
to the appointment of or taking possession by a receiver,
administrator, trustee or other custodian for all or a
substantial part of its property; or Company, any Borrower or
any of Company's Subsidiaries (other than Minor Foreign
Subsidiaries) shall make a general assignment for the benefit
of creditors; or
(ii) Company, any Borrower or any of Company's Subsidiaries
(other than Minor Foreign Subsidiaries) shall be unable or
shall fail, or shall admit in writing its inability, to
generally pay its debts as such debts become due; or the Board
of Directors of Company, any Borrower or any of Company's
Subsidiaries (other than Minor Foreign Subsidiaries) (or any
committee thereof) shall adopt any resolution or otherwise
authorize any action to approve any of the actions referred to
in clause (i) above or this clause (ii); or
7.8 Judgments and Attachments.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $5,000,000
or (ii) in the aggregate at any time an amount in excess of $10,000,000 (in
either case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Company, any Borrower or any Material Subsidiaries or any of their
respective assets (or
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shall be entered against any of Company's other Subsidiaries and Company or any
Material Subsidiary shall be or become liable therefor) and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days (or in any
event later than five days prior to the date of any proposed sale thereunder);
or
7.9 Dissolution.
Except as permitted by subsection 6.7, any order, judgment or
decree shall be entered against Company, any Borrower or any Material Subsidiary
decreeing the dissolution or split up of Company, any Borrower or any Material
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
7.10 Employee Benefit Plans.
There shall occur one or more ERISA Events which results in or
would reasonably be expected to result in liability of Company or any of its
ERISA Affiliates in an individual amount in excess of $10,000,000 or in an
aggregate amount in excess of $20,000,000 during the term of this Agreement; or
there shall exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities) as set forth in the most recent
actuarial report prepared for such Pension Plans, which exceeds $40,000,000; or
7.11 Change in Control of Borrowers.
Company shall fail to own all of the issued and outstanding
capital stock of U.S. Borrower, or U.S. Borrower shall fail to own at least 90%
of the issued and outstanding capital stock of Canadian Borrower (other than HCI
Exchangeable Stock), or Company and U.S. Borrower shall fail to collectively own
all of the issued and outstanding capital stock of Australian Borrower; or
7.12 Invalidity of Guaranty
The Company Guaranty contained in subsection 8.1 or the U.S.
Borrower Guaranty contained in subsection 8.2 for any reason, other than the
satisfaction in full of all Obligations, ceases to be in full force and effect
(other than in accordance with its terms) or is declared null and void, or any
Borrower contests the validity or enforceability of any Loan Document or denies
that it has any further liability, including without limitation with respect to
future advances by Lenders, under any Loan Document to which it gives notice to
such effect:
THEN (i) upon the occurrence and during the continuance of any Event of Default
described in the foregoing subsections 7.6 or 7.7 each of (w) the unpaid
principal amount of and accrued interest on the Loans, (x) an amount equal to
the maximum amount which may at any time be drawn under all Letters of Credit
then outstanding (whether or not any beneficiary under any
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Letter of Credit shall have presented, or shall be entitled at such time to
present, the drafts or other documents required to draw under such Letter of
Credit), (y) an amount equal to the Face Amount of all outstanding Bankers'
Acceptances, and (z) all other Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by Company
and each Borrower and the obligation of each Lender to make any Loan, the
obligation of each Issuing Lender to issue any Letter of Credit hereunder and
the obligation of each Canadian Lender to create or purchase Bankers'
Acceptances hereunder shall thereupon terminate, and (ii) upon the occurrence
and during the continuation of any other Event of Default, Administrative Agent
shall, upon the written request of Requisite Lenders, by written notice to
Company and each Borrower, declare all of the Loans to be, and an amount equal
to the amounts described in clauses (w) through (z) above to be, and the same
shall forthwith become, due and payable, together with accrued interest thereon,
and the obligation of each Lender to make any Loan, the obligation of each
Issuing Lender to issue any Letter of Credit hereunder and the obligation of
each Canadian Lender to create or purchase Bankers' Acceptances hereunder shall
thereupon terminate; provided that the foregoing shall not affect in any way the
obligations of Lenders to purchase from each Issuing Lender participations in
the unreimbursed amount of any drawings under any Letters of Credit as provided
in subsection 2.7 or to purchase the participations provided for in subsection
2.1E or 2.7.
So long as any Letter of Credit shall remain outstanding, any
amounts described in clause (x) above with respect to such Letter of Credit,
when received by the applicable Issuing Lender, shall be held by the applicable
Issuing Lender pursuant to such documentation as the applicable Issuing Lender
shall request, as cash collateral for the obligation of the applicable Borrower
to reimburse the applicable Issuing Lender in the event of any drawing under
such Letter of Credit, and so much of such funds shall at all times remain on
deposit as cash collateral as aforesaid as shall equal the maximum amount
available at any time for drawing under all Letters of Credit (the "Maximum
Available Amount"); provided that, in the event of cancellation or expiration of
any Letter of Credit or any reduction in the Maximum Available Amount, the
applicable Issuing Lender shall apply the difference between the Maximum
Available Amount immediately prior to such cancellation, expiration or reduction
and the Maximum Available Amount immediately after such cancellation or
reduction, first, to the payment in full of the outstanding Obligations, and
second, to Company or the applicable Borrower or to such other Person who may be
lawfully entitled to receive such funds or as a court of competent jurisdiction
may direct.
Any amounts described in clause (y) above, when received by
Canadian Administrative Agent, shall be held by Canadian Administrative Agent in
a collateral account over which Canadian Administrative Agent shall have sole
dominion and control upon terms that are customary to cash collateral accounts
maintained with Canadian Administrative Agent, as cash collateral for the
obligation of Canadian Borrower to pay the amount of such Bankers' Acceptances
at maturity, and at the maturity of each such Bankers' Acceptance, Canadian
Administrative Agent shall apply such amounts held pursuant to the terms of the
collateral account agreement to the payment thereof. Canadian Borrower hereby
grants Canadian Administrative Agent a security interest in any such collateral
account and all funds on deposit therein.
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At any time that an Event of Default is continuing and the
principal of any Gold Loan has been declared to be immediately due and payable,
each U.S. Lender shall be entitled, for and on behalf of U.S. Borrower, to
purchase in accordance with its normal procedures a number of Ounces of Gold
equal to the number of Ounces of Gold then comprising such Gold Loan, and to
apply the Gold so purchased to pay such Gold Loan. The all-in costs to any U.S.
Lender of purchasing such Gold, provided that any costs incurred are reasonable
in the circumstances, shall be deemed to be a U.S. Base Rate Loan to U.S.
Borrower. A certificate of a U.S. Lender as to any such all-in costs shall be
prima facie evidence of the costs to such U.S. Lender of making such purchase.
Section 8. GUARANTIES OF COMPANY AND U.S. BORROWER OF
OBLIGATIONS
In order to induce Lenders to enter into this Agreement and to
make the Loans to Borrowers hereunder and to issue Letters of Credit for the
account of Borrowers hereunder and, in the case of Canadian Lender, create and
purchase Bankers' Acceptances, each of Company and U.S. Borrower hereby agrees
as follows:
8.1 Guaranty by Company
A. Guaranty. As consideration for Lenders agreeing to enter
into this Agreement and to extend the Overall Commitments hereunder, Company
hereby unconditionally and irrevocably guarantees, as primary obligor and not
merely as a surety, and jointly and severally with U.S. Borrower as it relates
to the Obligations of Canadian Borrower and Australian Borrowers, the due and
punctual payment when due (whether by required prepayment, declaration, demand
or otherwise) (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
ss.362(a) or operation of any such stay under applicable Canadian and/or
Australian law) of all Obligations of Borrowers (including, without limitation,
interest which, but for the filing of a petition in bankruptcy with respect to
U.S. Borrower, or a similar action with respect to Canadian Borrower or any
Australian Borrower, would accrue on such Obligations). For purposes of this
Section 8, the obligations of Company under this subsection 8.1 are referred to
as this "Company Guaranty."
B. Terms of Company Guaranty
Company agrees that the Obligations of any Borrower may be
extended or renewed, and the Loans repaid and reborrowed in whole or in part,
without notice or further assent from it, and that it will remain bound upon
this Company Guaranty notwithstanding any extension, renewal or other alteration
of any such Obligation or repayment and reborrowing of the Loans.
Company waives presentation of, demand of, payment from and
protest of any Obligation of any Borrower and also waives notice of protest for
nonpayment. The obligations of Company under this Company Guaranty shall not be
affected by, and Company hereby waives its rights (to the extent permitted by
law) in connection with:
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(a) the failure of any Agent or any Lender to assert any claim
or demand or to enforce any right or remedy against any
Borrower or Company under the provisions of this Agreement or
any other agreement or otherwise,
(b) any extension or renewal of any provision thereof,
(c) any rescission, waiver, amendment or modification of any
of the terms or provisions of this Agreement or any instrument
executed pursuant hereto,
(d) the release of any security held by any Agent or any
Lender for the Obligations of any Borrower,
(e) the failure of any Agent or any Lender to exercise any
right or remedy against any other guarantor of the Obligations
of any Borrower,
(f) any Agent or any Lender taking and holding security or
collateral for the payment of this Company Guaranty, any other
guaranties of the Obligations or other liabilities of any
Borrower and the Obligations guarantied hereby, and
exchanging, enforcing, waiving and releasing any such security
or collateral,
(g) any Agent or any Lender applying any such security or
collateral and directing the order or manner of sale thereof
as such Agent or such Lender in its discretion may determine,
(h) any Agent or any Lender settling, releasing, compromising,
collecting or otherwise liquidating the Obligations and any
security or collateral therefor in any manner determined by
such Agent or such Lender, or
(i) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms
of this guaranty, including without limitation, the provisions
of California Civil Code Sections 2809, 2810, 2819, 2839,
2845, 2846, 2849, 2850, 2899 and 3433.
Without limiting the generality of the foregoing or any other
provision of this Company Guaranty, Company hereby waives any rights, defenses
and benefits which might otherwise be available to Company under California
Civil Code Sections 2787 to 2855, inclusive, and any successor sections. Company
acknowledges and agrees that all waivers of defenses arising from any impairment
of Company's rights of subrogation, reimbursement, contribution and
indemnification and waivers of any other rights, privileges, defenses or
protections available to Company by reasons of Sections 2787 to 2855, inclusive,
of the California Civil Code are intended by Company to be effective to the
maximum extent permitted by Section 2856 of the California Civil Code and other
applicable law.
Company further agrees that this Company Guaranty constitutes
a guaranty of payment when due and not of collection and waives any right to
require that any resort be had by
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any Lender, any Agent or any other Person to any security held for payment of
the Obligations of any Borrower or to any balance of any deposit account or
credit on the books of any Lender, any Agent or any other Person in favor of any
Borrower or any other Person.
The obligations of Company under this Company Guaranty shall
not be subject to any reduction, limitation, impairment or termination for any
reason, including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations, discharge of any Borrower
from the Obligations in a bankruptcy or similar proceeding or otherwise. Without
limiting the generality of the foregoing, the obligations of Company under this
Company Guaranty shall not be discharged or impaired or otherwise affected by
the failure of any Agent or any Lender to assert any claim or demand or to
enforce any remedy under this Agreement, any Loan Document or any other
agreement, by any waiver or modification of any provision thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Obligations of any Borrower, or by any other act or thing or omission or delay
to do any other act or thing that may or might in any manner or to any extent
vary the risk of Company or would otherwise operate as a discharge of Company as
a matter of law or equity other than indefeasible payment in full of all
Obligations.
Any Agent and any Lender may, at their election, foreclose on
any security held by such Agent or such Lender by one or more judicial or
nonjudicial sales, or exercise any other right or remedy any Agent or any Lender
may have against any Borrower or any security without affecting or impairing in
any way the liability of Company hereunder except to the extent the Obligations
have been indefeasibly paid. Company waives any defense arising out of such
election by any Agent or any Lender, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of Company against any Borrower or any security, so long as such Agent or
such Lender act in a commercially reasonable manner.
Company further agrees that this Company Guaranty shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation of
any Borrower is rescinded or must otherwise be restored by any Agent or any
Lender upon the bankruptcy or reorganization of any Borrower or otherwise.
Company further agrees, in furtherance of the foregoing and
not in limitation of any other right that any Agent or any Lender may have at
law or in equity against Company by virtue hereof, upon the failure of any
Borrower to pay any of its Obligations when and as the same shall become due
(whether by required prepayment, declaration, demand or otherwise), Company will
forthwith pay, or cause to be paid, in cash, to Administrative Agent an amount
equal to the sum of the unpaid principal amount of such Obligations, accrued and
unpaid interest on such Obligations and all other unpaid Obligations of such
Borrower to any Agent or any Lender.
Company hereby irrevocably agrees to waive, until the
Obligations have been paid in full and the Commitments shall have terminated,
any exercise of any right of subrogation, contribution, indemnity or otherwise
against any Borrower that may arise out of or be caused by
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this Company Guaranty, all rights and/or claims which may arise against any
Borrower by reason of this Company Guaranty, any right to enforce any remedy
that any Agent or any Lender now has or may hereafter have against any Borrower
and any benefit of, and any right to participate in, any security now or
hereafter held by any Agent or any Lender.
Any Indebtedness of any of Company's Subsidiaries held by
Company is hereby subordinated in right of payment to the Obligations on the
terms of this paragraph. Upon the occurrence and during the continuation of an
Event of Default, no distribution of assets in respect of any such Indebtedness
(including any payment of principal, interest or fees or any repurchase,
redemption or setoff of such Indebtedness against other Indebtedness owing to
Company or payment received as a result of other Indebtedness being subordinated
to such Indebtedness) may be made until indefeasible payment in full in cash of
all Obligations. If, notwithstanding the preceding sentence, any such
distribution of assets shall be collected or received by Company after the
occurrence and during the continuation of an Event of Default, such distribution
of assets shall be paid over to Administrative Agent for the benefit of Lenders
to be held as collateral and then or thereafter credited and applied against the
Obligations but without impairing or limiting in any manner the liability of
Company under any other provision of this Section 8.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon any failure
of any Borrower to pay its Obligations when due (whether by required prepayment,
declaration, demand or otherwise) and consequent acceleration of the Obligations
pursuant to Section 7, any Agent and any Lender, upon the consent of
Administrative Agent and Requisite Lenders, is hereby authorized by Company at
any time or from time to time, without notice to Company or to any other Person,
any such notice being hereby expressly waived to the extent permitted by
applicable law, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time owing by such Agent or such
Lender to or for the credit or the account of Company against and on account of
the obligations and liabilities of Company to such Agent or such Lender under
this Company Guaranty, including, but not limited to, all such obligations and
liabilities with respect to all claims of any nature or description arising out
of or connected with this Agreement, this Company Guaranty or the Letters of
Credit or Bankers' Acceptances or any of the other Loan Documents, irrespective
of whether or not such Agent or such Lender or Administrative Agent, with
respect to any Obligation owed under the Letters of Credit, Bankers' Acceptances
or this Agreement, shall have made any demand hereunder.
8.2 Guaranty by U.S. Borrower
A. Guaranty. As consideration for Lenders agreeing to enter
into this Agreement and to extend the Overall Commitments hereunder, U.S.
Borrower hereby unconditionally and irrevocably guarantees, as a primary obligor
and not merely as a surety, and jointly and severally with Company as it relates
to the Obligations of Canadian Borrower and Australian Borrowers, the due and
punctual payment when due (whether by required prepayment, declaration, demand
or otherwise) (including amounts that would become due but for the
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operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. ss.362(a) or operation of any such stay under applicable Canadian and/or
Australian law) of all Obligations of Canadian Borrower and Australian Borrowers
(including, without limitation, interest which, but for the filing of a petition
in bankruptcy or a similar action with respect to Canadian Borrower or any
Australian Borrower, would accrue on such Obligations). For purposes of this
Section 8, the obligations of U.S. Borrower under this subsection 8.2 are
referred to as this "U.S. Borrower Guaranty."
B. Terms of U.S. Borrower Guaranty
U.S. Borrower agrees that the Obligations of Canadian Borrower
and Australian Borrowers may be extended or renewed, and the Loans repaid and
reborrowed in whole or in part, without notice or further assent from it, and
that it will remain bound upon this U.S. Borrower Guaranty notwithstanding any
extension, renewal or other alteration of any such Obligation or repayment and
reborrowing of the Loans.
U.S. Borrower waives presentation of, demand of, payment from
and protest of any Obligation of Canadian Borrower or any Australian Borrower
and also waives notice of protest for nonpayment. The obligations of U.S.
Borrower under this U.S. Borrower Guaranty shall not be affected by, and U.S.
Borrower hereby waives its rights (to the extent permitted by law) in connection
with:
(a) the failure of any Agent or any Lender to assert any claim
or demand or to enforce any right or remedy against Canadian
Borrower, any Australian Borrower or U.S. Borrower under the
provisions of this Agreement or any other agreement or
otherwise,
(b) any extension or renewal of any provision thereof,
(c) any rescission, waiver, amendment or modification of any
of the terms or provisions of this Agreement or any instrument
executed pursuant hereto, (d) the release of any security held
by any Agent or any Lender for the Obligations of Canadian
Borrower or any Australian Borrower,
(e) the failure of any Agent or any Lender to exercise any
right or remedy against any other guarantor of the Obligations
of Canadian Borrower or any Australian Borrower,
(f) any Agent or any Lender taking and holding security or
collateral for the payment of this U.S. Borrower Guaranty, any
other guaranties of the Obligations or other liabilities of
Canadian Borrower or any Australian Borrower and the
Obligations guarantied hereby, and exchanging, enforcing,
waiving and releasing any such security or collateral,
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(g) any Agent or any Lender applying any such security or
collateral and directing the order or manner of sale thereof
as such Agent or such Lender in its discretion may determine,
(h) any Agent or any Lender settling, releasing, compromising,
collecting or otherwise liquidating the Obligations of
Canadian Borrower or any Australian Borrower and any security
or collateral therefor in any manner determined by such Agent
or such Lender, or
(i) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms
of this guaranty, including without limitation, the provisions
of California Civil Code Sections 2809, 2810, 2819, 2839,
2845, 2846, 2849, 2850, 2899 and 3433.
Without limiting the generality of the foregoing or any other
provision of this U.S. Borrower Guaranty, U.S. Borrower hereby waives any
rights, defenses and benefits which might otherwise be available to U.S.
Borrower under California Civil Code Sections 2787 to 2855, inclusive, and any
successor sections. U.S. Borrower acknowledges and agrees that all waivers of
defenses arising from any impairment of U.S. Borrower's rights of subrogation,
reimbursement, contribution and indemnification and waivers of any other rights,
privileges, defenses or protections available to U.S. Borrower by reasons of
Sections 2787 to 2855, inclusive, of the California Civil Code are intended by
U.S. Borrower to be effective to the maximum extent permitted by Section 2856 of
the California Civil Code and other applicable law.
U.S. Borrower further agrees that this U.S. Borrower Guaranty
constitutes a guaranty of payment when due and not of collection and waives any
right to require that any resort be had by any Lender, any Agent or any other
Person to any security held for payment of the Obligations of Canadian Borrower
or any Australian Borrower or to any balance of any deposit account or credit on
the books of any Lender, any Agent or any other Person in favor of Canadian
Borrower or any Australian Borrower or any other Person.
The obligations of U.S. Borrower under this U.S. Borrower
Guaranty shall not be subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations, discharge
of Canadian Borrower or any Australian Borrower from the Obligations in a
bankruptcy or similar proceeding or otherwise. Without limiting the generality
of the foregoing, the obligations of U.S. Borrower under this U.S. Borrower
Guaranty shall not be discharged or impaired or otherwise affected by the
failure of any Agent or any Lender to assert any claim or demand or to enforce
any remedy under this Agreement, any Loan Document or any other agreement, by
any waiver or modification of any provision thereof, by any default, failure or
delay, willful or otherwise, in the performance of the Obligations of Canadian
Borrower or any Australian Borrower, or by any other act or thing or omission or
delay to do any other act or thing that may or might in any manner or to any
extent
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vary the risk of U.S. Borrower or would otherwise operate as a discharge of U.S.
Borrower as a matter of law or equity other than indefeasible payment in full of
all Obligations.
Any Agent and any Lender may, at their election, foreclose on
any security held by such Agent or such Lender by one or more judicial or
nonjudicial sales, or exercise any other right or remedy any Agent or any Lender
may have against Canadian Borrower or any Australian Borrower or any security
without affecting or impairing in any way the liability of U.S. Borrower
hereunder except to the extent the Obligations of Canadian Borrower and
Australian Borrowers have been indefeasibly paid. U.S. Borrower waives any
defense arising out of such election by any Agent or any Lender, even though
such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of U.S. Borrower against Canadian Borrower
or any Australian Borrower or any security, so long as any Agent or such Lender
act in a commercially reasonable manner.
U.S. Borrower further agrees that this U.S. Borrower Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any Obligation
of Canadian Borrower or any Australian Borrower is rescinded or must otherwise
be restored by any Agent or any Lender upon the bankruptcy or reorganization of
Canadian Borrower or any Australian Borrower or otherwise.
U.S. Borrower further agrees, in furtherance of the foregoing
and not in limitation of any other right that any Agent or any Lender may have
at law or in equity against Company by virtue hereof, upon the failure of
Canadian Borrower or any Australian Borrower to pay any of its Obligations when
and as the same shall become due (whether by required prepayment, declaration,
demand or otherwise), U.S. Borrower will forthwith pay, or cause to be paid, in
cash, to Administrative Agent an amount equal to the sum of the unpaid principal
amount of such Obligations, accrued and unpaid interest on such Obligations and
all other unpaid Obligations of Canadian Borrower and Australian Borrowers to
any Agent or any Lender.
U.S. Borrower hereby irrevocably waives, until the Obligations
have been paid in full and the Commitments shall have terminated, any right of
subrogation, contribution, indemnity or otherwise against Canadian Borrower or
any Australian Borrower that may arise out of or be caused by this U.S. Borrower
Guaranty, all rights and/or claims which may arise against Canadian Borrower or
any Australian Borrower by reason of this U.S. Borrower Guaranty, any right to
enforce any remedy that any Agent or any Lender now has or may hereafter have
against Canadian Borrower or any Australian Borrower and any benefit of, and any
right to participate in, any security now or hereafter held by any Agent or any
Lender.
Any Indebtedness of Company or any of its Subsidiaries held by
U.S. Borrower is hereby subordinated in right of payment to the Obligations on
the terms of this paragraph. Upon the occurrence and during the continuation of
an Event of Default, no distribution of assets in respect of any such
Indebtedness (including any payment of principal, interest or fees or any
repurchase, redemption or setoff of such Indebtedness against other Indebtedness
owing to U.S. Borrower or payment received as a result of other Indebtedness
being subordinated to such Indebtedness) may be made until indefeasible payment
in full in cash of all Obligations. If,
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notwithstanding the preceding sentence, any such distribution of assets shall be
collected or received by U.S. Borrower after the occurrence and during the
continuation of an Event of Default, such distribution of assets shall be paid
over to Administrative Agent for the benefit of Lenders to be held as collateral
and then or thereafter credited and applied against the Obligations but without
impairing or limiting in any manner the liability of U.S. Borrower under any
other provision of this Section 8.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon any failure
of Canadian Borrower or any Australian Borrower to pay its Obligations when due
(whether by required prepayment, declaration, demand or otherwise) and
consequent acceleration of the Obligations pursuant to Section 7, any Agent and
any Lender, upon the consent of Administrative Agent and Requisite Lenders, is
hereby authorized by U.S. Borrower at any time or from time to time, without
notice to U.S. Borrower or to any other Person, any such notice being hereby
expressly waived to the extent permitted by applicable law, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time owing by such Agent or such Lender to or for the credit
or the account of U.S. Borrower against and on account of the obligations and
liabilities of U.S. Borrower to such Agent or such Lender under this U.S.
Borrower Guaranty, including, but not limited to, all such obligations and
liabilities with respect to all claims of any nature or description arising out
of or connected with this Agreement, this U.S. Borrower Guaranty or the Letters
of Credit or Bankers' Acceptances or any of the other Loan Documents,
irrespective of whether or not such Agent or such Lender or Administrative
Agent, with respect to any Obligation owed under the Letters of Credit, Bankers'
Acceptances or this Agreement, shall have made any demand hereunder.
Section 9. AGENTS
9.1 Appointment.
Chase is hereby appointed Administrative Agent under this
Agreement and under the other Loan Documents by each Lender, Chase Canada is
hereby appointed Canadian Administrative Agent under this Agreement and under
the other Loan Documents by each Lender, Chase Securities Australia Limited is
hereby appointed Australian Administrative Agent under this Agreement and under
the other Loan Documents by each Lender and Deutsche Bank is hereby appointed
Documentation Agent under this Agreement and under the other Loan Documents by
each Lender. Each Lender hereby authorizes each Agent to act as its agents in
accordance with the terms of this Agreement and the other Loan Documents. Each
Agent agrees to act upon the express conditions contained in this Agreement and
the other Loan Documents, as applicable. Except as expressly set forth in this
Section 9, the provisions of this Section 9 are solely for the benefit of Agents
and Lenders, and neither Company nor any Borrower shall have any rights as a
third party beneficiary of any of the provisions hereof, but Company and
Borrowers shall have the rights expressly granted to them in subsection 9.6. In
performing its functions and duties under this Agreement, each Agent shall act
solely as an agent of Lenders and
109
does not assume and shall not be deemed to have assumed any obligation towards
or relationship of agency or trust with or for Company or any Borrower or any of
Company's Subsidiaries.
9.2 Powers; General Immunity.
A. Duties Specified. Each Lender irrevocably authorizes each
Agent to take such action on such Lender's behalf and to exercise such powers
under this Agreement and under the other Loan Documents as are specifically
delegated to such Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto. Each Agent shall have only those
duties and responsibilities that are expressly specified in this Agreement and
the other Loan Documents and each such Agent may perform such duties by or
through its agents or employees. No Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, express or implied, is intended to or shall be so construed as to
impose upon such Agent any obligations in respect of this Agreement or any of
the other Loan Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. No Agent shall be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statement or in
any financial or other statements, instruments, reports or certificates or any
other documents furnished or made available by any Agent to Lenders or by or on
behalf of Company or Borrowers to such Agent or any Lender in connection with
the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company, any Borrower or any other
Person liable for the payment of any Obligations, nor shall any Agent be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Loan Documents or as to the use of the proceeds of the Loans or Bankers'
Acceptances or the use of Letters of Credit or as to the existence or possible
existence of any Event of Default or Potential Event of Default. Anything
contained in this Agreement to the contrary notwithstanding, no Agent shall have
any liability arising from confirmations of the amount of outstanding Loans or
the Canadian Letter of Credit Usage, the U.S. Letter of Credit Usage, the
Australian Letter of Credit Usage, the BA Usage or the component amounts
thereof.
C. Exculpatory Provisions. No Agent and none of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by such Agent hereunder or in connection herewith except to the
extent caused by its or their gross negligence or willful misconduct, as finally
determined by a court of competent jurisdiction. If any Agent shall request
instructions from Lenders with respect to any act or action (including the
failure to take an action) in connection with this Agreement or any of the other
Loan Documents, such Agent shall be entitled to refrain from such act or taking
such action unless and until such Agent shall have received instructions from
Requisite Lenders or all Lenders, as the case may be. Without prejudice to the
generality of the foregoing, (i) each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any communication, instrument or document
believed to be
110
genuine and correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Company and
Borrower and Company's Subsidiaries), accountants, experts and other
professional advisors selected by any of them; and (ii) no Lender shall have any
right of action whatsoever against any Agent as a result of such Agent acting or
(where so instructed) refraining from acting under this Agreement or any of the
other Loan Documents in accordance with the instructions of Requisite Lenders or
all Lenders, as the case may be. Each Agent shall be entitled to refrain from
exercising any power, discretion or authority vested in it under this Agreement
or any of the other Loan Documents unless and until it has obtained the
instructions of Requisite Lenders or all Lenders, as the case may be.
D. Agents Entitled to Act as Lenders. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, any Agent in its individual capacity as a
Lender under this Agreement. With respect to its participation in the Loans,
Letters of Credit and Bankers' Acceptances, each Agent shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not performing the duties and functions delegated to it
hereunder, and the term "Lender" or "Lenders" or any similar term shall, unless
the context clearly otherwise indicates, include each Agent in its individual
capacity. Each Agent and each of its Affiliates may accept deposits from, lend
money to and generally engage in any kind of banking, trust, financial advisory
or other business with Company, any Borrower or any of Company's Affiliates as
if it were not performing the duties specified herein, and may accept fees and
other consideration from Company and Borrowers for services in connection with
this Agreement and otherwise without having to account for the same to Lenders.
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company,
each Borrower and Company's Subsidiaries in connection with the making of the
Loans hereunder and the issuance of Letters of Credit hereunder and such
Lender's purchasing of participations in such Letters of Credit and, in the case
of each Canadian Lender, the creation and purchase of Bankers' Acceptances, and
that it has made and shall continue to make its own appraisal of the
creditworthiness of Company, each Borrower and Company's Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or
the issuance of the Letters of Credit or the creation and purchase of Bankers'
Acceptances or at any time or times thereafter, and no Agent shall have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
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9.4 Right to Indemnity.
The Lenders of each Lending Unit in proportion to their
Lending Unit's Pro Rata Share, severally with the Lenders of each other Lending
Unit agree to indemnify each Agent (and their respective directors, officers,
employees and agents), to the extent that such Agent (or any of their respective
directors, officers, employees and agents) shall not have been reimbursed by
Company or Borrowers, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements) or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against such Agent (or their respective directors, officers, employees
and agents) in performing its duties hereunder or under this Agreement or the
other Loan Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's (or any such director's,
officer's, employee's or agent's) gross negligence or willful misconduct, as
finally determined by a court of competent jurisdiction. If any indemnity
furnished to any Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished but shall not include any losses suffered by
an Agent under subsection 2.1C(iv) or otherwise as a result of another Lender's
default hereunder.
9.5 Registered Persons Treated as Owners.
Each Agent may deem and treat the Persons listed as Lenders in
the Register as the owners of the corresponding Loans or participations in
Letters of Credit or Bankers' Acceptances listed therein for all purposes hereof
unless and until an Assignment and Acceptance effecting the assignment or
transfer thereof shall have been accepted by Administrative Agent and recorded
in the Register as provided in subsection 10.1B(ii) of this Agreement. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent holder, transferee or
assignee of the corresponding Loan or participation in Letters of Credit or
Bankers' Acceptance.
9.6 Successor Agents.
Any Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders, Company and Borrowers, and such Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to Company, Borrowers, such Agent and
Administrative Agent as the case may be, and signed by Requisite Lenders. Upon
any such notice of resignation or any such removal, Requisite Lenders shall have
the right, upon five Business Days' notice to Company and Borrowers, to appoint
a successor Agent; provided that if such proposed successor Agent is not a
Lender, Company and Borrowers shall have the right to approve such appointment
(which approval may not be unreasonably withheld or delayed). Upon the
acceptance of any appointment as an Agent hereunder by a
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successor Agent, that successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Agent and the retiring or removed Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring or removed
Agent's resignation or removal hereunder as an Agent, the provisions of this
subsection 9.6 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was such an Agent under this Agreement.
Section 10. MISCELLANEOUS
10.1 Assignments of and Participations in Commitments, Loans and Letters of
Credit.
A. General. The Lenders in each Lending Unit shall have the
right at any time to (i) sell, assign, transfer or negotiate to any Eligible
Assignee and its Affiliates which, subject to the provisions of subsection
2.1(A)(iv) and subsection 2.1E, has (a) a Canadian Lending Office for borrowings
and payments relating to Canadian Loans and Bankers' Acceptances, if such
Lending Unit has a Canadian Commitment, (b) an Australian Lending Office for
borrowings and payments relating to Australian Loans, if such Lending Unit has
an Australian Commitment, and (c) a U.S. Lending Office for borrowings and
payments relating to U.S. Loans, and may have a Canadian Commitment or
Australian Commitment even if such Lending Unit does not have such Commitments
or (ii) sell participations to any Person in, all or any part of any Loan or
Loans made by it or its Overall Commitments or its Letters of Credit or
participations therein, or any other interest herein or in any other Obligations
owed to it; provided that no such assignment or participation shall, without the
consent of Company and Borrowers, require Company or any Borrower to file a
registration statement with the Securities and Exchange Commission or apply to
qualify such assignment or participation under the securities laws of any
jurisdiction; and provided, further that for greater certainty, Bankers'
Acceptances purchased by a Canadian Lender may be held or sold by it in its
absolute discretion as provided in subsection 2.8E. Except as otherwise provided
in this subsection 10.1, no Lender shall, as between any Borrower and such
Lender, be relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or any granting of participations in,
all or any part of the Loans, the Overall Commitments, Letters of Credit or
participations therein or Bankers' Acceptances or the other Obligations owed to
such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Loan, Commitment or
other Obligation to be assigned pursuant to subsection 10.1A
may (a) be assigned in any amount (of a constant and not a
varying percentage) to another Lender, or to an Affiliate of
the assigning Lender or another Lender, with the giving of
notice to Company, Borrowers and Administrative Agent or (b)
be assigned in an amount (of a constant and not a varying
percentage) of not less than $5,000,000 (or such lesser amount
as shall constitute the aggregate amount of all Loans, Overall
Commitments, Letters of Credit or participations therein, and
other Obligations of the assigning Lender) to any other
Eligible Assignee with the giving of notice to Company,
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Borrowers and Agents and in the case of assignment to any
other Eligible Assignee, with the consent of Company,
Borrowers and Administrative Agent for an assignment made by a
Lender other than Administrative Agent, and with the consent
of Company and Borrowers for an assignment made by
Administrative Agent, which consent of Company, Borrowers and
Administrative Agent shall not be unreasonably withheld, and
which consent of Company and Borrowers shall not be required
upon the occurrence and during the continuance of an Event of
Default; provided that all such assignments by any Lender
shall be permitted only if the Canadian Lender, if any,
Australian Lender, if any, and U.S. Lender of each Lending
Unit simultaneously assign the same proportionate shares of
their outstanding Loans, participations in Letters of Credit,
and Overall Commitments to assignees that will respectively
constitute the Canadian Lender, Australian Lender and the U.S.
Lender of a Lending Unit for the purposes of this Agreement.
To the extent of any such assignment in accordance with either
clause (a) or (b) above, the assigning Lender shall be
relieved of its obligations with respect to its Loans, Overall
Commitments, Letters of Credit or participations therein or
other Obligations or the portion thereof so assigned provided
that the assigning Lender shall continue to have rights of
indemnity under subsections 10.2, 10.3 and 10.7. The parties
to each such assignment shall execute and deliver to
Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and such
certificates, documents or other evidence, if any, with
respect to United States federal, Canadian and Australian
income tax withholding matters as the assignee under such
Assignment and Acceptance may be required to deliver to
Administrative Agent pursuant to subsection 10.7B(iii). Upon
such execution, delivery and acceptance, from and after the
effective date specified in such Assignment and Acceptance,
(y) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance,
shall have the rights and obligations of a Lender hereunder,
and (z) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto). The Overall Commitments hereunder
shall be modified to reflect the Commitment of such assignee
and any remaining Commitment of such assigning Lender and, if
any such assignment occurs after the issuance of a Note or a
Grid Gold Acknowledgement to the assigning Lender hereunder,
if requested pursuant to subsection 2.1E, new Notes and Grid
Gold Acknowledgements shall, upon surrender of the assigning
Lender's Notes or Grid Gold Acknowledgements, be issued to the
assignee and to the assigning Lender, substantially in the
forms of Exhibit IV-A, Exhibit IV-B, Exhibit IV-C, Exhibit
IV-D or Exhibit V annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Overall Commitments
of the assignee and the assigning Lender.
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(ii) Acceptance by Administrative Agent; Recordation in
Register. Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing
that it is an Eligible Assignee meeting the requirements of
subsection 10.1A, together with the processing and recordation
fee referred to in subsection 10.1B(i) and any certificates,
documents or other evidence with respect to United States
federal, Canadian and Australian income tax withholding
matters that such assignee may be required to deliver to
Administrative Agent pursuant to subsection 10.7B(iii),
Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit
X-A, Exhibit X-B, or Exhibit X-C annexed hereto, as applicable
and if Administrative Agent, Company and Borrowers have
consented to the assignment evidenced thereby (in each case to
the extent such consent is required pursuant to subsection
10.1B(i)), (a) accept such Assignment and Acceptance by
executing a counterpart thereof as provided therein (which
acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give
prompt notice thereof to Company, Borrowers and the Applicable
Administrative Agent. Administrative Agent shall maintain a
copy of each Assignment and Acceptance delivered to and
accepted by it as provided in this subsection 10.1B(ii).
C. Participations. The holder of any participation, other than
an Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of any
portion of the principal amount of or interest on any Loan or any commitment
fees allocated to such participation, (ii) the release of Company or U.S.
Borrower from its obligations under Section 8 or (iii) a reduction of the
principal amount of or the rate of interest payable on any Loan, a reduction in
the Face Amount, amount of discount or fee on any Bankers' Acceptance, or
payments due in repayment of draws under Letters of Credit allocated to such
participation, and all amounts payable by any Borrower or Company hereunder
shall be determined as if such Lender had not sold such participation. Company
and each Borrower hereby acknowledges and agrees that, only for purposes of
subsections 2.6D, 10.5 and 10.7, any participation will give rise to a direct
obligation of Borrowers and Company to the participant and the participant shall
be considered to be a "Lender"; provided that no participant shall be entitled
to receive any greater amount pursuant to subsection 2.6D or 10.7 than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation effected by such transferor Lender to such participant had
no such participation occurred. Company, Borrowers, Agents and the other Lenders
shall continue to deal solely with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
D. Information. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.21.
E. Federal Reserve Bank. Nothing in this subsection 10.1 shall
prevent or prohibit any Lender from pledging its rights (but not its obligations
to make Loans and to issue or
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participate in Letters of Credit or to create and purchase Bankers' Acceptances)
under this Agreement and/or its Loans, participations in Letters of Credit,
Bankers' Acceptances and/or Notes hereunder to a Federal Reserve Bank.
F. The Register.
(i) Administrative Agent and the Applicable Administrative
Agent shall maintain, at its Lending Office, a register for
the recordation of the names and addresses of Lenders and the
Commitment and Loans of each Lender from time to time (the
"Register"). Borrowers, Agents and Lenders may treat each
Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register
shall be available for inspection by Company, any Borrower,
any Agent or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(ii) Administrative Agent and the Applicable Administrative
Agent shall record in the Register the Commitment and the
Loans from time to time of each Lender and each repayment or
prepayment in respect of the principal amount of the Loans of
each Lender. Any such recordation shall be conclusive and
binding on Company and each Lender, absent manifest error;
provided that failure to make any such recordation, or any
error in such recordation, shall not affect any Borrower's
Obligations in respect of the applicable Loans.
(iii) Each Lender may record on its internal records
(including, without limitation, any promissory note described
in subsection 2.1E) the amount of each Loan made by it and
each payment in respect thereof; provided that in the event of
any inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern, absent
manifest error.
At the request of Company, Administrative Agent will provide
to Company not more than once a month, a copy of the Register.
G. Stamp Taxes and Other Duties, Expenses.
Notwithstanding any other provisions of this Agreement,
Company and Borrowers shall have no liability to pay stamp taxes, duties and
other costs, taxes, fees, charges or other expenses which may be assessed or
incurred at the time of, and as a result of, any assignment or participation
made pursuant to this subsection 10.1.
10.2 Expenses.
Whether or not the transactions contemplated hereby shall be
consummated, Company and Borrowers jointly and severally agree to pay promptly
(i) all the actual and reasonable costs and expenses of preparation of the Loan
Documents; (ii) all the costs of furnishing all opinions by counsel for Company
or any Borrower (including, without limitation, any opinions reasonably
requested by Lenders as to any legal matters arising hereunder) and of
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Company's or any Borrower's performance of and compliance with all agreements
and conditions on its part to be performed or complied with under this Agreement
and the other Loan Documents including, without limitation, with respect to
confirming compliance with environmental and insurance requirements; (iii) the
reasonable fees, expenses and disbursements of counsel to any Agent or Arranger
in connection with the negotiation, preparation, execution and administration of
the Loan Documents, the Letters of Credit, the Bankers' Acceptances and the
Loans and any consents, amendments, waivers or other modifications hereto or
thereto and any other documents or matters requested by Company or any Borrower;
(iv) all other actual and reasonable costs and expenses incurred by any Agent or
Arranger in connection with the negotiation, preparation and execution of the
Loan Documents and the transactions contemplated hereby and thereby; and (v)
after the occurrence and during the continuation of an Event of Default, all
costs and expenses, including reasonable attorneys' fees, excluding in-house
counsel, and costs of settlement, incurred by any Agent, Arranger and Lenders in
enforcing any Obligations of or in collecting any payments due from Company or
any Borrower hereunder or under the other Loan Documents by reason of such Event
of Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 Indemnity.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
Company and Borrowers jointly and severally agree to defend, indemnify, pay and
hold harmless each Agent, Arranger and Lenders, and the officers, directors,
employees, counsel, agents and affiliates of such Agent, Arranger and Lenders
(collectively called the "Indemnitees") from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened by any Person, whether or not any
such Indemnitee shall be designated as a party or a potential party thereto),
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including, without limitation, securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby (including, without limitation, Lenders'
agreement to make the Loans or create and purchase Bankers' Acceptances
hereunder or the use or intended use of the proceeds of any of the Loans or
Bankers' Acceptances or the issuance of Letters of Credit hereunder and Lenders'
agreement to purchase participations therein as provided for herein, or the use
or intended use of the Letters of Credit) or the statements contained in any
commitment letter delivered by any Lender to Company or any Borrower with
respect thereto (collectively called the "Indemnified Liabilities"); provided
that neither Company nor any Borrower shall have any obligation to any
Indemnitee hereunder with respect to any Indemnified Liabilities to the extent
such Indemnified Liabilities arise from the gross negligence or willful
misconduct of that Indemnitee as finally determined by a court of competent
jurisdiction; provided further, that, subject to the hold
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harmless provisions of this subsection 10.3, Company shall be subrogated to all
rights that any such Indemnitee may have in respect of any person or persons
whose acts or failure to act resulted in the indemnified liability and the
Indemnitee shall, upon receipt of payment for all Indemnified Liabilities
payable to such Indemnitee, assign to Company the rights with respect to such
Indemnified Liabilities such Indemnitee may have against any person or persons
whose acts or failure to act resulted in the indemnified liability; and provided
still further that any exercise of rights of subrogation shall be withheld until
payment of all of the related Indemnified Liabilities. To the extent that the
undertaking to defend, indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, Company and each Borrower shall contribute the maximum portion
that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any
of them, subject however to the limitations contained in the last clause of the
preceding sentence.
10.4 Set Off.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Agent and each Lender is hereby
authorized by Company and each Borrower at any time or from time to time,
without notice to Company or such Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to,
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other Indebtedness at any time held or
owing by such Agent or such Lender to or for the credit or the account of
Company or such Borrower, as the case may be, against and on account of the
obligations and liabilities then due and payable of Company or such Borrower, as
the case may be, to such Agent or such Lender under this Agreement, and any
Notes, any Grid Gold Acknowledgements, any Letters of Credit and participations
therein, and any Bankers' Acceptances, including, but not limited to, all claims
of any nature or description arising out of or connected with this Agreement,
the Notes, the Grid Gold Acknowledgements, the Letters of Credit and
participations therein, any Bankers' Acceptances or any other Loan Document,
irrespective of whether or not such Agent or such Lender shall have made any
demand hereunder.
10.5 Ratable Sharing.
Subject to the provisions of subsection 2.1E, Lenders hereby
agree among themselves that if any of them shall, whether by voluntary payment,
by realization upon security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any
right under the Loan Documents or under Letters of Credit or Bankers'
Acceptances or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of Obligations of any Borrower then due and
owing to that Lender (collectively, the "Aggregate Amounts Due" to such Lender)
which is greater than the proportion received by any other Lender in respect of
the Aggregate Amounts Due of such Borrower to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Administrative
Agent and each
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other Lender of the receipt of such payment and (ii) apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due of such
Borrower to the other Lenders so that all such recoveries of Aggregate Amounts
Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due of
such Borrower to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company, any Borrower or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Company and each Borrower
expressly consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's lien,
set-off or counterclaim with respect to any and all monies owing by Company or
such Borrower to that holder with respect thereto as fully as if that holder
were owed the amount of the participation held by that holder.
10.6 Amendments and Waivers.
No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes or consent to any departure by
Company or any Borrower therefrom, shall in any event be effective without the
written concurrence of Requisite Lenders; provided that any amendment,
modification, termination or waiver of or with respect to: increases in the
amount of the Overall Commitments or any Lending Unit's Commitments or decreases
in the principal amount of the Loans or, interest accrued thereon; each Canadian
Lender's Pro Rata Share, Australian Lender's Pro Rata Share, U.S. Lender's Pro
Rata Share, or each Lender's Pro Rata Share; the definitions of "Requisite
Lenders," "Bankers' Acceptances Purchase Price" (to the extent such change in
definition results in an increase of such purchase price) and "Commitment
Termination Date"; any provision expressly requiring the approval or concurrence
of all Lenders; the scheduled final maturity dates of the Loans or the maturity
dates of any Bankers' Acceptances; the dates on which interest or any fees are
payable; decreases in the interest rates borne by the Loans; decreases in the
amount or type of any fee on any Bankers' Acceptances; decreases of any amounts
payable in respect of the Letters of Credit pursuant to subsections 2.7E(i) and
(ii) or in the amount of any fees payable to all Lenders hereunder; the maximum
duration of Interest Periods, the provisions of Section 8 or any release of
Company or U.S. Borrower from its guaranty obligations thereunder; and the
provisions contained in subsection 7.1 and this subsection 10.6 shall be
effective only if evidenced by a writing signed by or on behalf of all Lenders.
In addition, (i) any amendment, modification, termination or waiver of any of
the provisions contained in Section 3 shall be effective only if evidenced by a
writing signed by or on behalf of Administrative Agent and Requisite Lenders,
(ii) no amendment, modification, termination or waiver of any provision of any
Note, Bankers' Acceptance or Grid Gold Acknowledgement shall be effective
without the written concurrence of the holder of that Note, Bankers' Acceptance
or Grid Gold Acknowledgement, and (iii) no amendment, modification, termination
or waiver of any provision of Section 9 or of any other provision of this
Agreement expressly requiring the approval or concurrence of any Agent shall be
effective without the written concurrence of such Agent. Administrative Agent
may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on
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behalf of that Lender. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was given. No notice
to or demand on Company or any Borrower in any case shall entitle Company or any
Borrower to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 10.6 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed by Company or
any Borrower, on Company and such Borrower, as the case may be.
10.7 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs and Taxes. If any Lender
shall determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority in each case that is
adopted after the Effective Date or compliance by such Lender with any
guideline, request or directive issued or made after the Effective Date by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law):
(i) subjects such Lender (or its Lending Office) to any
additional Tax (other than any Excluded Taxes) with respect to
this Agreement or any of the Loans, Letters of Credit (or
participations therein), any risk participations purchased or
sold pursuant to subsection 2.1E or Bankers' Acceptances or
any of its obligations hereunder, or changes the basis of
taxation of payments to such Lender (or its Lending Office) of
any Obligation (except for changes in Excluded Taxes);
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the
account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such
Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the
definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition on or affecting such Lender
(or its applicable Lending Office) or its obligations
hereunder or the London interbank market, precious metals
market, bankers' acceptances market or bills of exchange
market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans, Letters of Credit (or
participations therein) or Bankers' Acceptances hereunder or to reduce any
amount received or receivable by such Lender (or its Lending Office) with
respect thereto; then, in any such case, Borrowers and Company shall be jointly
and severally obligated to promptly pay to such Lender, upon written demand and
receipt
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of the written notice referred to below, such additional amount or
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to compensate such Lender on an after-tax basis
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company and Borrowers a written notice,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Lender under this subsection 10.7A, which statement shall
be conclusive and binding upon all parties hereto absent manifest error.
Notwithstanding anything contained in this subsection 10.7A or
subsection 10.7B, if any Lender is unable to make any Loans in the applicable
currency or in Gold and such inability is not due to circumstances described in
subsection 2.6A or 2.6B or any other similar circumstances, then any withholding
taxes or any other costs directly resulting from such inability shall be for the
account of such Lender.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by
Borrowers and Company under this Agreement and the other Loan
Documents to such Lender shall be paid free and clear of and
without any deduction or withholding on account of any Covered
Tax imposed, levied, collected, withheld or assessed by or
within the United States of America, Australia or Canada or
any political subdivision in or of the United States of
America, Australia or Canada or any other jurisdiction from
which a payment is made by or on behalf of Company or any
Borrower or by any federation or organization of which the
United States of America, Australia or Canada or any such
jurisdiction is a member at the time of payment.
(ii) Withholding in respect of Payments. If Company, any
Borrower or any other Person is required by law to make any
deduction or withholding on account of any Covered Tax from
any sum paid or payable by Company or such Borrower to any
Agent, Arranger or any Lender under any of the Loan Documents:
(a) Company and Borrowers shall notify Administrative
Agent of any such requirement or any change in any such
requirement as soon as Company or any Borrower becomes aware of
it;
(b) Company or such Borrower, as the case may be,
shall pay any such Covered Tax before the date on which
penalties attach thereto, such payment to be made (if the
liability to pay is imposed on Company or such Borrower) for
its own account or (if that liability is imposed on such Agent,
Arranger or such Lender, as the case may be) on behalf of and
in the name of such Agent, Arranger or such Lender;
(c) the sum payable by Company or such Borrower in
respect of which the relevant deduction, withholding or payment
is required shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or
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payment, such Agent, Arranger or such Lender, as the case may
be, receives on the due date and retains (free from any
liability in respect of any such deduction, withholding or
payment) a net sum equal to what it would have received and so
retained had no such deduction, withholding or payment in
respect of Covered Taxes been required or made; and
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax which
it is required by clause (b) above to pay, Company and
Borrowers shall deliver to Administrative Agent evidence
reasonably satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof
to the relevant taxing or other authority;
(iii) U.S. Tax Certificates. Each Lender that is organized under the
laws of any jurisdiction other than the United States or any state or
other political subdivision thereof shall deliver to Administrative
Agent for transmission to U.S. Borrower, on or prior to the Effective
Date (in the case of each Lender listed on the signature pages hereof)
or on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender (in the case of each other Lender), and at such other
times as may be necessary in the determination of Company or any
Borrower or Administrative Agent (each in the reasonable exercise of
its discretion), such certificates, documents or other evidence,
properly and accurately completed and duly executed by such Lender
(including, without limitation, Internal Revenue Service Form 1001 or
Form 4224 or any other certificate or statement of exemption required
by Treasury Regulations Section 1.1441-4(a) or Section 1.1441-6(c) or
any successor thereto) to establish that such Lender is not subject to
deduction or withholding of United States federal income tax under
Section 1441 or 1442 of the Internal Revenue Code or otherwise (or
under any comparable provisions of any successor statute) and each
Lender shall deliver to Administrative Agent for transmission to the
relevant Borrower or Borrowers any such additional certificates,
documents or other evidence as may at such time be required by
applicable United States, Australian or Canadian federal or state or
provincial law if required to establish that such Lender is not subject
to deduction or withholding under United States, Australian or Canadian
tax laws with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan
Documents. Neither Company nor any Borrower shall be required to pay
any additional amount to any such Lender under clause (c) of subsection
10.7B(ii) if such Lender shall have failed to satisfy the requirements
of the immediately preceding sentence; provided that if such Lender
shall have satisfied such requirements on or prior to the Effective
Date (in the case of each Lender listed on the signature pages hereof)
or on the date of the Assignment and Acceptance pursuant to which it
became a Lender (in the case of each other Lender), nothing in this
subsection 10.7B(iii) shall relieve Company or any Borrower of any
obligation to pay any additional amounts pursuant to clause (c) of
subsection 10.7B(ii) in the event that, as a result of any change in
applicable law after the Effective Date or the date of the applicable
Assignment and Acceptance, as the case may be, such Lender is no longer
properly entitled to deliver certificates, documents or other evidence
at a subsequent date establishing the fact that such
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Lender is not subject to withholding as described in the immediately
preceding sentence.
C. Capital Adequacy Adjustment. If any Lender shall have
determined in good faith that the adoption, effectiveness, phase-in or
applicability (excluding any adoption, effectiveness, phase-in or applicability
published as of the Effective Date and currently scheduled to take effect) after
the Effective Date of any law, rule or regulation (or any provision thereof)
regarding capital adequacy, or any change therein or in the interpretation or
administration thereof after the Effective Date by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its applicable lending
office) with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of, or with reference to, such Lender's Loans or
Commitment or Letters of Credit or participations therein or Bankers'
Acceptances or other obligations hereunder to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within ten Business
Days after written demand by such Lender (with a copy of such demand to
Administrative Agent), Company and Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such controlling
corporation for such reduction.
10.8 Lenders' Obligation to Mitigate; Replacement of Lender.
Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering the Loans under this
Agreement becomes aware of the occurrence of an event or the existence of a
condition that would cause such Lender to become an Affected Lender as provided
in subsection 2.6C or that would entitle such Lender to receive payments under
subsection 10.7A or 10.7C, it will, to the extent not inconsistent with such
Lender's internal policies, use reasonable efforts (i) to make, fund or maintain
the Commitment of such Lender or the affected Loans or Bankers' Acceptances of
such Lender through another lending office of such Lender, or (ii) to take such
other measures as such Lender may deem reasonable, if as a result thereof the
circumstances which would cause such Lender to be an Affected Lender as provided
in subsection 2.6C would cease to exist or the additional amounts which would
otherwise be required to be paid to such Lender pursuant to subsection 10.7A or
10.7C would be materially reduced and if, as determined by such Lender in its
sole discretion, the making, funding or maintaining of such Commitment or Loans
or Bankers' Acceptances through such other lending office or in accordance with
such other measures, as the case may be, would not otherwise adversely affect
such Commitment or Loans or Bankers' Acceptances or the interests of such
Lender; provided that such Lender will not be obligated to utilize such other
lending office pursuant to this subsection 10.8 unless Borrowers agree to pay
all reasonable expenses incurred by such Lender in utilizing such other lending
office. A certificate as to the amount of any such expenses payable by Borrowers
pursuant to this subsection 10.8 (setting forth in reasonable detail
123
the basis for requesting such amount) submitted by such Lender to Borrowers
shall be conclusive absent manifest or demonstrable error.
If any Lender becomes entitled to receive payments under
subsection 10.7A or 10.7C, Borrowers have the right at any time to treat such
Lender as an Affected Lender and to substitute one or more Eligible Assignees
for such Lender as provided in subsection 2.6C.
10.9 Independence of Covenants.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
10.10 Notices.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telecopied, telexed or sent by United States,
Australian or Canadian mail or courier service and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of telecopy
or telex if delivered or received on a Business Day or on the first Business Day
after delivery or receipt if delivered or received on a day that is not a
Business Day. For the purposes hereof, the address of each party hereto shall be
as set forth under such party's name on the signature pages hereof or (i) as to
Company, any Borrower, any Agent and Arranger, such other address as shall be
designated by such Person in a written notice delivered to the other parties
hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
10.11 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein,
shall survive the execution and delivery of this Agreement, the making of the
Loans hereunder, the issuance of the Letters of Credit and the creation and
purchase of Bankers' Acceptances.
B. Notwithstanding anything in this Agreement or implied by
law to the contrary, the agreements of Company set forth in subsections 2.6D,
10.2, 10.3, 10.4, 10.7, 10.13 and 10.24 and the agreements of Lenders set forth
in subsections 9.2C, 9.4, 10.4, 10.5, 10.7B(iii), and 10.24 shall survive, but
this Agreement shall otherwise terminate, upon the termination of the Overall
Commitments, payment of all Obligations (other than contingent amounts pursuant
to subsections 2.1E, 2.6D, 10.2, 10.3, 10.7 and 10.24 not at such time claimed
or due and payable), the cancellation or expiration of the Letters of Credit,
the cancellation or maturity of all Bankers' Acceptances and the reimbursement
of any amounts drawn thereunder; provided that this Agreement shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be restored
by any
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Agent or any Lender upon the bankruptcy or reorganization of Company or any
Borrower or otherwise.
10.12 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of any Lender in the exercise
of any power, right or privilege hereunder or under a Loan, Note, Letter of
Credit or Bankers' Acceptances shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other power, right or privilege. All
rights and remedies existing under this Agreement, the Notes, the Letters of
Credit, the Bankers' Acceptances and the other Loan Documents are cumulative to,
and not exclusive of, any rights or remedies otherwise available.
10.13 Marshalling; Payments Set Aside.
Neither any Agent, Arranger nor any Lender shall be under any
obligation to marshal any assets in favor of Company, any Borrower or any other
party or against or in payment of any or all of the Obligations. To the extent
that Company or any Borrower makes a payment or payments to any Agent, Arranger
or Lenders, or any Agent or Lenders enforce any security interests or exercise
their rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, any other state
or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor or related thereto, shall be revived
and continued in full force and effect as if such payment or payments had not
been made or such enforcement or setoff had not occurred.
10.14 Severability.
In case any provision in or obligation under this Agreement,
the Notes, the Bankers' Acceptances or the Grid Gold Acknowledgments shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.15 Obligations Several; Independent Nature of Lenders' Rights.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitment of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be, subject to the
limitations on the right to terminate Commitments and accelerate outstandings
contained in Section 7, entitled to protect and enforce
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its rights arising out of this Agreement and it shall not be necessary for any
other Lender to be joined as an additional party in any proceeding for such
purpose.
10.16 Headings.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.17 Applicable Law.
THIS AGREEMENT AND THE NOTES AND THE LEGAL RELATIONS AMONG THE
PARTIES SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OR
RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE
DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICES FOR DOCUMENTARY CREDITS (1993)
REVISION, INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM
CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF
THE STATE OF NEW YORK. EACH BANKERS' ACCEPTANCE SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF CANADA.
10.18 Successors and Assigns.
This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Agents, Arranger and Lenders.
The terms and provisions of this Agreement shall inure to the benefit of any
assignee or transferee of any of the Obligations, and in the event of any such
transfer or assignment the rights and privileges herein conferred upon Agents,
Arranger and Lenders shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. Neither
Company's nor any Borrower's rights or obligations hereunder nor any interest
therein may be assigned or delegated by Company or any Borrower without the
prior written consent of all Lenders. Lenders' rights of assignment are subject
to subsection 10.1.
10.19 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OBLIGATION
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH PARTY
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
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UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, SUCH OTHER LOAN
DOCUMENT OR SUCH OBLIGATION. Company and each Borrower designates and appoints
CT Corporation System, and such other Persons as may hereafter be selected by
Company and each Borrower irrevocably agreeing in writing to so serve, as its
agent to receive on its behalf service of all process in any such proceedings in
any such court, such service being hereby acknowledged by Company and each
Borrower to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to Company at its
address as provided in subsection 10.10; provided that, unless otherwise
provided by applicable law, any failure to mail such copy shall not affect the
validity of service of such process. If any agent appointed by Company or any
Borrower refuses to accept service, Company and each Borrower hereby agree that
service of process sufficient for personal jurisdiction in any action against
Company or any Borrower may be made by registered or certified mail, return
receipt requested, to Company at its address as provided in subsection 10.10,
and Company and each Borrower hereby acknowledge that such service shall be
effective and binding in every respect if timely received. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of any party to bring proceedings against any party in the
courts of any other jurisdiction.
10.20 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR
THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including, without limitation, contract claims, tort claims, breach of duty
claims and all other common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to enter into a business
relationship, that each has already relied on this waiver in entering into this
Agreement, and that each will continue to rely on this waiver in their related
future dealings. Each party hereto further warrants and represents that it has
reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
OBLIGATIONS. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
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10.21 Confidentiality.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential by Company or any Borrower in accordance with such Lender's
customary procedures for handling its own confidential information of this
nature and in accordance with safe and sound banking practices, it being
understood and agreed by Company and Borrowers that Lenders may disclose such
information (i) to their accountants and legal counsel in connection with their
ongoing review of the credit extended under this Agreement and (ii) to any bona
fide or prospective assignee, transferee or participant in connection with the
contemplated assignment or transfer by such Lender of any Loans, Bankers'
Acceptances, participations in Letters of Credit or any participation therein or
as required (provided that in each case of disclosure under (i) and (ii), the
disclosing party shall advise such persons of the non-public nature of the
information and secure from such persons in advance of disclosure that such
persons will treat the information as confidential in accordance with its
customary procedures for handling confidential information, subject to the
disclosure provisions herein), (iii) to any governmental agency or
representative thereof upon its reasonable request, or (iv) pursuant to legal
process (provided that in the case of disclosure under (iii) (other than
regulatory reviews in the ordinary course of business) and (iv), the disclosing
party shall advise Company (unless such disclosure is prohibited by such
governmental agency or legal process) of such intended disclosure as soon as
possible in advance if feasible and otherwise as soon as possible thereafter and
shall cooperate with Company, at Company's expense, in any reasonable effort by
Company to prevent disclosure of such information); provided that in no event
shall any Lender be obligated or required to return any materials furnished by
Company or any of its Subsidiaries.
10.22 Entire Agreement.
This Agreement, taken together with all of the other Loan
Documents and all certificates and other documents delivered by Company to
Administrative Agent and Lenders pursuant to the Loan Documents, and any letters
among Company, Borrowers, any Agent and/or Arranger relating to fees, embodies
the entire agreement and supersedes all prior agreements, written and oral,
relating to the subject matter hereof.
10.23 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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10.24 Judgment Currency.
If for the purposes of obtaining a judgment in any court it is
necessary to convert a sum due hereunder or under any other Loan Document in any
currency (the "Original Currency") into another currency (the "Other Currency"),
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be the rate of exchange used in calculating
Dollar Equivalents on the Business Day preceding that on which final judgment is
given. The obligation of Company and each Borrower in respect of any sum due in
the Original Currency from it to any Agent or any Lender hereunder or under any
other Loan Document shall, notwithstanding any judgment in any Other Currency,
be discharged only to the extent that on the Business Day following receipt by
such Agent or such Lender of any sum adjudged to be so due in such Other
Currency such Agent or such Lender may in accordance with normal banking
procedures purchase the Original Currency with such Other Currency; if the
amount of the Original Currency so purchased is less than the sum originally due
to such Lender in the Original Currency, Company and Borrowers agree, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Agent or such Lender against such loss, and if the amount of the Original
Currency so purchased exceeds the sum originally due to any Lender in the
Original Currency, such Agent or such Lender agrees to remit to Company or the
applicable Borrower, as the case may be, such excess.
10.25 Change in Control.
A. If individuals who on the Effective Date were members of
the board of directors of Company (together with any new directors whose
election to such board of directors or whose nomination for election by the
shareholders of Company was approved by a vote of a majority of the directors
then still in office who were either directors on the Effective Date or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of such board of directors then in office; or if
a "Change of Control" as defined in the indenture pursuant to which the
Subordinated Debentures or pursuant to which the New Subordinated Indebtedness
will be issued shall have occurred; or if any Person or any two or more Persons
acting in concert shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Exchange Act),
directly or indirectly, of Securities of Company (or other Securities
convertible into such Securities) representing 30% or more of the combined
voting power of all Securities of Company entitled to vote in the election of
directors, there shall be deemed to have occurred a "Company Change of Control."
B. If a Change of Control shall occur, automatically and
without any notice to Company and Borrowers, the Overall Commitments, and all
Commitments and obligations of Lenders hereunder shall terminate, and two
Business Days thereafter, all Obligations under this Agreement shall become
payable in full, including any amounts that may be due pursuant to subsection
2.6D. Failure to pay all Obligations on the date due and failure to secure the
cancellation of all Letters of Credit and Bankers' Acceptances then outstanding
shall constitute an Event of Default
129
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
Company:
HOMESTAKE MINING COMPANY
By: ____________________________
Title: ____________________________
Notice Address:
Homestake Mining Company
650 California Street
San Francisco, California
94108-2788
Attn: Treasurer
Fax: (415) 397-5038
U.S. Borrower:
HOMESTAKE MINING COMPANY OF
CALIFORNIA
By: ___________________________
Title: ___________________________
Notice Address:
Homestake Mining Company of
California
650 California Street
San Francisco, California
94108-2788
Attn: Treasurer
Fax: (415) 397-5038
Canadian Borrower:
HOMESTAKE CANADA INC.
By: ____________________________
Titel: ____________________________
Notice Address:
Homestake Canada Inc.
c/o Homestake Mining Company
650 California Street
San Francisco, California
94108-2788
Attn: Treasurer
Fax: (415) 397-5038
Australian Borrowers:
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By: ____________________________
Title: ____________________________
Notice Address:
Homestake Gold of Australia
Limited
c/o Homestake Mining Company
650 California Street
San Francisco, California
94108-2788
Attn: Treasurer
Fax: (415) 397-5038
PLUTONIC RESOURCES LIMITED
By: ____________________________
Title: ____________________________
Notice Address:
Plutonic Resources Limited
c/o Homestake Mining Company
650 California Street
San Francisco, California
94108-2788
Attn: Treasurer
Fax: (415) 397-5038
LENDERS:
THE CHASE MANHATTAN BANK,
individually, as a U.S. Lender, as
an Issuing Lender,
and as Administrative Agent
By: ____________________________
Title: ____________________________
Notice Address:
The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: James Ramage
Fax: (212) 270-4724
With copies to
Loan Services Group
1 Chase Manhattan Plaza
New York, NY 10081
THE CHASE MANHATTAN BANK OF CANADA,
individually, as a Canadian Lender,
as an Issuing Lender, and as Canadian
Administrative Agent
By: ____________________________
Title: ____________________________
Notice Address:
The Chase Manhattan Bank of
Canada
100 King Street West, Suite
6900
Toronto, Ontario
M5X 1A4
Canada
CHASE SECURITIES AUSTRALIA LIMITED,
as Australian Administrative Agent
By: ____________________________
Title: ____________________________
Notice Address:
Level 35, AAP Centre
259 George Street
Sydney 2000, Australia
THE CHASE MANHATTAN BANK, as an
Australian Lender
By: ____________________________
Title: ____________________________
Notice Address:
Level 35, AAP Centre
259 George Street
Sydney 2000, Australia
ARRANGER:
CHASE SECURITIES INC., as Arranger
By: ____________________________
Title: ____________________________
CREDIT SUISSE FIRST BOSTON, as a
U.S. Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Credit Suisse First Boston
11 Madison Avenue, 20th Floor
New York, NY 10010-3692
Attention: J. Scott Karro
Fax: (212) 325-8314
CREDIT SUISSE FIRST BOSTON, as an
Australian Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Credit Suisse First Boston
101 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Michael Tierney
Tel: 3 9653 3434
Fax: 3 9653 3444
CREDIT SUISSE FIRST BOSTON CANADA,
as a Canadian Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Credit Suisse First Boston
Canada
525 University Avenue
Toronto, Ontario M5G 2K6
Attention: Alain Daoust
Tel: (416) 351-3663
Fax: (416) 351-3671
UBS AG, STAMFORD BRANCH, as a U.S.
Lender
By: ___________________________
Title: ___________________________
By: ___________________________
Title: ___________________________
Notice Address:
UBS AG, Stamford Branch
677 Washington Blvd., 8N
Stanford, CT 06901
Attention: Dan Nolan
Fax: (203) 719-4176
UBS AG, STAMFORD BRANCH, as a
Canadian Lender
By: ___________________________
Title: ___________________________
By: ___________________________
Title: ___________________________
Notice Address:
UBS AG, Stamford Branch
677 Washington Blvd., 8N
Stanford, CT 06901
Attention: Dan Nolan
Fax: (203) 719-4176
UBS AG, STAMFORD BRANCH, as an
Australian Lender
By: ___________________________
Title: ___________________________
By: ___________________________
Title: ___________________________
Notice Address:
UBS AG, Stamford Branch
677 Washington Blvd., 8N
Stanford, CT 06901
Attention: Dan Nolan
Fax: (203) 719-4176
DEUTSCHE BANK AG, New York Branch
and/or Cayman Islands Branch,as a
U.S. Lender
By: ___________________________
Title: ___________________________
Notice Address:
Deutsche Bank N.A.
31 West 52nd Street
New York, NY 10019
Attention: John Calvert
Fax: (212) 469-3632
DEUTSCHE BANK AG, ARBN 064 165 162,
as an Australian Lender
By: ___________________________
Title: ___________________________
Notice Address:
Deutsche Bank Sydney
Level 18, 225 George Street
Sydney Australia
Attention: Peter Field
Fax: 612-9252-2364
DEUTSCHE BANK CANADA, as a Canadian
Lender
By: ____________________________
Title: ____________________________
Notice Address:
Deutsche Bank Canada
222 Bay Street, Suite 1200
Toronto, Ontario M5K 1H6
Canada
Attention: Rod O'Hara
Fax: (416) 682-8444
REPUBLIC NATIONAL BANK OF NEW YORK,
as a U.S. Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Republic National Bank of New
York
452 Fifth Avenue
New York, NY 10018
Attention: Jeffrey Roth
Fax: (212) 525-6581
REPUBLIC NATIONAL BANK OF NEW YORK
(CANADA), as a Canadian Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Republic National Bank
150 Bloor Street West Suite
M100
Toronto, Ontario M5S 2Y5
Attention: Anthony Matrundola
Fax: (416) 968-7669
REPUBLIC MASE AUSTRALIA LIMITED, as
an Australian Lender
By: ____________________________
Title: ____________________________
Notice Address:
Republic Mase Australia
Limited
Level 6, AMP Centre
50 Bridge Street
Sydney, NSW 2000, Australia
Attention: Anthony Wallace
Fax: 61-2-235-0950
NM ROTHSCHILD & SONS LIMITED, as a
U.S. Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
NM Rothschild & Sons Limited
New Court
St. Swithin's Lane
London
EC4P 4DU
Attention: Ian Harding
Fax: 0171-280-5139
NM ROTHSCHILD & SONS LIMITED, as a
Canadian Lender
By: ___________________________
Title: ___________________________
By: ___________________________
Title: ___________________________
Notice Address:
NM Rothschild & Sons Limited
New Court
St. Swithin's Lane
London
EC4P 4DU
Attention: Ian Harding
Fax: 0171-280-5139
MELLON BANK, N.A., as a U.S. Lender
By: ___________________________
Title: ___________________________
Notice Address:
Mellon Bank, N.A.
400 S. Hope Street, 5th Floor
Los Angeles, CA 90071-2806
Attention: Lawrence Ivey
Fax: (213) 629-0492
MELLON BANK CANADA, as a Canadian
Lender
By: ___________________________
Title: ___________________________
Notice Address:
Mellon Bank Canada
77 King Street West, Suite
3200
Toronto, Ontario M5K 1K2
Attention: Ed McGrath
Fax: (416) 860-2409
THE BANK OF NOVA SCOTIA, as a U.S.
Lender
By: ___________________________
Title: ___________________________
Notice Address:
The Bank of Nova Scotia
44 King Street West, 16th
Floor
Toronto, Ontario
Canada M5H 1H1
Attention: Michael Eddy
Fax: (416) 866-2010
THE BANK OF NOVA SCOTIA, as a
Canadian Lender
By: ___________________________
Title: ___________________________
Notice Address:
The Bank of Nova Scotia
44 King Street West, 16th
Floor
Toronto, Ontario
Canada M5H 1H1
Attention: Michael Eddy
Fax: (416) 866-2010
BANKERS TRUST COMPANY, as a U.S.
Lender
By: ___________________________
Title: ___________________________
Notice Address:
Bankers Trust Company
130 Liberty Street, 14th
Floor
New York, New York 10006
Attention: Varig Patel
Fax: (212) 250-8693
BT BANK OF CANADA, as a Canadian
Lender
By: ____________________________
Title: ____________________________
Notice Address:
BT Bank of Canada
17/F North Tower
Royal Bank Plaza
200 Bay Street
Toronto, Ontario
Canada M5J 2J2
Attention: Marcellus Leung
Fax: (416) 865-9931
BANKERS TRUST AUSTRALIA LIMITED, as
an Australian Lender
By: ____________________________
Title: ____________________________
Notice Address:
The Chifley Tower
2 Chifley Square
Sydney, N.S.W. 2000 Australia
Attention: Stephen Land
SOCIETE GENERALE, as a U.S. Lender
By: ____________________________
Title: ____________________________
Notice Address:
Societe Generale
2029 Century Park East,
Suite 2900
Los Angeles, CA 90067
Attention: Blaine Shaun
Fax: (310) 551-1537
SOCIETE GENERALE, as a Canadian
Lender
By: ____________________________
Title: ____________________________
Notice Address:
Societe Generale
2029 Century Park East,
Suite 2900
Los Angeles, CA 90067
Attention: Blaine Shaun
Fax: (310)551-1537
DRESDNER BANK AG Australian Branch,
as an Australian Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Dresdner Bank, A.G.
Level 20, 2 Market Street
Sydney, Australia NSW 2000
Attention: Anthony Hawke
Fax: 61-2-92862068
DRESDNER BANK AG New York and Grand
Cayman Islands Branches, as a U.S.
Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Dresdner Bank AG
75 Wall Street, 25th Floor
New York, NY 10005
Attention: Doug Sherrod
Fax: (212) 429-2192
CIBC, INC., as a U.S. Lender
By: ___________________________
Title: ___________________________
Notice Address:
CIBC, Inc.
425 Lexington , 8th Floor
New York, NY 10017
Attention: Howard Palmer
Fax: (212) 856-3761
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Canadian Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Canadian Imperial Bank of
Commerce
161 Bay Street, 7th Floor
Toronto, Ontario M5J 2S8
Canada
Attention: Rob McCrossan
Fax: (416) 594-8537
SOCIETE GENERALE AUSTRALIA LIMITED,
as an Australian Lender
By: ____________________________
Title: ____________________________
By: ____________________________
Title: ____________________________
Notice Address:
Societe Generale Australia
Limited
350 George Street
Sydney, NSW 2000
Australia
Attention: Charles Loxton
Fax: (612) 9235-3941
AUSTRALIAN AND NEW ZEALAND BANKING
GROUP LIMITED, as a U.S. Lender and
an Australian Lender
By: ____________________________
Title: ____________________________
Notice Address:
Australian and New Zealand
Banking Group Limited
1177 Avenue of the Americas,
6th Floor
New York, New York 10036
Attention: Stephen
Christenson
Fax: (212) 801-9131
ANZ INVESTMENT BANKING, as a U.S.
and Australian Lender
By: ____________________________
Title: ____________________________
Notice Address:
ANZ Investment Bank
1177 Avenue of the Americas,
6th Floor
New York, NY 10036
Attention: Barbara Paxton
CITICORP USA, INC., as a U.S. Lender
By: ____________________________
Title: ____________________________
Notice Address:
Citibank, N.A.
399 Park Avenue
4th Floor, Zone 1
New York, NY 10043
Attention: Raymond Dunning
Fax: 212-832-9857
CITIBANK CANADA, as a Canadian Lender
By: ____________________________
Title: ____________________________
Notice Address:
Citibank Place
123 Front Street West,
Suite 1900
Toronto, Ontario M5J 2M3
Attention: Margaret Gillies
Fax: 416-947-5650
CITIBANK, N.A., as an Australian
Lender
By: ___________________________
Title: ___________________________
Notice Address:
Level 26, 101 Collins Street
Melbourne 3000
Victoria, Australia
Attention: Dale Murphy
Fax: 613-9653-7301
EXHIBIT I
FORM OF NOTICE OF BORROWING
Pursuant to that certain Amended and Restated Credit Agreement
dated as of July , 1998 (said Credit Agreement, as it may be amended, modified
or supplemented from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among Homestake Mining Company, a Delaware corporation
("Company"), Homestake Mining Company of California, a California corporation
("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation ("Canadian
Borrower"), Homestake Gold of Australia Limited, a South Australia corporation
("HGAL"), Plutonic Resources Limited, a New South Wales corporation ("Plutonic";
and collectively with HGAL, "Australian Borrowers"), the financial institutions
listed therein as Lenders ("Lenders"), The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent for Lenders ("Canadian Administrative Agent"),
Chase Securities Australia Limited, as Australian Administrative Agent for
Lenders ("Australian Administrative Agent"), Chase Securities Inc., as Arranger
for Lenders ("Arranger"), Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), and The Chase Manhattan Bank, as Administrative Agent
for Lenders ("Administrative Agent"), this represents the request of [U.S.
Borrower/Canadian Borrower/HGAL/Plutonic] (hereinafter the "Applicable
Borrower") to borrow on _____________, ____ (the "Funding Date") from
[U.S./Canadian/Australian] Lenders, in accordance with their applicable Pro Rata
Shares, Loans in the amount of [$/Cdn.$/A.$____________/____ Ounces of Gold],
which Loans shall be [U.S. Base Rate/U.S. Base Rate (Canada)/Canadian Base
Rate/Eurodollar Rate/Bank Bill Swap Rate/Gold] Loans.
[This further represents U.S. Borrower's request that the
amount of the Gold Loan hereby requested be converted into Dollars based on the
Price of Gold in effect the second Business Day preceding the Funding Date/Gold
constituting such Loan be delivered to U.S. Borrower]. [If the Gold Loan is to
be funded in Gold, U.S. Borrower hereby requests that the interest on such Gold
Loan be payable in [Gold][Dollars] based on the [average of the daily values of
such Loan, in Dollar Equivalents/the Price of Gold on the second Business Day
preceding the Funding Date.]
[The initial Interest Period for such Loans is requested to be
a [one/two/three/six month][30/60/90/180 day] period.]
The proceeds of such Loans are to be deposited in the
Applicable Borrower's [account at Administrative Agent's
[Canadian/U.S./Australian] Lending Office/bullion account maintained with
_________________, at its office located at ___________________].
The undersigned officer/director/Authorized Signor, to the
best of his or her knowledge, and the Applicable Borrower certify that:
I-1
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and
complete in all material respects on and as of the date hereof
to the same extent as though made on and as of the date
hereof, except to the extent that changes in the facts and
conditions on which such representations and warranties were
based are required or permitted under the Credit Agreement;
(ii) No event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby
that would constitute an Event of Default or a Potential Event
of Default;
(iii) The Company and each Borrower have performed in all
material respects all agreements and satisfied all conditions
which the Credit Agreement and other Loan Documents provide
shall be performed or satisfied by it on or before the date
hereof;
(iv) There is no pending or, to the knowledge of Company or
any Borrower, threatened, any action, suit, proceeding,
governmental investigation or arbitration against or affecting
Company or any of its Subsidiaries or any property of Company
or any of its Subsidiaries and there has occurred no
development in any such action, suit, proceeding, governmental
investigation or arbitration that, in either event, would
reasonably be expected to have a Material Adverse Effect,
unless disclosed to and consented to by Requisite Lenders; and
no injunction or other restraining order has been issued and
no hearing to cause an injunction or other restraining order
to be issued is pending or noticed with respect to any action,
suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as
a result of, the transactions contemplated by the Credit
Agreement or the making of Loans, the issuance of Letters of
Credit or the creation and purchase of Bankers' Acceptances
thereunder;
(v) No Company Change of Control has occurred; and
(vi) After giving effect to the proposed Loan, the Borrowers
are in compliance with each of the clauses (a) through (k) set
forth in subsection 2.1A.
DATED: ____________________ [HOMESTAKE MINING COMPANY OF
CALIFORNIA/HOMESTAKE CANADA
INC./HOMESTAKE GOLD OF AUSTRALIA
LIMITED/PLUTONIC RESOURCES LIMITED]
By: __________________________
Title: ________________________
I-2
EXHIBIT II
FORM OF NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Amended and Restated Credit Agreement
dated as of July , 1998 (said Credit Agreement, as it may be amended, modified
or supplemented from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among Homestake Mining Company, a Delaware corporation
("Company"), Homestake Mining Company of California, a California corporation
("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation ("Canadian
Borrower"), Homestake Gold of Australia Limited, a South Australia corporation
("HGAL"), Plutonic Resources Limited, a New South Wales corporation ("Plutonic";
and collectively with HGAL, "Australian Borrowers"), the financial institutions
listed therein as Lenders ("Lenders"), The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent for Lenders ("Canadian Administrative Agent"),
Chase Securities Australia Limited, as Australian Administrative Agent for
Lenders ("Australian Administrative Agent"), Chase Securities Inc., as Arranger
for Lenders ("Arranger"), Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), and The Chase Manhattan Bank, as Administrative Agent
for Lenders ("Administrative Agent"), this represents [U.S. Borrower's/Canadian
Borrower's/HGAL's/Plutonic's] request to [Select A or B: [A: convert $_________
in principal amount of presently outstanding Loans that are [U.S. Base/U.S. Base
(Canada)/Canadian Base/Eurodollar] Rate Loans to [U.S. Base/U.S. Base
(Canada)/Canadian Base/Eurodollar] Rate Loans on ____________, ____. [The
initial Interest Period for such Eurodollar Rate Loans is requested to be a
[one/two/three/six] month period.]] [B: continue as [Eurodollar/Gold/Bank Bill
Swap] Rate Loans [$_________/________Ounces] in principal amount of presently
outstanding Loans with a final Interest Payment Date of ____________, ____. The
Interest Period for such [Eurodollar/Gold/Bank Bill Swap] Rate Loans commencing
on such final Interest Payment Date is requested to be a [one/two/three/six
month] [30/60/90/180 day] period.] U.S. Borrower hereby requests that the
Interest on such Gold Loan be payable in [Gold] [Dollars] based on the [average
of the daily values of such Loan, in Dollar Equivalents/the Price of Gold on the
second Business Day preceding the first day of the Interest Period hereby
requested].]
[For Conversions to Eurodollar Rate Loans or Continuations of
Eurodollar/Gold/Bank Bill Swap Rate Loans (other than continuations of Loans by
Australian Borrower) Only: The undersigned officer, director, or Authorized
Signor to the best of his or her knowledge, and [U.S. Borrower/Canadian
Borrower/HGAL/Plutonic] certify that no Event of Default or Potential Event of
Default has occurred and is continuing under the Credit Agreement.]
II-1
DATED: ____________________ [HOMESTAKE MINING COMPANY OF
CALIFORNIA/HOMESTAKE CANADA INC./
HOMESTAKE GOLD OF AUSTRALIA LIMITED/
PLUTONIC RESOURCES LIMITED]
By: __________________________
Title: ________________________
II-2
EXHIBIT III-A
[FORM OF DRAFT]
BANKERS' ACCEPTANCE Due _______________ 19__
ACCEPTATION BANCAIRE Echeant le
NO. B.A. IL.0000
_____________, Canada
____________________ 19__
On/Le ___________________ 19__ without grace, for value received, pay to the
order of the undersigned drawer the sum of/sans jours de grace et contra valeur,
payez a l'ordre du tireur soussigne la somme de ____________________ dollars
($_____________)
To/A - [Name of Lender]
___________, Canada
HOMESTAKE CANADA INC.
Per:
par:_______________________
Authorized signature
Signature Autorisee
[FORM OF ACCEPTANCE]
ACCEPTED/ACCEPTE
date/le________________________________________________19__
Payable at [INSERT LOCATION]/payable a ________
[Name of Lender]
Per:
par:____________________
Authorized signature
Signature Autorisee
Per:
par:____________________
Authorized Signature
Signature Autorisee
III-A-1
EXHIBIT III-B
[FORM OF DRAWING NOTICE]
------------, -----
The Chase Manhattan Bank, as Administrative Agent
Attention: _____________________________
and
The Chase Manhattan Bank of Canada, as Canadian Administrative Agent
Attention: _____________________________
Ladies and Gentlemen:
Pursuant to that certain Amended and Restated Credit Agreement
dated as of July , 1998 (said Credit Agreement, as it may be amended, modified
or supplemented from time to time, being the "Credit Agreement," the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among Homestake Mining Company, a Delaware corporation
("Company"), Homestake Mining Company of California, a California corporation,
Homestake Canada Inc., an Ontario corporation ("Canadian Borrower"), Homestake
Gold of Australia Limited, a South Australia corporation, Plutonic Resources
Limited, a New South Wales corporation, the financial institutions listed
therein as Lenders, The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent for Lenders, Chase Securities Australia Limited, as
Australian Administrative Agent for Lenders, Chase Securities Inc., as Arranger
for Lenders, Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), The Chase Manhattan Bank, as Administrative Agent for
Lenders, the undersigned Canadian Borrower's notice, given pursuant to
subsection 2.8B of the Credit Agreement, requesting a Drawing under the Credit
Agreement on the date, in the amount and having the term set forth below:
1. The Drawing Date, which is a Business Day, is
___________, _____;
2. The aggregate Face Amount of Drafts to be accepted
is Cdn. $_______________; and
3. The maturity date for such Drafts is ___________, ____,
which represents a term to maturity of approximately
[30/60/90/180] days.
III-B-1
The undersigned officers, to the best of their knowledge, and
the undersigned Canadian Borrower and Company, each hereby certifies that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents (which representations
and warranties in the case of any Canadian Borrower shall be
limited to such Canadian Borrower and its Subsidiaries) are
true, correct and complete in all material respects on and as
of the date hereof to the same extent as though made on and as
of the date hereof, except to the extent that changes in the
facts and conditions on which such representations and
warranties were based are required or permitted under the
Credit Agreement;
(ii) No event has occurred and is continuing or would result
from the consummation of the drawing contemplated hereby that
would constitute an Event of Default or a Potential Event of
Default;
(iii) The Company and each Borrower have performed in all
material respects all agreements and satisfied all conditions
which the Credit Agreement and other Loan Documents provide
shall be performed or satisfied by it on or before the date
hereof;
(iv) There is no pending or, to the knowledge of Company or
any Borrower, threatened, action, suit, proceeding,
governmental investigation or arbitration against or affecting
Company or any of its Subsidiaries or any property of Company
or any of its Subsidiaries and there has occurred no
development in any such action, suit, proceeding, governmental
investigation or arbitration that, in either event, would
reasonably be expected to have a Material Adverse Effect,
unless disclosed to and consented to by Requisite Lenders; and
no injunction or other restraining order to be issued is
pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages to obtain relief as
a result of, the transactions contemplated by the Credit
Agreement or the making of Loans, the issuance of Letters of
Credit or the creation and purchase of Bankers' Acceptances
thereunder;
(v) No Company Change of Control has occurred;
(vi) After giving effect to the proposed Drawing, the Total
Utilization of Commitments does not exceed the Overall
Commitment then in effect and the Canadian Commitment Usage
does not exceed the Canadian Allocation then in effect.
III-B-2
HOMESTAKE CANADA INC.
By ________________________
Name:__________________
Title:_________________
Acknowledged and consented to as of the date hereof.
HOMESTAKE MINING COMPANY
By __________________________
Name:_____________________
Title:____________________
III-B-3
EXHIBIT IV-A
FORM OF NOTE
HOMESTAKE CANADA INC.
PROMISSORY NOTE DUE JULY , 2003
$1 2
3
FOR VALUE RECEIVED, HOMESTAKE CANADA INC., an Ontario
corporation ("Canadian Borrower"), promises to pay to the order of [NAME OF
LENDER] ("Payee"), on or before July , 2003, the lesser of (x) 4 ($[1]) and (y)
the unpaid principal amount of all advances made by Payee to Canadian Borrower
as Loans under the Credit Agreement referred to below.
Canadian Borrower also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in full, at the rates
and at the times which shall be determined in accordance with the provisions of
that certain Amended and Restated Credit Agreement dated as of July , 1998 by
and among Homestake Mining Company, a Delaware corporation, Homestake Mining
Company of California, a California corporation, Homestake Canada Inc., an
Ontario corporation, Homestake Gold of Australia Limited, a South Australia
corporation, Plutonic Resources Limited, a New South Wales corporation, the
financial institutions listed therein as Lenders, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders, Chase Securities Australia
Limited, as Australian Administrative Agent for Lenders, Chase Securities Inc.
as Arranger for Lenders, Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), and The Chase Manhattan Bank, as Administrative Agent
for Lenders (said Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined).
This Note is one of Canadian Borrower's "Notes" which in the
aggregate may evidence up to $430,000,000 principal amount of Loans and is
issued pursuant to and entitled to the benefits of the Credit Agreement, to
which reference is hereby made for a more complete statement of the terms and
conditions under which the Loans evidenced hereby were made and are to be
repaid.
All payments of principal and interest in respect of this Note
shall be made in the same currency (which shall be Dollars or Canadian Dollars)
as the Loans in respect of
IV-A-1
which such payments are being made, in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and shall be delivered to
Canadian Administrative Agent at the Canadian Administrative Agent's Lending
Office at such times as are provided for in the Credit Agreement. Until notified
in writing of the transfer of this Note, Canadian Borrower, Canadian
Administrative Agent, and Administrative Agent shall be entitled to deem Payee,
or such Person who has been so identified by the transferor in writing to
Canadian Borrower, Canadian Administrative Agent, and Administrative Agent as
the holder of this Note, as the owner and holder of this Note. Each of Payee and
any subsequent holder of this Note agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon of all
Loans evidenced by this Note and all principal payments previously made
hereunder and of the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligations of Canadian Borrower
hereunder with respect to payments of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, but not later than July , 2003, and such extension of
time shall be included in the computation of the payment of interest on this
Note.
This Note is subject to mandatory prepayment and to prepayment
at the option of Canadian Borrower as provided in subsection 2.4A of the Credit
Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.18 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Canadian Borrower, which are absolute and unconditional, to pay the principal of
and interest on this Note at the place, at the respective times, and in the
currency herein prescribed.
Canadian Borrower promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in subsection 10.2 of the
Credit Agreement, incurred in the collection and enforcement of this Note.
Canadian Borrower and any
IV-A-2
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Canadian Borrower has caused this Note to
be duly executed and delivered by its officer thereunto duly authorized as of
the date and at the place first written above.
HOMESTAKE CANADA INC.
By: __________________
Title: _______________
IV-A-3
TRANSACTIONS
ON
NOTE
Amount of Loan Amount of
Type of Loan This Date Principal Paid
Date Made This Date This Date
Outstanding
Principal Balance Notation
This Date Made By
IV-A-4
EXHIBIT IV-B
FORM OF NOTE
HOMESTAKE GOLD OF AUSTRALIA LIMITED
PROMISSORY NOTE DUE JULY , 2003
$5 6
7
FOR VALUE RECEIVED, HOMESTAKE GOLD OF AUSTRALIA LIMITED, a
South Australia corporation ("HGAL"), hereby promises to pay to the order of
[NAME OF LENDER] ("Payee"), on or before July , 2003, the lesser of (x) 8 ($[1])
and (y) the unpaid principal amount of all advances made by Payee to HGAL as
Loans under the Credit Agreement referred to below.
HGAL also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Amended and Restated Credit Agreement dated as of July , 1998 by and
among Homestake Mining Company, a Delaware corporation, Homestake Mining Company
of California, a California corporation, Homestake Canada Inc., an Ontario
corporation, Homestake Gold of Australia Limited, a South Australia corporation,
Plutonic Resources Limited, a New South Wales corporation, the financial
institutions listed therein as Lenders, The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent for Lenders, Chase Securities Australia Limited,
as Australian Administrative Agent for Lenders, Chase Securities Inc. as
Arranger for Lenders, Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), and The Chase Manhattan Bank, as Administrative Agent
for Lenders (said Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined).
This Note is one of HGAL's "Notes" which in the aggregate may
evidence up to $430,000,000 principal amount of Loans and is issued pursuant to
and entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note
shall be made in the same currency (which shall be Dollars or Australian
Dollars) as the Loans in respect of
IV-B-1
which such payments are being made, in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and shall be delivered to
Australian Administrative Agent at Australian Administrative Agent's Lending
Office at such times as are provided for in the Credit Agreement. Until notified
in writing of the transfer of this Note, HGAL, Australian Administrative Agent,
and Administrative Agent shall be entitled to deem Payee, or such Person who has
been so identified by the transferor in writing to HGAL, Australian
Administrative Agent, and Administrative Agent as the holder of this Note, as
the owner and holder of this Note. Each of Payee and any subsequent holder of
this Note agrees, by its acceptance hereof, that before disposing of this Note
or any part hereof it will make a notation hereon of all Loans evidenced by this
Note and all principal payments previously made hereunder and of the date to
which interest hereon has been paid; provided, however, that the failure to make
a notation of any payment made on this Note shall not limit or otherwise affect
the obligations of HGAL hereunder with respect to payments of principal of or
interest on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, but not later than July , 2003, and such extension of
time shall be included in the computation of the payment of interest on this
Note.
This Note is subject to mandatory prepayment and to prepayment
at the option of HGAL as provided in subsection 2.4A of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.18 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
HGAL, which are absolute and unconditional, to pay the principal of and interest
on this Note at the place, at the respective times, and in the currency herein
prescribed.
HGAL promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Note. HGAL and any
endorsers of this Note hereby consent to
IV-B-2
renewals and extensions of time at or after the maturity hereof, without notice,
and hereby waive diligence, presentment, protest, demand and notice of every
kind and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, HGAL has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By: __________________________
Title: ________________________
IV-B-3
TRANSACTIONS
ON
NOTE
Amount of Loan Amount of
Type of Loan Made Made This Date Principal Paid
Date This Date This Date
Outstanding
Principal Balance Notation
This Date Made By
IV-B-4
EXHIBIT IV-C
FORM OF NOTE
PLUTONIC RESOURCES LIMITED
PROMISSORY NOTE DUE JULY , 2003
$13 14
15
FOR VALUE RECEIVED, PLUTONIC RESOURCES LIMITED, a New South Wales
corporation ("Plutonic"), hereby promises to pay to the order of [NAME OF
LENDER] ("Payee"), on or before July , 2003, the lesser of (x) 16 ($[1]) and (y)
the unpaid principal amount of all advances made by Payee to Plutonic as Loans
under the Credit Agreement referred to below.
Plutonic also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Amended and Restated Credit Agreement dated as of July , 1998 by and among
Homestake Mining Company, a Delaware corporation, Homestake Mining Company of
California, a California corporation, Homestake Canada Inc., an Ontario
corporation, Homestake Gold of Australia Limited, a South Australia corporation,
Plutonic Resources Limited, a New South Wales corporation, the financial
institutions listed therein as Lenders, The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent for Lenders, Chase Securities Australia Limited,
as Australian Administrative Agent for Lenders, Chase Securities Inc. as
Arranger for Lenders, Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), and The Chase Manhattan Bank, as Administrative Agent
for Lenders (said Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined).
This Note is one of Plutonic's "Notes" which in the aggregate may evidence
up to $430,000,000 principal amount of Loans and is issued pursuant to and
entitled to the benefits of the Credit Agreement, to which reference is hereby
made for a more complete statement of the terms and conditions under which the
Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in the same currency (which shall be Dollars or Australian Dollars) as the
Loans in respect of
which such payments are being made, in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and shall be delivered to
Australian Administrative Agent at Australian Administrative Agent's Lending
Office at such times as are provided for in the Credit Agreement. Until notified
in writing of the transfer of this Note, Plutonic, Australian Administrative
Agent, and Administrative Agent shall be entitled to deem Payee, or such Person
who has been so identified by the transferor in writing to Plutonic, Australian
Administrative Agent, and Administrative Agent as the holder of this Note, as
the owner and holder of this Note. Each of Payee and any subsequent holder of
this Note agrees, by its acceptance hereof, that before disposing of this Note
or any part hereof it will make a notation hereon of all Loans evidenced by this
Note and all principal payments previously made hereunder and of the date to
which interest hereon has been paid; provided, however, that the failure to make
a notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Plutonic hereunder with respect to payments of principal of
or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day which
is not a Business Day, such payment shall be made on the next succeeding
Business Day, but not later than July , 2003, and such extension of time shall
be included in the computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment and to prepayment at the
option of Plutonic as provided in subsection 2.4A of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as provided
in subsections 10.1 and 10.18 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this Note
or the Credit Agreement shall alter or impair the obligations of Plutonic, which
are absolute and unconditional, to pay the principal of and interest on this
Note at the place, at the respective times, and in the currency herein
prescribed.
Plutonic promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in subsection 10.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. Plutonic and any
endorsers of this Note hereby
IV-C-4
consent to renewals and extensions of time at or after the maturity hereof,
without notice, and hereby waive diligence, presentment, protest, demand and
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, Plutonic has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
PLUTONIC RESOURCES LIMITED
By:_____________________
Title:__________________
IV-C-4
TRANSACTIONS
ON
NOTE
Amount of Loan Amount of
Type of Loan Made Made This Date Principal Paid
Date This Date This Date
Outstanding
Principal Balance Notation
This Date Made By
IV-C-4
EXHIBIT IV-D
FORM OF NOTE
HOMESTAKE MINING COMPANY OF CALIFORNIA
PROMISSORY NOTE DUE JULY , 2003
$17 18
19
FOR VALUE RECEIVED, HOMESTAKE MINING COMPANY OF CALIFORNIA, a
California corporation ("U.S. Borrower"), promises to pay to the order of [NAME
OF LENDER] ("Payee"), on or before July , 2003, the lesser of (x) 20 ($[1]) and
(y) the unpaid principal amount of all advances made by Payee to U.S. Borrower
as Loans under the Credit Agreement referred to below.
U.S. Borrower also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in full, at the rates
and at the times which shall be determined in accordance with the provisions of
that certain Amended and Restated Credit Agreement dated as of July , 1998 by
and among Homestake Mining Company, a Delaware corporation, Homestake Mining
Company of California, a California corporation, Homestake Canada Inc., an
Ontario corporation, Homestake Gold of Australia Limited, a South Australia
corporation, Plutonic Resources Limited, a New South Wales corporation, the
financial institutions listed therein as Lenders, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders, Chase Securities Australia
Limited, as Australian Administrative Agent for Lenders, Chase Securities Inc.
as Arranger for Lenders, Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), and The Chase Manhattan Bank, as Administrative Agent
for Lenders (said Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined).
This Note is one of U.S. Borrower's "Notes" which in the
aggregate may evidence up to $430,000,000 principal amount of Loans and is
issued pursuant to and entitled to the benefits of the Credit Agreement, to
which reference is hereby made for a more complete statement of the terms and
conditions under which the Loans evidenced hereby were made and are to be
repaid.
All payments of principal and interest in respect of this Note
shall be made in Dollars in same day funds, without defense, setoff or
counterclaim, free of any restriction or
IV-D-1
condition, and shall be delivered to Administrative Agent at Administrative
Agent's U.S. Lending Office at such times as are provided in the Credit
Agreement. Until notified in writing of the transfer of this Note, U.S. Borrower
and Administrative Agent shall be entitled to deem Payee, or such Person who has
been so identified by the transferor in writing to U.S. Borrower and
Administrative Agent as the holder of this Note, as the owner and holder of this
Note. Each of Payee and any subsequent holder of this Note agrees, by its
acceptance hereof, that before disposing of this Note or any part hereof it will
make a notation hereon of all Loans evidenced by this Note and all principal
payments previously made hereunder and of the date to which interest hereon has
been paid; provided, however, that the failure to make a notation of any payment
made on this Note shall not limit or otherwise affect the obligations of U.S.
Borrower hereunder with respect to payments of principal of or interest on this
Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day, but not later than July , 2003, and such extension of
time shall be included in the computation of the payment of interest on this
Note.
This Note is subject to mandatory prepayment and to prepayment
at the option of U.S. Borrower as provided in subsection 2.4A of the Credit
Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note, together with all accrued and unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment
as provided in subsections 10.1 and 10.18 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
U.S. Borrower, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
U.S. Borrower promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in subsection 10.2 of the
Credit Agreement, incurred in the collection and enforcement of this Note. U.S.
Borrower and any endorsers of this Note hereby consent to renewals and
extensions of time at or after the maturity hereof, without notice, and hereby
waive diligence, presentment, protest, demand and notice of every kind
IV-D-2
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, U.S. Borrower has caused this Note to be
duly executed and delivered by its officer thereunto duly authorized as of the
date and at the place first written above.
HOMESTAKE MINING COMPANY OF
CALIFORNIA
By: __________________________
Title: ________________________
IV-D-3
TRANSACTIONS
ON
NOTE
Amount of Loan Amount of
Type of Loan Made Made This Date Principal Paid
Date This Date This Date
Outstanding
Principal Balance Notation
This Date Made By
IV-D-4
EXHIBIT V
FORM OF GRID GOLD ACKNOWLEDGEMENT
HOMESTAKE MINING COMPANY OF CALIFORNIA
CREDIT GOLD OBLIGATION DUE JULY , 2003
21
22
FOR VALUE RECEIVED, HOMESTAKE MINING COMPANY OF CALIFORNIA, a
California corporation ("U.S. Borrower"), promises to pay to the order of [NAME
OF LENDER] ("Payee"), on or before July , 2003, the number of Ounces of Gold
advanced from time to time by Payee to Borrower as Gold Loans under the Credit
Agreement referred to below.
U.S. Borrower also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in full, at the rates
and at the times which shall be determined in accordance with the provisions of
that certain Amended and Restated Credit Agreement dated as of July , 1998 by
and among Homestake Mining Company, a Delaware corporation, Homestake Mining
Company of California, a California corporation, Homestake Canada Inc., an
Ontario corporation, Homestake Gold of Australia Limited, a South Australia
corporation, Plutonic Resources Limited, a New South Wales corporation, the
financial institutions listed therein as Lenders, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders, Chase Securities Australia
Limited, as Australian Administrative Agent for Lenders, Chase Securities Inc. ,
as Arranger for Lenders, Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), and The Chase Manhattan Bank, as Administrative Agent
for Lenders (said Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined).
This Grid Gold Acknowledgement (this "Acknowledgement") is one
of U.S. Borrower's "Grid Gold Acknowledgements" which in the aggregate may
evidence up to 750,000 Ounces of Gold and is issued pursuant to and entitled to
the benefits of the Credit Agreement, to which reference is hereby made for a
more complete statement of the terms and conditions under which the Gold Loans
evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this
Acknowledgement shall be made in accordance with the provisions of the Credit
Agreement, in Gold or in Dollars, in same day funds, without defense, setoff or
counterclaim, free of any restriction or
V-1
condition, and shall be delivered, if paid in Dollars, to the Administrative
Agent's Lending Office or, if paid in Gold, Administrative Agent's account with
J.P. Morgan, London, England, or such other bullion depository as may be
designated by Administrative Agent from time to time, before 12:00 Noon (London
time) on the day specified for payment. Until notified in writing of the
transfer of this Acknowledgement, U.S. Borrower and Administrative Agent shall
be entitled to deem Payee, or such Person who has been so identified by the
transferor in writing to U.S. Borrower and Administrative Agent as the holder of
this Acknowledgement, as the owner and holder of this Acknowledgment. Each of
Payee and any subsequent holder of this Acknowledgement agrees, by its
acceptance hereof, that before disposing of this Acknowledgement or any part
hereof it will make a notation hereon of all Loans evidenced by this
Acknowledgement and all principal payments previously made hereunder and of the
date to which interest hereon has been paid; provided, however, that the failure
to make a notation of any payment made on this Acknowledgement shall not limit
or otherwise affect the obligations of U.S. Borrower hereunder with respect to
payments of principal of or interest on this Acknowledgement.
Unless Administrative Agent receives notice from U.S. Borrower
within seven Business Days of U.S. Borrower's receipt of any Gold, the quantity
and quality of the Gold so received shall be deemed to be as set forth in
Administrative Agent's delivery order. If there is any discrepancy in the amount
or quality of Gold actually Delivered, the amount of such difference shall be
settled in Dollars (based on the Dollar Equivalent on the date of Delivery of
the Gold required to be advanced hereunder and the Gold actually Delivered)
promptly after the Delivery thereof. U.S. Borrower assumes all risk of loss,
theft or detention of or damage to any Gold Delivered hereunder from the date
U.S. Borrower receives Delivery of such Gold until the date of its return by
Delivery to Administrative Agent.
Whenever any payment on this Acknowledgement shall be stated
to be due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day, but not later than July , 2003 and such
extension of time shall be included in the computation of the payment of
interest on this Acknowledgement.
This Acknowledgement is subject to mandatory prepayment and to
prepayment at the option of U.S. Borrower as provided in subsection 2.4A of the
Credit Agreement.
THE CREDIT AGREEMENT AND THIS ACKNOWLEDGEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Acknowledgement, together with all accrued and
unpaid interest thereon, may become, or may be declared to be, due and payable
in the manner, upon the conditions and with the effect provided in the Credit
Agreement.
V-2
The terms of this Acknowledgement are subject to amendment
only in the manner provided in the Credit Agreement.
This Acknowledgement is subject to restrictions on transfer or
assignment as provided in subsections 10.1 and 10.18 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Acknowledgement or the Credit Agreement shall alter or impair the
obligations of U.S. Borrower, which are absolute and unconditional, to pay the
principal of and interest on this Acknowledgement at the place, at the
respective times, and in the currency herein prescribed.
U.S. Borrower promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in subsection 10.2 of the
Credit Agreement, incurred in the collection and enforcement of this
Acknowledgement. U.S. Borrower and any endorsers of this Acknowledgement hereby
consent to renewals and extensions of time at or after the maturity hereof,
without notice, and hereby waive diligence, presentment, protest, demand and
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, U.S. Borrower has caused this
Acknowledgement to be duly executed and delivered by its officer thereunto duly
authorized as of the date and at the place first written above.
HOMESTAKE MINING COMPANY OF CALIFORNIA
By: __________________________
Title: ________________________
V-3
TRANSACTIONS
ON
GRID GOLD ACKNOWLEDGEMENT
Amount of Loan Amount of
Type of Loan Made Made This Date Principal Paid
Date This Date This Date
Outstanding
Principal Balance Notation
This Date Made By
V-4
EXHIBIT VI
FORM OF COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected [President/Vice President] and
[Chief Financial Officer/Treasurer/Controller] of each of
Homestake Mining Company, a Delaware corporation ("Company"),
Homestake Mining Company of California, a California
corporation ("U.S. Borrower") and Homestake Canada Inc., an
Ontario corporation ("Canadian Borrower"),
[Directors/Secretary/Authorized Signor] of Homestake Gold of
Australia Limited, a South Australia corporation ("HGAL"), and
[Directors/Secretary/Authorized Signor] of Plutonic Resources
Limited, a New South Wales corporation ("Plutonic"; and
collectively with HGAL, "Australian Borrowers");
(2) We have reviewed the terms of that certain Amended and
Restated Credit Agreement dated as of July , 1998 (said Credit
Agreement, as it may be amended, modified or supplemented from
time to time, being the "Credit Agreement", the terms defined
therein and not otherwise defined in this Certificate
(including Attachment No. 1 annexed hereto and made a part
hereof) being used in this Certificate as therein defined), by
and among Homestake Mining Company, a Delaware corporation
("Company"), Homestake Mining Company of California, a
California corporation ("U.S. Borrower"), Homestake Canada
Inc., an Ontario corporation ("Canadian Borrower"), Homestake
Gold of Australia Limited, a South Australia corporation
("HGAL"), Plutonic Resources Limited, a New South Wales
corporation ("Plutonic"; and collectively with HGAL,
"Australian Borrowers"), the financial institutions listed
therein as Lenders ("Lenders"), The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders
("Canadian Administrative Agent"), Chase Securities Australia
Limited, as Australian Administrative Agent for Lenders
("Australian Administrative Agent"), Chase Securities Inc., as
Arranger for Lenders ("Arranger"), Deutsche Bank A.G., as
Documentation Agent for Lenders ("Documentation Agent"), and
The Chase Manhattan Bank, as Administrative Agent for Lenders
("Administrative Agent"), and we have made, or have caused to
be made under our supervision, a review in reasonable detail
of the transactions and condition of Company, U.S. Borrower,
Canadian Borrower, HGAL and Plutonic and their respective
Subsidiaries during the accounting period covered by the
attached financial statements;
(3) The examination described in paragraph (2) above did not
disclose, and we have no knowledge of, the existence of any
condition or event which
VI-1
constitutes an Event of Default or Potential Event of Default
during or at the end of the accounting period covered by the
attached financial statements or as of the date of this
Certificate[, except as set forth below];
[Set forth [below] [in a separate attachment to this
Certificate] are all exceptions to paragraph (3) above listing, in detail, the
nature of the condition or event, the period during which it has existed and the
action which Company, U.S. Borrower, Canadian Borrower, HGAL and/or Plutonic has
taken, is taking, or proposes to take with respect to each such condition or
event:
[ ]
(4) Company, U.S. Borrower, Canadian Borrower, HGAL, and
Plutonic are in compliance with the restrictions contained
in subsections 6.1 through 6.11 of the Credit Agreement
[except that [describe any instances where not in
compliance]]; and
(5) There have been no changes to the Subsidiaries of Company
and the Borrowers identified in Schedule 4.1 during the period
covered by this Compliance Certificate [except that [describe
changes to Schedule 4.1]].
The foregoing certifications, together with the computations
set forth in Attachment No. 1 annexed hereto and made a part hereof and the
financial statements delivered with this Certificate in support hereof, are made
and delivered this __________ day of __________, ____ pursuant to subsection
5.1(iii) of the Credit Agreement.
HOMESTAKE MINING COMPANY
By: ________________________
Title: _____________________
By: ________________________
Title: _____________________
HOMESTAKE MINING COMPANY OF
CALIFORNIA
By: ________________________
Title: _____________________
By: ________________________
Title: _____________________
VI-2
HOMESTAKE CANADA INC.
By: ________________________
Title: _____________________
By: ________________________
Title: _____________________
HOMESTAKE GOLD OF AUSTRALIA
LIMITED
By: ________________________
Title: _____________________
By: ________________________
Title: _____________________
PLUTONIC RESOURCES LIMITED
By: ________________________
Title: _____________________
By: ________________________
Title: _____________________
VI-3
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a
Compliance Certificate dated as of ____________, ____ and pertains to the period
from ____________, ____ to ____________, ____. Subsection references herein
relate to subsections of the Credit 955910098Agreement.
A. Indebtedness:
1. Aggregate principal amount of
Indebtedness of Agua de la Falda
S.A., Lachlan Resources N.L and
Prime to Company or any other
subsidiary of Company
under subsection 6.1(iii): $_____________
2. Maximum aggregate principal amount of
Indebtedness of Agua de la Falda S.A., Lachlan
Resources N.L. and Prime to Company
or any other Subsidiary of Company (prior to Prime
Acquisition Date) permitted under
subsection 6.1(iii): $50,000,000
3. Nonrecourse Debt of (a) Prime (prior to Prime
Acquisition Date), Australian Borrowers,
Canadian Borrower and any
Subsidiary of Company (other than
U.S. Borrower) to the extent such Indebtedness
is secured solely by Liens on assets and
properties owned on the Effective Date that
are undeveloped,
and (b) U.S. Borrower secured solely by Liens
on assets and properties owned on the
Effective Date that are undeveloped
permitted under subsection 6.1(viii): $_____________
4. Maximum amount of Non-Recourse Debt
Indebtedness permitted under
subsection 6.1(viii): $500,000,000
5. Additional Indebtedness of Subsidiaries
of Borrowers permitted under
subsection 6.1(ix)(a): $______________
VI-4
6. Maximum amount of additional Indebtedness
of Subsidiaries of Borrowers permitted
under subsection 6.1(ix)(a): $50,000,000
7. Additional Indebtedness of Borrowers
permitted under subsection 6.1(ix)(b): $______________
8. Maximum amount of additional Indebtedness of Borrowers
permitted under subsection 6.1(ix)(b): $170,000,000 less
the amount listed in
B. Liens:
1. Indebtedness secured by Purchase Money Security
Interests permitted under subsection 6.2(iii): $_____________
2. Maximum amount of Indebtedness secured by
Purchase Money Security Interests permitted
under subsection 6.2(iii): $100,000,000
C. Investments:
1. Investments (other than Investments described
in Schedule 6.3) Company and its
Subsidiaries are permitted to continue
to own under subsection 6.3(iv): $_____________
2. Maximum aggregate amount of all Investments (other
than Investments described in Schedule 6.3) Company
and its Subsidiaries are permitted
to continue to own under subsection 6.3(iv): $20,000,000
3. Investments acquired in connection with Asset Sales
permitted under
subsection 6.3(vi): $_____________
4. Maximum aggregate amount of all Investments in
connection with Asset Sales permitted under
subsection 6.3(vi): $100,000,000
VI-5
D. Contingent Obligations:
1. Aggregate notional principal amount of
Interest Rate Protection Agreements
permitted under subsection 6.4(ii): $_____________
2. Maximum notional principal amount of Interest Rate
Protection Agreements permitted
under subsection 6.4(ii): $100,000,000
3. Aggregate amount guarantied by Company and its
Subsidiaries under guaranties of any obligations of
Company's Subsidiaries (including Joint Ventures)
permitted under subsection 6.4(iv): $_____________
4. Maximum aggregate amount permitted
to be guaranteed under subsection 6.4(iv): $200,000,000
5. Aggregate amount outstanding
under standby letters of credit and
surety bonds securing Indebtedness or
Contingent Obligations of Company and its
Subsidiaries permitted under subsection 6.4(viii)(b): $____________
6. Maximum amount of aggregate liability
under all such standby letters of credit and
surety bonds under subsection 6.4(viii)(b): $100,000,000
E. Minimum Consolidated Net Worth (as of __________, ____)
1. Company's current Consolidated Net Worth: $_____________
2. Minimum Consolidated Net Worth required under the
Credit Agreement:
$500,000,000
F. Maximum Leverage Ratio (as of __________, _____)
1. Consolidated Total Debt: $_____________
2. Consolidated Net Worth: $_____________
3. Ratio of F.1 to F.1 + F.2: _____ to 1.00
VI-6
4. Maximum Leverage Ratio permitted
under subsection 6.6B: 0.50 to 1.00
G. Interest Coverage Ratio (as of __________, _____)
1. Consolidated Net Income $_____________
2. Consolidated Interest Expense $_____________
3. Total depreciation and amortization expense $_____________
4. Total Non-Cash Writedowns other than writedowns
that constitute recognition of future cash expenditures
reflected in Consolidated Net Income after December
31, 1997 $_____________
5. Consolidated EBITDA $_____________
(sum of G.1 through G.4)
6. Consolidated Interest Expense $_____________
7. Ratio of G.5 to G.6 _____ to 1.00
8. Minimum Coverage Ratio permitted
under subsection 6.6C 3.50 to 1.00
VI-7
EXHIBIT VII-A
FORM OF OPINION OF THELEN, MARRIN, JOHNSON & BRIDGES
VII-A-1
July __, 1998
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
150 King Street West 16th Floor
Box 68
Toronto Ontario
Canada MSH 1J9
and
Chase Securities Australia Limited,
as Australian Administrative Agent
Level 35 AAP Center
259 George Street
Sydney NSW Australia 2000
and
Chase Securities Inc.,
as Arranger
270 Park Avenue
New York, NY 10017
and
The Chase Manhattan Bank,
as Administrative Agent
1 Chase Manhattan Plaza
New York, NY 10081
and
and the Lenders Listed
on Schedule I Hereto
Re: Credit Agreement dated July , 1998 among Homestake Mining
Company, Homestake Mining Company of California, Homestake
Canada Inc., Homestake Gold of Australia Limited, Plutonic
Resources Limited, the Lenders named therein, The Chase
Manhattan Bank of Canada, as Canadian Administrative Agent,
Chase Securities Australia Limited, as Australian
Administrative Agent, Chase Securities Inc., as Arranger, and
The Chase Manhattan Bank, as Administrative Agent
VII-A-2
Ladies and Gentlemen:
We have acted as special New York counsel to Homestake Mining
Company, a Delaware corporation (the "Company"), Homestake Mining Company of
California, a California corporation (the "U.S. Borrower"), Homestake Canada
Inc., an Ontario corporation (the "Canadian Borrower"), Homestake Gold of
Australia Limited, a South Australia corporation ("HGAL"), and Plutonic
Resources Limited ("Plutonic", and collectively with HGAL, "Australian
Borrowers") in connection with the execution and delivery of the Credit
Agreement dated as July , 1998, among the Company, the U.S. Borrower, the
Canadian Borrower, the Australian Borrowers, the Lenders named therein, The
Chase Manhattan Bank of Canada, as Canadian Administrative Agent, Chase
Securities Australia Limited, as Australian Administrative Agent, Chase
Securities Inc., as Arranger, and The Chase Manhattan Bank, as Administrative
Agent (the "Credit Agreement"), and certain transactions relating thereto. All
terms used herein that are defined in the Credit Agreement have the respective
meanings specified in the Credit Agreement. This letter is being delivered to
you in satisfaction of the condition set forth in subsection 3.1E of the Credit
Agreement and with the understanding that you are entering into the Credit
Agreement in reliance on the opinions expressed herein.
In our capacity as such counsel, we have examined the
originals, or copies identified to our satisfaction as being true copies, of
such records, documents or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. These records,
documents and instruments include the following:
(a) The Certificates or Articles of Incorporation of the
Company and the U.S. Borrower;
(b) The By-Laws of the Company and the U.S. Borrower;
(c) Certain records of proceedings and actions of the
Board of Directors of the Company and the U.S.
Borrower;
(d) The Credit Agreement and the Exhibits and Schedules
annexed thereto;
(e) The Notes and Grid Gold Acknowledgements; and
(f) The forms of Drafts.
We have relied with respect to certain factual matters, upon
the certificates of certain officers of each of the Company and the U.S.
Borrower, copies of which are being delivered to you herewith, and upon the
representations and warranties of the Company and the Borrowers contained in the
Credit Agreement.
VII-A-3
We have also been furnished with, and have relied upon,
evidence or advice satisfactory to us from the offices of the Secretaries of
State of California and Delaware as appropriate, with respect to the good
standing of the Company or the U.S. Borrower. In addition, we have obtained and
relied upon such certificates and assurances from public officials as we have
deemed necessary, desirable or appropriate to render the opinions herein.
We have assumed the genuineness and authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies, drafts or forms. In making our examination
of documents executed or to be executed by Persons other than the Company or the
U.S. Borrower we have assumed that such other Persons had or have the power to
enter into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action and execution and delivery of such
documents by such Persons and the validity and binding effect thereof in
relation to such Persons.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary, including, without
limitation, Regulations G, T, U and X of the Board of Governors of the Federal
Reserve System. We are opining herein as to the effect on the subject
transaction of only the federal laws of the United States, the laws of the
States of New York and California and the general corporate law of the State of
Delaware.
On the basis of the foregoing, and in reliance thereon, and
subject to the limitations, qualifications and exceptions set forth below, we
are of the opinion that:
1. Each of the Company and the U.S. Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to own and operate its properties and to execute, deliver and perform
the Credit Agreement and, in the case of the U.S. Borrower, the Notes and the
Grid Gold Acknowledgements and to carry out the transactions contemplated
thereby.
2. The execution, delivery and performance of the Credit
Agreement by each of the Company and the U.S. Borrower have been duly authorized
by all necessary corporate action on the part of the Company or such Borrower,
as the case may be. The issuance of the Notes and the Grid Gold Acknowledgements
by the U.S. Borrower has been duly authorized by all necessary corporate action
on the part of such Borrower.
3. Assuming the due execution and delivery of the Credit
Agreement by the Company and each Borrower, the Credit Agreement constitutes the
legally valid and binding obligation of the Company and each Borrower
enforceable against the Company and each Borrower in accordance with its terms.
Assuming the due issuance of the Notes, Grid Gold Acknowledgements and Bankers'
Acceptances by each Borrower, each of the Notes, Grid Gold Acknowledgements and
Bankers' Acceptances constitutes the legally valid and binding obligation of the
Borrower issuing the same enforceable against such Borrower in accordance with
its terms.
VII-A-4
4. It is not necessary in connection with the execution and
delivery of the Credit Agreement by the Company or the Borrowers or the issuance
of the Notes, Grid Gold Acknowledgements and Bankers' Acceptances by the
Borrowers to register the Credit Agreement, the Notes, the Grid Gold
Acknowledgements or the Bankers' Acceptances under the Securities Act of 1933 or
to qualify an indenture in respect of the Notes under the Trust Indenture Act of
1939, as amended.
5. None of the execution and delivery of the Credit Agreement
by the Company and the Borrowers, the issuance of the Notes, Grid Gold
Acknowledgements or Bankers' Acceptances by the Borrowers, the consummation of
the transactions contemplated by the Credit Agreement, or the compliance with
the terms and conditions thereof by the Company or the Borrowers, as the case
may be, conflicts with, results in a breach or a violation of, or constitutes a
default under, any of the terms, conditions or provisions of (y) the Certificate
or Articles of Incorporation or By-Laws of the Company or the U.S. Borrower, or
(z) any present United States federal or New York statute, rule or regulation
that is binding on the Company or any Borrower.
6. No governmental consents, approvals, registrations,
declarations or filings are required to be obtained or made by the Company or
any Borrower in connection with the execution and delivery of the Credit
Agreement or, in the case of the Borrowers, the Notes, Grid Gold
Acknowledgements or Bankers' Acceptances except as have already been obtained.
7. The making of the Loans and the application of the proceeds
thereof as provided in the Credit Agreement do not violate or require filings
under Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
8. All Obligations of Company under the Credit Agreement are
within the definition of "Senior Debt" in the indenture pursuant to which the
Subordinated Debentures have been issued.
Our opinion as to enforceability of the Credit Agreement, the
Notes, Grid Gold Acknowledgements and Bankers' Acceptances is qualified by and
subject to:
(a) limitations imposed by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting the enforcement of creditors' rights generally, and
laws relating to fraudulent transfers or conveyances,
preferences and equitable subordination;
(b) general principles of equity, including without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of
specific performance or injunctive relief (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(c) the qualification that certain remedial provisions of the
Credit Agreement may be unenforceable in whole or in part, but
such document
VII-A-5
contains adequate provisions for practical realization of the
benefits purported to be created thereby;
(d) the unenforceability under certain circumstances of
provisions purporting to release or exculpate any party from
liability for its acts or omissions, or purporting to impose a
duty upon any party to indemnify any other party when any
claimed damages result from the gross negligence or willful
misconduct of the party seeking such indemnity;
(e) the unenforceability under certain circumstances of
waivers, and provisions imposing liquidated damages, late
payment charges or forfeitures, if such amounts are determined
to be penalties in light of the actual damages incurred;
(f) the qualification that any money judgment rendered by a
court in the State of New York or California will be payable
in United States dollars.
This opinion is being delivered upon the express instructions
of each of the Company and the Borrowers to the Agents, the Arranger and the
Lenders and their permitted assignees and participants and is solely for their
benefit in connection with the above transactions. This opinion may not be
relied upon for any other purpose, or relied upon by any other person, firm or
corporation for any purpose, without our prior written consent; provided,
however, that each of the Agents, the Arranger and the Lenders, and their
permitted assigns and participants, may provide this opinion (i) to bank
examiners and other regulatory authorities should they so request or in
connection with their normal examinations, (ii) to its respective independent
auditors and attorneys, (iii) pursuant to order or legal process of any court or
governmental agency, (iv) in connection with any action to which it is a party
arising out of the transactions contemplated by the Credit Agreement, or (v) to
prospective assignees of, or participants in, all or any portion of its Loans,
Bankers' Acceptances, participations in Letters of Credit or Overall Commitment
under the Credit Agreement.
Very truly yours,
VII-A-6
SCHEDULE I
VII-A-7
EXHIBIT VII-B
FORM OF OPINION OF WAYNE KIRK, ESQ.
July __, 1998
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
150 King Street West 16th Floor
Box 68
Toronto Ontario
Canada MSH 1J9
and
Chase Securities Australia Limited,
as Australian Administrative Agent
Level 35 AAP Center
259 George Street
Sydney NSW Australia 2000
and
Chase Securities Inc.,
as Arranger
270 Park Avenue
New York, NY 10017
and
The Chase Manhattan Bank,
as Administrative Agent
1 Chase Manhattan Plaza
New York, NY 10081
and the Lenders Listed on Schedule I Hereto
Re: Credit Agreement dated July , 1998 among Homestake Mining
Company, Homestake Mining Company of California, Homestake Canada
Inc., Homestake Gold of Australia Limited, Plutonic Resources
Limited. the Lenders named therein, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Securities
Australia Limited, as Australian Administrative Agent, Chase
Securities Inc., as Arranger, and The Chase Manhattan Bank, as
Administrative Agent
VII-B-1
Ladies and Gentlemen:
I have acted as counsel to Homestake Mining Company, a
Delaware corporation (the "Company"), Homestake Mining Company of California, a
California corporation (the "U.S. Borrower"), Homestake Canada Inc., an Ontario
corporation (the "Canadian Borrower"), Homestake Gold of Australia Limited, a
South Australia corporation ("HGAL"), and Plutonic Resources Limited
("Plutonic"; and collectively with HGAL, the "Australian Borrowers" and,
together with the U.S. Borrower and the Canadian Borrower, the "Borrowers"), in
connection with the execution and delivery of the Credit Agreement dated as July
, 1998, among the Company, the U.S. Borrower, the Canadian Borrower, the
Australian Borrower, the Lenders named therein, The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Securities Australia Limited, as
Australian Administrative Agent, Chase Securities Inc., as Arranger, and The
Chase Manhattan Bank, as Administrative Agent (the "Credit Agreement"), and
certain transactions relating thereto. All terms used herein that are defined in
the Credit Agreement have the respective meanings specified in the Credit
Agreement. This letter is being delivered to you in satisfaction of the
condition set forth in subsection 3.1E of the Credit Agreement and with the
understanding that you are entering into the Credit Agreement in reliance on the
opinions expressed herein.
In my capacity as Vice President, General Counsel and
Corporate Secretary of the Company and counsel to the Company and the Borrowers,
I have personally supervised the actions of the Company and the Borrowers in
connection with the authorization, execution and delivery of the Credit
Agreement and the Exhibits and Schedules thereto, the Notes and the Grid Gold
Acknowledgements. In my capacity as counsel to the Company and the Borrowers, I
have examined the originals, or copies identified to my satisfaction as being
true copies, of such records, documents or other instruments as in my judgment
are necessary or appropriate to enable me to render the opinions expressed
below. These records, documents and instruments include the following:
(a) The Certificates or Articles of Incorporation and the
Articles of Association of the Company, the U.S.
Borrower, the Canadian Borrower and the Australian
Borrowers;
(b) The By-Laws of the Company, the U.S. Borrower, the
Canadian Borrower and the Australian Borrowers;
(c) Certain records of proceedings and actions of the Board
of Directors of the Company, the U.S. Borrower, the
Canadian Borrower and the Australian Borrowers;
(d) The Credit Agreement and the Exhibits and Schedules
annexed thereto;
(e) The Notes and Grid Gold Acknowledgements;
VII-B-2
(f) The form of Drafts; and
(g) The material indentures, mortgages, contracts and
agreements of the Company and the Borrowers identified
in the Opinion Certificates referred to below.
I have been furnished with, and have relied upon, the
certificates of certain officers of each of the Company, the U.S. Borrower, the
Canadian Borrower, HGAL, and Plutonic (each an "Opinion Certificate") with
respect to certain factual matters, copies of which are being delivered to you
herewith. Attached to such Opinion Certificates are, among other things,
listings certified by the Persons executing such Opinion Certificates to be all
of the indentures, mortgages, deeds of trust, material pledge and security
agreements, bank loans, credit agreements and other material evidences of
indebtedness of the Company, the U.S. Borrower, the Canadian Borrower, HGAL, and
Plutonic (collectively, the "Debt Agreements") and listings certified by the
Persons executing such Opinion Certificates to be all of the other agreements by
which the Company, the U.S. Borrower, the Canadian Borrower, HGAL, or Plutonic
is or will be, after the execution of the documents referred to herein, a party
or by which the Company, the U.S. Borrower, the Canadian Borrower, HGAL, or
Plutonic or any of their respective properties are bound or affected and which
are certified to be material to the business, operations or properties of the
Company, the U.S. Borrower, the Canadian Borrower , HGAL, or Plutonic
(collectively, the "Material Agreements"). I have no reason to believe that the
Agents, the Arranger or the Lenders and I are not entitled to rely upon the
certificates and the representations and warranties referred to above.
I have also been furnished with, and have relied upon,
evidence or advice satisfactory to me from the offices of the Secretaries of
State of California and Delaware and the Ministry of Consumer and Commercial
Relations of Ontario, [need entity for Australian certification] as appropriate,
with respect to the good standing or corporate status of the Company, the U.S.
Borrower, the Canadian Borrower, HGAL, and Plutonic. In addition, I have
obtained and relied upon such other certificates and assurances from public
officials as I have deemed necessary, desirable or appropriate to render the
opinions herein, copies of which have been delivered to Administrative Agent.
I have assumed the genuineness and authenticity of all
documents submitted to me as originals and the conformity to originals of all
documents submitted to me as copies, drafts or forms. In making my examination
of documents executed or to be executed by Persons other than the Company, the
U.S. Borrower, the Canadian Borrower or the Australian Borrowers, I have assumed
that such other Persons had or have the power to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action and execution and delivery of such documents by such Persons
and the validity and binding effect thereof in relation to such Persons.
I have investigated such questions of law for the purpose of
rendering this opinion as I have deemed necessary, including, without
limitation, Regulations G, T, U and X of the Board of Governors of the Federal
Reserve System. I am opining herein as to the effect on the subject transaction
of the federal laws of the United States, the laws of the State of California
and, in respect only of the general corporation law, the laws of the State of
Delaware.
VII-B-3
On the basis of the foregoing, and in reliance thereon, and
subject to the limitations, qualifications and exceptions set forth below, I am
of the opinion that:
1. Each of the Company and the Borrowers is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to own and operate its properties and to carry on its business as now
conducted, to execute, deliver and perform the Credit Agreement and, in the case
of the Borrowers, the Notes, the Grid Gold Acknowledgements and the Bankers'
Acceptances, and to carry out the transactions contemplated thereby.
2. Each of the Company and the Borrowers has not failed to
qualify to do business as a foreign corporation in any state or province where
the consequence of failure to be so qualified would have a material adverse
effect on the Company's or any Borrower's business, operations or properties.
3. The execution, delivery and performance of the Credit
Agreement by each of the Company and the Borrowers have been duly authorized by
all necessary corporate action on the part of the Company and the Borrowers. The
issuance of the Notes, the Grid Gold Acknowledgements and the Bankers'
Acceptances by each Borrower has been duly authorized by all necessary corporate
action on the part of such Borrower.
4. The Credit Agreement has been duly executed and delivered
by the Company and each Borrower. The Notes and Grid Gold Acknowledgements have
been duly issued by the Borrowers.
5. It is not necessary in connection with the execution and
delivery of the Credit Agreement by the Company or the Borrowers or the issuance
of the Notes, the Grid Gold Acknowledgements and the Bankers' Acceptances by the
Borrowers to register the Credit Agreement, the Notes, the Grid Gold
Acknowledgements or the Bankers' Acceptances under the Securities Act of 1933 or
to qualify an indenture in respect of the Notes under the Trust Indenture Act of
1939, as amended.
6. None of the execution and delivery of the Credit Agreement
by the Company and the Borrowers, the issuance of the Notes, Grid Gold
Acknowledgements and Bankers' Acceptances by the Borrowers, the consummation of
the transactions contemplated by the Credit Agreement, or the compliance with
the terms and conditions thereof by the Company or the Borrowers, as the case
may be, (A) conflicts with, results in a breach or a violation of, or
constitutes a default under, any of the terms, conditions or provisions of (w)
the Certificate or Articles of Incorporation, Articles of Association or By-Laws
of the Company or the Borrowers, (x) any Debt Agreement or Material Agreement,
(y) any order, writ, judgment or decree to which, to my knowledge, the Company
or any Borrower is a party or by which, to my knowledge, any of their respective
properties or assets are bound and which is material to the Company or any
Borrower, or (z) any present United States federal or California statute, rule
or regulation that is binding on the Company or any Borrower, or
VII-B-4
(B) results in the creation of any Lien upon any of the properties or assets of
the Company or any Borrower under any agreement referred to in clause (x) above.
7. To my knowledge, there is no action, suit or proceeding
pending or threatened against or affecting the Company or any Borrower at law or
in equity before any court, arbitrator or administrative or governmental body
(a) in which an order has been entered preventing the making of any of the Loans
or other extensions of credit under the Credit Agreement, or (b) that could,
either individually or in the aggregate, have a material adverse effect on the
ability of the Company or any Borrower to perform its obligations under the
Credit Agreement or, in the case of any Borrower, the Notes, the Grid Gold
Acknowledgements or the Bankers' Acceptances to which it is a party or the
financial condition of the Company and its Subsidiaries, taken as a whole, or
any Borrower.
8. Neither the Company nor any Borrower is an "investment
company" or a company "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended, or subject to
regulation under the Public Utility Holding Company Act of 1935, as amended, the
Federal Power Act, as amended, the Interstate Commerce Act, as amended, or any
federal or state statute or regulation limiting its ability to incur
Indebtedness with respect to money borrowed or to create Liens on any of its
properties or assets to secure such Indebtedness.
9. No United States federal or California governmental
consents, approvals, registrations, declarations or filings are required to be
obtained or made by the Company or any Borrower in connection with the execution
and delivery of the Credit Agreement or, in the case of the Borrowers, the
Notes, Grid Gold Acknowledgements or Bankers' Acceptances except as have already
been obtained.
10. The making of the Loans and the application of the
proceeds thereof as provided in the Credit Agreement do not violate or require
filings under Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System.
11. All Obligations of Company under the Credit Agreement are
within the definition of "Senior Debt" in the indenture pursuant to which the
Subordinated Debentures have been issued.
This opinion is being delivered upon the express instructions
of each of the Company and the Borrowers to the Agents, the Arranger and the
Lenders, and their permitted assignees and participants, and is solely for their
benefit in connection with the above transactions. This opinion may not be
relied upon for any other purpose, or relied upon by any other person, firm or
corporation for any purpose, without prior written consent; provided, however,
that each of the Agents, the Arranger and the Lenders, and their permitted
assignees and participants, may provide this opinion (i) to bank examiners and
other regulatory authorities should they so request or in connection with their
normal examinations, (ii) to its respective independent auditors and attorneys,
(iii) pursuant to order or legal process of any court or governmental agency,
(iv) in connection with any action to which it is a party arising out of the
transactions contemplated by the Credit Agreement, or (v) to prospective
VII-B-5
assignees of, or participants in, all or any portion of its Loans, Bankers'
Acceptances, participations in Letters of Credit or Overall Commitment under the
Credit Agreement.
Very truly yours,
VII-B-6
SCHEDULE I
VII-B-7
EXHIBIT VIII-A
FORM OF OPINION OF OSLER, HOSKIN & HARCOURT
July __, 1998
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
150 King Street West 16th Floor
Box 68
Toronto Ontario MSH 1J9 Canada
and
Chase Securities Australia Limited,
as Australian Administrative Agent
Level 35 AAP Center
259 George Street
Sydney NSW Australia 2000
and
Chase Securities Inc.,
as Arranger
270 Park Avenue
New York, NY 10017
and
The Chase Manhattan Bank,
as Administrative Agent
1 Chase Manhattan Plaza
New York, NY 10081
and the Lenders Listed on Schedule I Hereto
Re: Credit Agreement dated as of July , 1998 among Homestake
Mining Company, Homestake Mining Company of California,
Homestake Canada Inc., Homestake Gold of Australia Limited,
Plutonic Resources Limited the Lenders named therein, The
Chase Manhattan Bank of Canada, as Canadian Administrative
Agent, Chase Securities Australia Limited, as Australian
Administrative Agent, Chase Securities Inc., as Arranger, and
The Chase Manhattan Bank, as Administrative Agent (the "Credit
Agreement")
VIII-A-1
Dear Sirs/Mesdames:
We have acted as Canadian counsel to Homestake Canada Inc.
(the "Canadian Borrower") in connection with the execution and delivery of the
above-noted Credit Agreement and certain transactions relating thereto. All
terms used herein that are defined in the Credit Agreement have the respective
meanings specified in the Credit Agreement. This letter is being delivered to
you in satisfaction of the condition set forth in subsection 3.1E of the Credit
Agreement and with the understanding that you are entering into the Credit
Agreement in reliance on the opinions expressed herein.
In our capacity as such counsel, we have examined the
originals, or copies identified to our satisfaction as being true copies, of
such records, documents or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. These records,
documents and instruments include the following:
(a) The Re-stated Articles of Incorporation and amendments
thereto (collectively, the "Articles of Incorporation")
of the Canadian Borrower;
(b) The By-Laws of the Canadian Borrower;
(c) Certain records of proceedings and actions of the Board
of Directors of the Canadian Borrower;
(d) The Credit Agreement and the Exhibits and Schedules
annexed thereto;
(e) The Notes and Grid Gold Acknowledgements; and
(f) The form of Drafts.
We have been furnished with, and have relied upon, a
certificate of incumbency of the Canadian Borrower setting forth the directors
and officers of the Canadian Borrower and certain of their respective
signatures.
We have also been furnished with, and have relied upon, such
certificates from public officials as we have deemed necessary, desirable or
appropriate to render the opinions herein.
We have assumed the genuineness and authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies, drafts or forms. In making our examination
of documents executed or to be executed by Persons other than the Canadian
Borrower we have assumed that such other Persons had or have the power to enter
into and perform all their respective obligations thereunder (including without
limitation the legal capacity of all such Persons who are individuals) and have
also assumed the due authorization by all requisite action and execution and
delivery of such documents by such Persons and the validity and binding effect
thereof in relation to such Persons.
VIII-A-2
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are solicitors qualified
to carry on the practice of law in the Province of Ontario and we express no
opinion as to any laws, or any matters governed by any laws, other than the laws
of the Province of Ontario and the federal laws of Canada applicable in the
Province of Ontario.
On the basis of the foregoing and subject to the
qualifications set forth below, we are of the opinion that:
1. The Canadian Borrower is a corporation duly incorporated
and validly existing under the laws of the Province of Ontario and has all the
powers of a natural person including all requisite corporate power and authority
(i) to own and lease its properties and assets; (ii) to carry on its business as
presently conducted; and (iii) to execute, deliver and perform the Credit
Agreement, the Notes issued by the Canadian Borrower (the "Canadian Notes"), the
Grid Gold Acknowledgements issued by the Canadian Borrower (the "Canadian Grid
Gold Acknowledgements") and all Bankers' Acceptances sold by it from time to
time and to carry out the transactions contemplated thereby.
2. The Canadian Borrower is registered as an extra-provincial
corporation in the Province of British Columbia.
3. The execution, delivery and performance of the Credit
Agreement and the issuance of the Canadian Notes, the Canadian Grid Gold
Acknowledgements and from time to time Banker's Acceptances by the Canadian
Borrower have been duly authorized by all necessary corporate action on the part
of the Canadian Borrower, and the Credit Agreement, the Canadian Notes and the
Canadian Grid Gold Acknowledgements have been duly executed and delivered by the
Canadian Borrower.
4. (a) The choice of the law of the State of New York, without
giving effect to the conflicts of laws rules thereof, as the governing law of
the Credit Agreement, the Canadian Notes, the Canadian Grid Gold
Acknowledgements and the Bankers' Acceptances is a valid and effective choice of
law under the laws of the Province of Ontario.
(b) In proceedings brought before a court of
competent jurisdiction in the Province of Ontario, the laws of the State of New
York would, to the extent specifically pleaded and proved with respect to the
Credit Agreement, the Canadian Notes, the Canadian Grid Gold Acknowledgements or
the Bankers' Acceptances as a fact by expert evidence, be recognized and applied
by such court to all issues which are to be determined in accordance with such
laws, except that in any such proceedings, such court (i) will apply those laws
of the Province of Ontario which it characterizes as procedural and will not
apply those laws of the State of New York as such court characterizes as
procedural; and (ii) will not apply those laws of the State of New York which a
court of the Province of Ontario would characterize as revenue, expropriatory,
penal or similar laws or the application of which would be inconsistent with
public policy, as such term is applied by such court.
VIII-A-3
(c) No provision of the Credit Agreement, the
Canadian Notes, the Canadian Grid Gold Acknowledgements or the Bankers'
Acceptances is inconsistent with public policy, as such term is applied by the
courts of the Province of Ontario.
(d) The submission in the Credit Agreement by the
Canadian Borrower to the
non-exclusive jurisdiction of the courts of the State of New York is binding and
enforceable against the Canadian Borrower.
5. None of the execution and delivery of the Credit Agreement
by the Canadian Borrower, the issuance of the Canadian Notes, the Canadian Grid
Gold Acknowledgements and the Bankers' Acceptances by the Canadian Borrower, the
consummation of the transactions contemplated by the Credit Agreement, or the
compliance with the terms and conditions thereof by the Canadian Borrower
conflicts with, results in a breach or a violation of, or constitutes a default
under, any of the terms, conditions or provisions of the Articles of
Incorporation or By-Laws of the Canadian Borrower, or any statute, rule or
regulation of the Province of Ontario or the federal government of Canada
applicable therein that is binding on the Canadian Borrower.
6. We have not been retained by the Canadian Borrower in
connection with any action, suit or proceeding pending or presently threatened
against or affecting the Canadian Borrower at law or in equity before any court,
arbitrator or administrative or governmental body.
7. No consent, approval, registration, declaration or filing
of the Province of Ontario or the federal government of Canada applicable
therein are required to be obtained or made by the Canadian Borrower in
connection with the execution, delivery and performance by the Canadian Borrower
or the enforceability against the Canadian Borrower of the Credit Agreement, the
Notes, the Grid Gold Acknowledgements or the Bankers' Acceptances.
8. In any bankruptcy proceeding under the Bankruptcy and
Insolvency Act (Canada), the obligation of payment of the Canadian Borrower
under the Credit Agreement, the Canadian Notes, the Canadian Grid Gold
Acknowledgement and the outstanding Bankers' Acceptances will rank at least pari
passu with the claims of all other creditors of the Canadian Borrower which are
not secured or preferred creditors of the Canadian Borrower within the meaning
of that statute or which are not otherwise entitled to priority by statute.
9. The Canadian Borrower is not entitled to claim immunity
from legal process of the enforcement of any judgement of a court of competent
jurisdiction, whether generally or in relation to any specific assets.
10. A final and conclusive judgement in personam granted by a
court of competent jurisdiction in the State of New York may be enforced in an
Ontario court by an action or counterclaim for the amount due under such
judgement, provided that:
VIII-A-4
(a) the judgement was obtained after proper service of process
under New York law in connection with the action in which the
jurisdiction was obtained;
(b) the New York court acted within its jurisdiction under New
York law;
(c) the judgement is final and conclusive, and no stay of
execution has been ordered by the New York law;
(d) the judgement is not impeachable as void or voidable or
otherwise ineffective under New York law;
(e) the judgement was not obtained by fraud or any manner contrary
to the rules of natural justice, the judgement and the
enforcement thereof are not inconsistent with public policy
(as such term is applied by the Ontario court);
(f) the judgement is for a fixed sum of money which is not to be
determined at a future time, and the enforcement of the
judgement in the Province of Ontario does not constitute,
directly or indirectly, the enforcement of laws characterized
by the applicable Ontario court as being of revenue,
expropriatory, penal, or public law nature;
(g) no new admissible evidence relevant to the action which was
the subject matter of the judgement is discovered or arises
prior to the enforcement of the judgement by the Ontario
court;
(h) the action to enforce the judgment is commenced against the
judgement debtor in the Ontario court within the applicable
limitation period; and
(i) the Ontario court may give judgement in Canadian currency only.
This opinion is being delivered upon the express instructions
of the Canadian Borrower to the Agents, Arranger and the Lenders and their
permitted assignees and participants and is solely for their benefit in
connection with the above transactions. This opinion may not be relied upon for
any other purpose, or relied upon by any other person, firm or corporation for
any purpose, without our prior written consent; provided, however, that each of
the Agents, Arranger and the Lenders and their permitted assignees and
participants may provide this opinion (i) to bank examiners and other regulatory
authorities should they so request or in connection with their normal
examinations, (ii) to its respective independent auditors and attorneys, (iii)
pursuant to order or legal process of any court or governmental agency or other
binding statutory requirement, (iv) in connection with any action to which it is
a party arising out of the transactions contemplated by the Credit Agreement, or
(v) to prospective assignees of, or participants in, all or any portion of its
VIII-A-5
Loans, Bankers' Acceptances, participations in Letters or Credit or Overall
Commitment under the Credit Agreement.
Yours very truly,
VIII-A-6
SCHEDULE I
VIII-A-7
EXHIBIT VIII-B
FORM OF OPINION OF MALLESONS STEPHEN JAQUES
July __, 1998
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
150 King Street West 16th Floor
Box 68
Toronto Ontario MSH 1J9 Canada
and
Chase Securities Australia Limited,
as Australian Administrative Agent
Level 35 AAP Center
259 George Street
Sydney NSW Australia 2000
and
Chase Securities Inc.,
as Arranger
270 Park Avenue
New York, NY 10017
and
The Chase Manhattan Bank,
as Administrative Agent
1 Chase Manhattan Plaza
New York, NY 10081
and the Lenders Listed on Schedule I Hereto
Re: Credit Agreement dated as of July , 1998 among Homestake Mining
Company, Homestake Mining Company of California, Homestake Canada Inc.,
Homestake Gold of Australia Limited, Plutonic Resources Limited, the
Lenders named therein, The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent, Chase Securities Australia Limited, as Australian
Administrative Agent, Chase Securities Inc., as Arranger, and The Chase
Manhattan Bank, as Administrative Agent (the "Credit Agreement")
VIII-B-1
Ladies and Gentlemen:
We have acted as Australian counsel to Homestake Gold of
Australia Limited ("HGAL") and Plutonic Resources Limited ("Plutonic"; and
collectively with HGAL, "Australian Borrowers") in connection with the execution
and delivery of the above-noted Credit Agreement and certain transactions
relating thereto. All terms used herein that are defined in the Credit Agreement
have the respective meanings specified in the Credit Agreement. This letter is
being delivered to you in satisfaction of the condition set forth in subsection
3.1E of the Credit Agreement and with the understanding that you are entering
into the Credit Agreement in reliance on the opinions expressed herein.
In our capacity as such counsel, we have examined the
originals, or copies identified to our satisfaction as being true copies, of
such records, documents or other instruments as in our judgment are necessary or
appropriate to enable us to render the opinions expressed below. These records,
documents and instruments include the following:
(a) The Certificates of Incorporation of the Australian
Borrowers;
(b) The Memoranda and Articles of Association of the
Australian Borrowers;
(c) Certain records of proceedings and actions of the Board
of Directors of the Australian Borrowers;
(d) The Credit Agreement and the Exhibits and Schedules
annexed thereto; and
(e) The Notes and Grid Gold Acknowledgements.
We have been furnished with, and have relied upon,
certificates of incumbency of the Australian Borrowers setting forth the
directors and officers of the Australian Borrowers authorized to sign documents
in connection with the Credit Agreement and their respective signatures.
We have conducted a search of the Australian Borrowers at the
Australian Securities Commission on [insert date] and relied on the correctness
of the results of that search.
We have assumed the genuineness and authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as copies, drafts or forms. In making our examination
of documents executed or to be executed by Persons other than the Australian
Borrowers we have assumed that such other Persons had or have the power to enter
into and perform all obligations thereunder (including without limitation the
legal capacity of all such Persons who are individuals) and have also assumed
the due authorization by all requisite action and execution and delivery of such
documents by such Persons and the validity and binding effect thereof in
relation to such Persons.
VIII-B-2
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are [solicitors]
qualified to carry on the practice of law in the Commonwealth of Australia and
we express no opinion as to any laws, or any matters governed by any laws, other
than the laws of the Commonwealth of Australia and its States and Territories.
On the basis of the foregoing, and in reliance thereon, and
subject to the limitations, qualifications and exceptions set forth below, we
are of the opinion that:
1. The Australian Borrowers are corporations duly incorporated
and validly existing under the laws of the Commonwealth of Australia and its
States and Territories and has all the powers of a natural person including all
requisite corporate power and authority (i) to own and lease their properties
and assets; (ii) to carry on its business; and (iii) to execute, deliver and
perform the Credit Agreement, the Notes and the Grid Gold Acknowledgements and
to carry out the transactions contemplated thereby.
2. The execution, delivery and performance of the Credit
Agreement and the issuance of the Notes and the Grid Gold Acknowledgements by
the Australian Borrowers have been duly authorized by all necessary corporate
action on the part of the Australian Borrowers and have been validly executed by
the Australian Borrowers.
3. The Credit Agreement, the Notes and the Grid Gold
Acknowledgements constitute valid and legally binding and enforceable
obligations of the Australian Borrowers in accordance with their respective
terms.
4. (a) The choice of the law of the State of New York, without
giving effect to the conflicts of laws rules thereof, as the governing law of
the Credit Agreement, the Notes and the Grid Gold Acknowledgements is a valid
and effective choice of law under the laws of the Commonwealth of Australia and
its States and Territories.
(b) In proceedings brought before a court of
competent jurisdiction in the Commonwealth of Australia, the laws of the State
of New York would, to the extent specifically pleaded and proved as a fact by
expert evidence, be recognized and applied by such court to all issues which,
under the conflicts of laws rules of the Commonwealth of Australia, are to be
determined in accordance with the proper or governing law of contract, except
that in any such proceedings, [such court (i) will apply those laws of the
Commonwealth of Australia which it characterizes as procedural and will not
apply those laws of the State of New York as such court characterizes as
procedural; (ii) will not apply those laws of the State of New York which a
court of the Commonwealth of Australia would characterize as revenue,
expropriatory, penal or similar laws or the application of which would be
inconsistent with public policy, as such term is applied by such court; and
(iii) may only give judgment in Australian dollars.]
VIII-B-3
(c) No provision of the Credit Agreement, the Notes
or the Grid Gold Acknowledgements is inconsistent with public policy, as such
term is applied by the courts of the Commonwealth of Australia.
(d) The submission in the Credit Agreement by the Australian
Borrowers to the non-exclusive jurisdiction of the courts of the State of New
York is legal, valid and binding.
5. None of the execution and delivery of the Credit Agreement
by the Australian Borrowers, the issuance of the Notes and the Grid Gold
Acknowledgements by the Australian Borrowers, the consummation of the
transactions contemplated by the Credit Agreement, or the compliance with the
terms and conditions thereof by the Australian Borrowers conflicts with, results
in a breach or a violation of, or constitutes a default under, any of the terms,
conditions or provisions of the Memoranda and Articles of Association of the
Australian Borrowers, or any statute, rule or regulation of the Commonwealth of
Australia and its States and Territories that is binding on the Australian
Borrower.
6. We have not been retained by the Australian Borrowers in
connection with any action, suit or proceeding pending or threatened against or
affecting the Australian Borrowers at law or in equity before any court,
arbitrator or administrative or governmental body.
7. No federal Australian governmental consents, approvals,
registrations, declarations or filings are required to be obtained or made by
the Australian Borrowers in connection with the execution, delivery or
performance of the Australian Borrowers' obligations under the Credit Agreement,
the Notes or the Grid Gold Acknowledgements in order to ensure the legality,
enforceability or admissibility of the documents or for any reason whatsoever.
8. No ad valorem stamp duty or similar documentary tax or duty
in or of any State or Territory of the Commonwealth of Australia will be
applicable with respect to the execution and delivery of the Credit Agreement,
the Notes or the Grid Gold Acknowledgements and the performance by the
Australian Borrowers of its obligations under those documents.
9. The monetary obligations of the Australian Borrowers under
the Credit Agreement, the Notes and the Grid Gold Acknowledgements rank pari
passu with all other unsecured, unsubordinated indebtedness of the Australian
Borrowers, other than obligations preferred by law.
10. Based only on searches referred to above, no winding up
orders have been made or resolutions passed for the winding up of the Australian
Borrowers.
VIII-B-4
11. The Australian Borrowers does not enjoy any immunity from
suit in the Courts of the Commonwealth of Australia or its States and
Territories and its assets are not exempt from execution.
This opinion is being delivered upon the express instructions
of the Australian Borrowers to the Agents, Arranger and the Lenders and their
permitted assignees and participants and is solely for their benefit in
connection with the above transactions. This opinion may not be relied upon for
any other purpose, or relied upon by any other person, firm or corporation for
any purpose, without our prior written consent; provided, however, that each of
the Agents, Arranger and the Lenders and their permitted assignees and
participants may provide this opinion (i) to bank examiners and other regulatory
authorities should they so request or in connection with their normal
examinations, (ii) to its respective independent auditors and attorneys, (iii)
pursuant to order or legal process of any court or governmental agency, (iv) in
connection with any action to which it is a party arising out of the
transactions contemplated by the Credit Agreement, or (v) to prospective
assignees of, or participants in, all or any portion of its Loans, Bankers'
Acceptances, participations in Letters or Credit or Overall Commitment under the
Credit Agreement.
Yours very truly,
VIII-B-5
SCHEDULE I
VIII-B-6
EXHIBIT IX
FORM OF OPINION OF O'MELVENY & MYERS LLP
[O'M&M Letterhead]
July
-----
1 9 9 8
149,000-004
The Chase Manhattan Bank of Canada,
as Canadian Administrative Agent
150 King Street West 16th Floor
Box 68
Toronto Ontario
MSH 1J9 Canada
and
Chase Securities Australia Limited,
as Australian Administrative Agent
Level 35 AAP Center
259 George Street
Sydney NSW Australia 2000
and
The Chase Manhattan Bank
as Administrative Agent
270 Park Avenue
New York, NY 10017
and
Deutsche Bank A.G.
as Documentation Agent
31 West 52nd Street
New York, NY 10019
IX-1
and the Lenders Listed
on Schedule I Hereto
Re: Credit Agreement dated as of July , 1998 among Homestake
Mining Company, Homestake Mining Company of California,
Homestake Canada Inc., Homestake Gold of Australia Limited,
Plutonic Resources Limited, the Lenders named therein, The
Chase Manhattan Bank of Canada, as Canadian Administrative
Agent, Chase Securities Australia Limited, as Australian
Administrative Agent, Chase Securities Inc., as Arranger,
Deutsche Bank A.G. as Documentation Agent and The Chase
Manhattan Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank, as
Administrative Agent (in such capacity, "Administrative Agent"), in connection
with the preparation and delivery of that certain Credit Agreement dated as of
July 14, 1998 (the "Credit Agreement") among Homestake Mining Company, a
Delaware corporation ("Company"), Homestake Mining Company of California, a
California corporation ("U.S. Borrower"), Homestake Canada Inc., an Ontario
corporation ("Canadian Borrower"), Homestake Gold of Australia Limited, a South
Australia corporation ("HGAL"), Plutonic Resources Limited, a New South Wales
corporation ("Plutonic"; and collectively with HGAL, "Australian Borrowers") the
financial institutions listed therein as the Lenders (collectively, "Lenders"),
the Agents named therein (including the Administrative Agent) and the Arranger
named therein and in connection with the preparation and delivery of certain
related documents.
We have participated in various conferences with
representatives of the Company, U.S. Borrower, Canadian Borrower, and Australian
Borrowers and with your representatives and Blake, Cassels & Graydon, Canadian
counsel for the Agents, and Mallesons Stephen Jaques, Australian counsel for the
Agents, during which the Credit Agreement and related matters have been
discussed, and we have also participated in the meeting held on the date hereof
incident to the occurrence of the Effective Date under the Credit Agreement.
We have reviewed the forms of the Credit Agreement and the
exhibits thereto, including the promissory notes delivered by U.S. Borrower,
Canadian Borrower, HGAL, and Plutonic, which forms are annexed thereto, and the
U.S. Grid Gold Acknowledgement, which form is annexed thereto, and the opinions
of Wayne Kirk, Esq., General Counsel of Company, Thelen, Reid & Priest, special
New York counsel to Company and Borrowers, Osler, Hoskin & Harcourt, special
Canadian counsel to Canadian Borrower, and Mallesons Stephen Jaques, special
Australian counsel to Australian Borrowers (collectively, the "Opinions"), and
the officers' certificates and other documents delivered on the Effective Date.
IX-2
We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals or copies and the due
authority of all persons executing the same, and we have relied as to factual
matters on the documents that we have reviewed.
Based on and subject to the foregoing, we are of the opinion
that the Credit Agreement constitutes the legally valid and binding obligation
of the Company and the Borrowers, enforceable against the Company and the
Borrowers in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally (including, without limitation, fraudulent
conveyance laws) and by general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
Our opinion in the preceding paragraph as to the
enforceability of the Credit Agreement is subject to:
(i) public policy considerations, statutes or
court decisions that may limit the rights of a
party to obtain indemnification against its
own gross negligence, willful misconduct or
unlawful conduct;
(ii) the unenforceability under certain
circumstances of broadly or vaguely stated
waivers or waivers of rights granted by law
where the waivers are against public policy or
prohibited by law;
(iii) the unenforceability under certain
circumstances of provisions appointing one
party as attorney-in-fact for an adverse
party;
(iv) the unenforceability under certain
circumstances of choice of law provisions; and
(v) the unenforceability under certain
circumstances of rights of set-off granted to
a Lender in respect of amounts owing by an
Affiliate of such Lender or with respect to
loans in which participations have been
granted purported to be provided for in the
Credit Agreement.
We express no opinion as to the effect of non-compliance by
you with any state or federal laws or regulations applicable to the transactions
contemplated by the Credit Agreement because of the nature of your business.
We advise you that provisions of the Credit Agreement which
provide for jurisdiction of the courts of New York may not be binding on the
courts in the forum(s) selected or excluded.
IX-3
In addition, although we have not independently considered all
of the matters covered by the Opinions to the extent necessary to enable us to
express the conclusions therein stated, we believe that the Opinions and the
officers' certificates and other documents delivered in connection with the
execution and delivery of, and as conditions to the effectiveness of, the Credit
Agreement are substantially responsive to the requirements of the Credit
Agreement.
The law covered by this opinion is limited to the present
federal law of the United States and the present law of the State of New York.
We express no opinion as to the laws of any other jurisdiction and no opinion
regarding the statutes, administrative decisions, rules or regulations of any
county, municipality or special political subdivision or other local authority.
We express no opinion concerning federal or state securities laws or
regulations.
This opinion is furnished by us as counsel for the
Administrative Agent and may be relied upon by you only in connection with the
Credit Agreement. It may not be used or relied upon by you for any other purpose
or by any other person for any purpose whatsoever without in each instance our
prior written consent. You may, however, deliver a copy of this opinion to
permitted assignees under the Credit Agreement in connection with such
assignment, and such assignees may rely on this opinion as if it were addressed
and had been delivered to them on the date hereof.
Respectfully submitted,
IX-4
EXHIBIT X-A
FORM OF ASSIGNMENT AND ACCEPTANCE
(CANADIAN LENDER)
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") is dated as
of ____________, ____ and entered into by and between [NAME OF LENDER]
("Assignor") and _____________________ ("Assignee").
RECITALS
WHEREAS, Assignor has entered into that certain Amended and
Restated Credit Agreement dated as of July , 1998 (said Credit Agreement, as it
may be amended, supplemented or otherwise modified from time to time, being the
"Credit Agreement", the terms defined therein and not otherwise defined herein
being used herein as therein defined) with Homestake Mining Company, a Delaware
corporation ("Company"), Homestake Mining Company of California, a California
corporation ("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation
("Canadian Borrower"), Homestake Gold of Australia Limited, a South Australia
corporation ("HGAL"), Plutonic Resources Limited, a New South Wales corporation
("Plutonic"; and collectively with HGAL, "Australian Borrowers"), the financial
institutions listed therein as Lenders ("Lenders"), The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders ("Canadian Administrative
Agent"), Chase Securities Australia Limited, as Australian Administrative Agent
for Lenders ("Australian Administrative Agent"), Chase Securities Inc., as
Arranger for Lenders ("Arranger"), Deutsche Bank A.G., as Documentation Agent
for Lenders ("Documentation Agent"), and The Chase Manhattan Bank, as
Administrative Agent for Lenders ("Administrative Agent");
WHEREAS, Assignor is a Canadian Lender under the Credit
Agreement and Assignee will, upon giving effect to this Agreement, likewise be a
Canadian Lender;
WHEREAS, Assignor has a Commitment under the Credit Agreement
pursuant to which Assignor is required (i) to make Loans to Canadian Borrower
pursuant to subsection 2.1A(i) of the Credit Agreement; (ii) to purchase
participations in Canadian Letters of Credit pursuant to subsection 2.7D of the
Credit Agreement (any such participations in any such Letters of Credit
outstanding as of the date hereof being the "Assignor Participations"); and
(iii) to create and accept Bankers' Acceptances pursuant to subsection 2.8A of
the Credit Agreement.
[WHEREAS, Assignor has issued certain outstanding Canadian
Letters of Credit (the "Assignor Letters of Credit") pursuant to subsection 3.3
of the Credit Agreement;][INSERT IF THE CHASE MANHATTAN BANK OF CANADA IS
X-A-1
ASSIGNOR AND CANADIAN LETTERS OF CREDIT ARE OUTSTANDING TO CANADIAN BORROWER]
WHEREAS, Assignor desires to assign to Assignee its rights and
obligations as a Canadian Lender under the Credit Agreement and the other Loan
Documents with respect to all or a portion of Assignor's Canadian Commitment,
including its commitment to create and accept Bankers' Acceptances, and any
Canadian Loans and Bankers' Acceptances or Assignor Participations outstanding
thereunder [and to sell to Assignee a participation in the Assignor Letters of
Credit (the "Assignee Participation") equal to the participation required to be
purchased therein pursuant to subsection 2.7D of the Credit Agreement], and
Assignee has agreed to assume the obligations of Assignor under the Loan
Documents to the extent of the rights and obligations so assigned [and to
purchase the Assignee Participation]; and
[WHEREAS, Assignor is also the [U.S./Australian] Lender for
its Lending Unit, and Assignor is concurrently herewith entering into an
Assignment and Acceptance with [Name of Assignee or Assignee's U.S./Australian
affiliate] (the "[U.S./Australian] Assignee") whereby Assignor is assigning to
the [U.S./Australian] Assignee that portion of its rights and obligations with
respect to its [U.S./Australian] Commitment which corresponds to the Percentage,
as defined below;]
[WHEREAS, Assignor's Lending Unit consists of the Assignor and
[Name of U.S./Australian Lender of Assignor's Lending Unit] ("Assignor's Lending
Unit Affiliate"), and Assignor's Lending Unit Affiliate is concurrently herewith
entering into an Assignment and Acceptance with [Name of Assignee or Assignee's
U.S./Australian affiliate] (the "[U.S./Australian] Assignee") whereby Assignor's
Lending Unit Affiliate is assigning to the [U.S./Australian] Assignee that
portion of its rights and obligations with respect to its [U.S./Australian]
Commitment which corresponds to the Percentage, as defined below;]
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
SECTION 1. Assignment and Assumption.
(a) Assignor hereby assigns to Assignee, effective upon the
receipt of the consideration set forth in Section 1(c) and Administrative
Agent's receipt of any processing and recordation fee required under subsection
10.1B of the Credit Agreement, without recourse, representation or warranty
(except as expressly set forth herein), an undivided _____% interest (the
"Percentage") in all of Assignor's rights and obligations as a Lender arising
under the Credit Agreement and the other Loan Documents relating to Assignor's
Canadian Commitment, including its commitment to create and accept Bankers'
Acceptances, and any Canadian Loans and Bankers' Acceptances and Assignor
Participations outstanding thereunder [and concurrently therewith sells to
Assignee, without recourse, representation or warranty (except as expressly set
forth herein), the Assignee Participation].
X-A-2
(b) Assignee hereby assumes from Assignor, and Assignor is
hereby expressly and absolutely released from, the Percentage of all of
Assignor's obligations arising under the Loan Documents relating to Assignor's
Canadian Commitment, including its commitment to create and accept Bankers'
Acceptances, and any Canadian Loans and Bankers' Acceptances and Assignor
Participations outstanding thereunder, including without limitation all such
obligations with respect to any Canadian Loans to be made and any participations
in Canadian Letters of Credit to be purchased, pursuant to the Credit Agreement
[, and Assignee hereby purchases from Assignor the Assignee Participation].
(c) Notwithstanding any provisions of this Agreement to the
contrary, each of the Assignor and Assignee hereby acknowledges and confirms its
understanding and agreement that the Canadian Commitments of the Canadian
Lenders under the Credit Agreement may from time to time be increased or
decreased by the Borrowers in accordance with subsection 2.1A of the Credit
Agreement through changes in the Canadian Allocation or the addition of Lenders
with Canadian Commitments, provided that the Canadian Allocation may not at any
time exceed the aggregate amount of the Overall Commitment of all Lending Units
then in effect. Each of the Assignor and Assignee acknowledges that the
Percentage interest in the Canadian Commitment being assigned and assumed
hereunder equals the Assignee's Canadian Lender Pro Rata Share, as set forth on
Annex II attached hereto, of the Overall Commitment as in effect on and after
the date upon which this Agreement becomes effective.
(d) Assignor hereby represents and warrants that as of the
effective date of this Agreement the respective amounts of unpaid principal,
accrued but unpaid interest, accrued but unpaid fees, and discounts and BA Fees
relating to Bankers' Acceptances, in each case with respect to the Percentage of
Assignor's rights under the Credit Agreement relating to Assignor's Canadian
Commitment and Canadian Allocation and any Canadian Loans and Bankers'
Acceptances and Assignor Participations outstanding thereunder [and with respect
to the Assignee Participation] are as set forth on Annex I attached hereto. In
consideration of Assignor's assignment, Assignee hereby agrees to pay to
Assignor, on the effective date of this Agreement, the amount(s) of
$_________________ [and Cdn.$_______________] in immediately available funds by
wire transfer to Assignor's office at ________________________________________.
(e) Assignor and Assignee hereby agree that Annex II attached
hereto sets forth the amount of the Canadian Commitment and Canadian Allocation,
any Canadian Loans and Bankers' Acceptances and participations by Assignee in
any Canadian Letters of Credit outstanding under the Commitment and the Canadian
Lender Pro Rata Share of Assignee after giving effect to the assignment and
assumption [and the sale and purchase] described above.
(f) Assignor and Assignee hereby agree that, upon giving
effect to the assignment and assumption [and the sale and purchase] described
above, Assignee shall be a party to the Credit Agreement as a Canadian Lender
thereunder, and shall have all of the rights and obligations under the Loan
Documents of, and shall be deemed to have made all of
X-A-3
the covenants and agreements contained in the Loan Documents made by, a Canadian
Lender having the Canadian Commitment and Canadian Allocation, the outstanding
Canadian Loans, the outstanding Bankers' Acceptances, the aggregate
participation in outstanding Canadian Letters of Credit and the Canadian Lender
Pro Rata Share of Assignee as reflected on Annex II attached hereto. Assignee
hereby acknowledges and agrees that the agreement set forth in this subsection
1(f) is expressly made for the benefit of Company, Borrowers, Canadian
Administrative Agent, Administrative Agent, Assignor and the other Lenders and
their respective successors and permitted assigns.
(g) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect [(A)] the
assignment by Assignor and the assumption by Assignee of the Percentage of
Assignor's rights and obligations with respect to Assignor's Canadian Commitment
and Canadian Allocation, including its commitment to create and accept Bankers'
Acceptances, and any Canadian Loans and Bankers' Acceptances and Assignor
Participations outstanding thereunder and all rights and obligations under the
Loan Documents with respect thereto [and (B) the sale by Assignor and the
purchase by Assignee of the Assignee Participation], (ii) any other assignments
by Assignor of a portion of its rights and obligations with respect to
Assignor's Canadian Commitment and Canadian Allocation, including its commitment
to create and accept Bankers' Acceptances, and any Canadian Loans and Bankers'
Acceptances or Assignor Participations outstanding thereunder [, and any other
sales by Assignor of participations in the Assignor Letters of Credit,] shall
have no effect on the Canadian Commitment and Canadian Allocation, including its
commitment to create and accept Bankers' Acceptances, the outstanding Canadian
Loans, the outstanding Bankers' Acceptances, or the aggregate participation in
outstanding Canadian Letters of Credit or Canadian Lender Pro Rata Share of
Assignee set forth on Annex II attached hereto, and (iii) from and after the
effective date of this Agreement, Administrative Agent shall make all payments
under the Credit Agreement in respect of the Percentage interest assigned hereby
[and the Assignee Participation] (including without limitation all payments of
principal and accrued but unpaid interest and commitment and letter of credit
fees with respect thereto) to Assignee, whether such amounts (in the case of
such interest and fees) have accrued prior to the effective date of this
Agreement or subsequent thereto.
SECTION 2. Certain Representations, Warranties and Agreements.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Percentage interest being assigned by it hereunder [and
of the Assignee Participation] and that such interest [is] [and the Assignee
Participation are] free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statement or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
X-A-4
by or on behalf of Company or any Borrower to Assignor or Assignee in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of the Company or any Borrower or any
other Person liable for the payment of any Obligations, nor shall Assignor be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Loan Documents or as to the use of the proceeds of the Loans or the use of
the Letters of Credit or the use of Bankers' Acceptances or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired its Percentage interest for its own account and
not with any present intention of selling all or any portion of such interest;
and that it has received, reviewed and approved copies of all Loan Documents.
(d) Assignee represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
each of the Borrowers and their respective Subsidiaries in connection with the
assignment evidenced by this Agreement and that it has made and shall continue
to make its own appraisal of the creditworthiness of the Company and the
Borrowers. Assignor shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Assignee or to provide Assignee with any credit or other
information with respect thereto, whether coming into its possession before the
making of the initial Loans or at any time or times thereafter, and Assignor
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to
the other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. Miscellaneous.
(a) Each party to this Agreement hereby agrees from time to
time, upon request of the other party hereto, to take such additional actions
and to execute and deliver such additional documents and instruments as such
other party may reasonably request to effect the transactions contemplated by,
and to carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
X-A-5
(c) Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, telecopied, telexed or sent by United
States mail or Canadian mail or courier service and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of telecopy
or telex, or four Business Days after depositing it in the United States mail
(or five Business Days after depositing it in the Canadian mail), registered or
certified, with postage prepaid and properly addressed; provided that notices to
Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature page hereof or, as to either party, such other
address as shall be designated by such party in a written notice delivered to
the other party hereto. In addition, the address of Assignee set forth below its
name on the signature page hereof shall serve as the initial notice address of
Assignee for purposes of subsection 10.11 of the Credit Agreement.
(d) This Agreement shall not effect an assignment of any
rights or obligations relating to the U.S. Commitment or Australian Commitment
of any Lender. Assignor and Assignee acknowledge and confirm (i) that
concurrently herewith U.S. Assignee is entering into an Assignment and
Acceptance with the U.S. Lender of Assignor's Lending Unit whereby U.S. Assignee
shall be assigned and assume all rights and obligations of Assignor's Lending
Unit with respect to that portion of such Lending Unit's U.S. Commitment which
corresponds to the Percentage hereunder, and (ii) that concurrently herewith
Australian Assignee is entering into an Assignment and Acceptance with the
Australian Lender of Assignor's Lending Unit, if any, whereby Australian
Assignee shall be assigned and assume all rights and obligations of Assignor's
Lending Unit, if any, with respect to that portion of such Lending Unit's
Australian Commitment, if any, which corresponds to the Percentage hereunder.
Assignee agrees that U.S. Assignee shall for all purposes be the U.S. Lender of
Assignee's Lending Unit and that Australian Assignee, if any, shall for all
purposes be the Australian Lender of Assignee's Lending Unit, if any, and that
the Commitment of such Lending Unit shall equal the Assignee's Pro Rata Share
(as set forth on Annex 1 annexed hereto) of the aggregate Overall Commitment of
all Lending Units as in effect at any time on and after the date this Amendment
becomes effective.
(e) The parties hereto acknowledge the provisions of
subsection 2.2F of the Credit Agreement relating to disclosure under the
Interest Act (Canada) and agree that the provisions thereof shall apply to the
disclosure and calculation of nominal and effective rates of interest payable
hereunder as if such provisions were set forth herein.
(f) In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
(g) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
X-A-6
(h) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
(i) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(j) This Agreement shall become effective upon the execution
of a counterpart hereof by each of Assignor and Assignee and the execution of a
counterpart hereof by Company and Borrowers (as evidence of their consent hereto
in accordance with subsection 10.1B(i) of the Credit Agreement) and
Administrative Agent (as evidence of its acceptance hereof in accordance with
subsection 10.1B(ii) of the Credit Agreement) and the receipt by Assignor,
Assignee, Canadian Administrative Agent and Administrative Agent of originals or
telecopies of such counterparts and authorization of delivery thereof.
(k) Assignee hereby appoints The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Securities Australia Limited, as
Australian Administrative Agent, Chase Securities Inc., as Arranger, Deutsche
Bank A.G., as Documentation Agent and The Chase Manhattan Bank, as
Administrative Agent, under the Credit Agreement and the other Loan Documents,
to exercise such powers as are specified in Section 9 of the Credit Agreement
and to be entitled to such protections and indemnities as are afforded
thereunder.
[(l) Assignee hereby agrees to deliver to Canadian Borrower
upon request such certificates, documents or other evidence as may be required
from time to time, properly completed and duly executed by Assignee, to
establish the basis for any applicable exemption from or a reduction of Taxes
with respect to any payment to Assignee of principal, interest, fees,
commissions, or any other amount payable under this Agreement, the Credit
Agreement or otherwise in respect of the Canadian Loans.] [INSERT IF ASSIGNEE IS
ORGANIZED UNDER THE LAWS OF ANY JURISDICTION OTHER THAN CANADA OR ANY PROVINCE
THEREOF OR IS NOT RESIDENT IN CANADA.]
(m) Each of the parties to this Agreement hereby waives its
rights to a jury trial of any claim or cause of action based upon or arising out
of this Agreement or any dealings between them relating to the transactions
contemplated by this Agreement.
[Remainder of page intentionally left blank]
X-A-7
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
Notice Address: Notice Address:
=========================== ===========================
- --------------------------- ---------------------------
Consented to in accordance with Accepted in accordance with
subsection 10.1B(i) of the Credit subsection 10.1B(ii) of the
Agreement Credit Agreement
HOMESTAKE MINING COMPANY THE CHASE MANHATTAN BANK,
as Administrative Agent
By: By:
Title: Title:
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By:
Title:
HOMESTAKE CANADA INC.
By:
Title:
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:
Title:
PLUTONIC RESOURCES LIMITED
By:
Title:
Receipt Acknowledged:
THE CHASE MANHATTAN BANK OF CANADA,
as Canadian Administrative Agent
By:
Title:
ANNEX I
AMOUNTS OUTSTANDING
Outstanding Principal Amount:
Loans:
Dollar Loans: $_________
Canadian Dollar Loans: $_________
Total: $_________
Accrued But Unpaid Interest: $_________
Accrued But Unpaid Fees: $_________
Total Principal, Interest and Fees: $_________
Outstanding Bankers' Acceptance Face Amount: $_________
Discount: $_________
BA Fees: $_________
ANNEX II
ASSIGNEE'S CANADIAN COMMITMENT, CANADIAN
ALLOCATION, OUTSTANDING CANADIAN LOANS,
AGGREGATE PARTICIPATION IN
OUTSTANDING CANADIAN LETTERS OF CREDIT AND
PRO RATA SHARE AFTER ASSIGNMENT
Canadian Commitment:
Current Canadian Allocation $_________
Aggregate Overall Commitment $_________
Canadian Lender Pro Rata Share _____%
Current Canadian
Commitment $_________
Outstanding Loans:
Dollar Loans $_________
Canadian Dollar Loans $_________
Outstanding Bankers' Acceptance Face Amount: $_________
Aggregate participation in outstanding Canadian Letters of Credit:
Dollar Letters of Credit $_________
Canadian Dollar Letters of Credit $_________
Pro Rata Share ______%
EXHIBIT X-B
FORM OF ASSIGNMENT AND ACCEPTANCE
(U.S. LENDER)
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") is dated as
of ____________, ____ and entered into by and between [NAME OF LENDER]
("Assignor") and _____________________ ("Assignee").
RECITALS
WHEREAS, Assignor has entered into that certain Amended and
Restated Credit Agreement dated as of July , 1998 (said Credit Agreement, as it
may be amended, supplemented or otherwise modified to the date hereof and as it
may hereafter be amended, supplemented or otherwise modified from time to time,
being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined) with Homestake Mining
Company, a Delaware corporation ("Company"), Homestake Mining Company of
California, a California corporation ("U.S. Borrower"), Homestake Canada Inc.,
an Ontario corporation ("Canadian Borrower"), Homestake Gold of Australia
Limited, a South Australia corporation ("HGAL"), Plutonic Resources Limited, a
New South Wales corporation ("Plutonic"; and collectively with HGAL, "Australian
Borrowers"), the financial institutions listed therein as Lenders ("Lenders"),
The Chase Manhattan Bank of Canada, as Canadian Administrative Agent for Lenders
("Canadian Administrative Agent"), Chase Securities Australia Limited, as
Australian Administrative Agent for Lenders ("Australian Administrative Agent"),
Chase Securities Inc., as Arranger for Lenders ("Arranger"), Deutsche Bank A.G.,
as Documentation Agent for Lenders ("Documentation Agent"), and The Chase
Manhattan Bank, as Administrative Agent for Lenders ("Administrative Agent");
WHEREAS, Assignor is a U.S. Lender under the Credit Agreement
and Assignee will, upon giving effect to this Agreement, likewise be a U.S.
Lender;
WHEREAS, Assignor has a Commitment under the Credit Agreement
pursuant to which Assignor is required (i) to make Loans to U.S. Borrower
pursuant to subsection 2.1A(iii) of the Credit Agreement; and (ii) to purchase
participations in U.S. Letters of Credit pursuant to subsection 2.7D of the
Credit Agreement (any such participations in any such Letters of Credit
outstanding as of the date hereof being the "Assignor Participations");
[WHEREAS, Assignor has issued certain outstanding U.S. Letters
of Credit (the "Assignor Letters of Credit") pursuant to subsection 3.3 of the
Credit Agreement;] [INSERT IF THE CHASE MANHATTAN BANK IS ASSIGNOR AND U.S.
LETTERS OF CREDIT ARE OUTSTANDING TO U.S. BORROWER]
X-B-1
WHEREAS, Assignor desires to assign to Assignee its rights and
obligations as a U.S. Lender under the Credit Agreement and the other Loan
Documents with respect to all or a portion of Assignor's U.S. Commitment and any
U.S. Loans or Assignor Participations outstanding thereunder [and to sell to
Assignee a participation in the Assignor Letters of Credit (the "Assignee
Participation") equal to the participation required to be purchased therein
pursuant to subsection 2.7D of the Credit Agreement], and Assignee has agreed to
assume the obligations of Assignor under the Loan Documents to the extent of the
rights and obligations so assigned [and to purchase the Assignee Participation];
and
[WHEREAS, Assignor is also the [Canadian/Australian] Lender
for its Lending Unit, and Assignor is, concurrently herewith entering into an
Assignment and Acceptance with [Name of Assignee or Assignee's
Canadian/Australian affiliate] (the "[Canadian/Australian] Assignee") whereby
Assignor is assigning to the [Canadian/Australian] Assignee that portion of its
rights and obligations with respect to its [Canadian/Australian] Commitment
which corresponds to the Percentage, as defined below;]
[WHEREAS, Assignor's Lending Unit consists of the Assignor and
[Name of Canadian/Australian Lender of Assignor's Lending Unit] ("Assignor's
Lending Unit Affiliate"), and Assignor's Lending Unit Affiliate is concurrently
herewith entering into an Assignment and Acceptance with [Name of Assignee or
Assignee's Canadian/Australian affiliate] (the "[Canadian/Australian] Assignee")
whereby Assignor's Lending Unit Affiliate is assigning to the
[Canadian/Australian] Assignee that portion of its rights and obligations with
respect to its [Canadian/Australian] Commitment which corresponds to the
Percentage, as defined below;]
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
SECTION 1. Assignment and Assumption.
(a) Assignor hereby assigns to Assignee, effective upon the
receipt of the consideration set forth in Section 1(c) and Administrative
Agent's receipt of any processing and recordation fee required under subsection
10.1B of the Credit Agreement, without recourse, representation or warranty
(except as expressly set forth herein), an undivided _____% interest (the
"Percentage") in all of Assignor's rights and obligations as a Lender arising
under the Credit Agreement and the other Loan Documents relating to Assignor's
U.S. Commitment and any U.S. Loans and Assignor Participations outstanding
thereunder [and concurrently therewith sells to Assignee, without recourse,
representation or warranty (except as expressly set forth herein), the Assignee
Participation].
(b) Assignee hereby assumes from Assignor, and Assignor is
hereby expressly and absolutely released from, the Percentage of all of
Assignor's obligations arising under the Loan Documents relating to Assignor's
U.S. Commitment and any U.S. Loans and Assignor Participations outstanding
thereunder, including without limitation all such obligations with respect to
any U.S. Loans to be made and any participations in U.S. Letters
X-B-2
of Credit to be purchased, pursuant to the Credit Agreement [, and Assignee
hereby purchases from Assignor the Assignee Participation].
(c) Notwithstanding any provisions of this Agreement to the
contrary, each of the Assignor and Assignee hereby acknowledges and confirms its
understanding and agreement that the U.S. Commitments of the U.S. Lenders under
the Credit Agreement may from time to time be increased or decreased by the
Borrowers in accordance with subsection 2.1A of the Credit Agreement through
changes in the U.S. Allocation, provided that the U.S. Allocation may not at any
time exceed the aggregate amount of the Overall Commitment of all Lending Units
then in effect. Each of the Assignor and Assignee acknowledges that the
Percentage interest in the U.S. Commitment being assigned and assumed hereunder
equals the Assignee's U.S. Lender Pro Rata Share, as set forth on Annex II
attached hereto, of the U.S. Allocation of the Overall Commitment as in effect
on and after the date upon which this Agreement becomes effective.
(d) Assignor hereby represents and warrants that as of the
effective date of this Agreement the respective amounts of unpaid principal,
accrued but unpaid interest and accrued but unpaid fees with respect to the
Percentage of Assignor's rights under the Credit Agreement relating to
Assignor's U.S. Commitment and U.S. Allocation and any U.S. Loans and Assignor
Participations outstanding thereunder [and with respect to the Assignee
Participation] are as set forth on Annex I attached hereto. In consideration of
Assignor assignment, Assignee hereby agrees to pay to Assignor, on the effective
date of this Agreement, the amount of $_________________ in immediately
available funds by wire transfer to Assignor's office at
- -----------------------------------------------------------.
(e) Assignor and Assignee hereby agree that Annex II attached
hereto sets forth the amount of the U.S. Commitment and U.S. Allocation, any
U.S. Loans and participations by Assignee in any U.S. Letters of Credit
outstanding under the Commitment and the U.S. Lender Pro Rata Share of Assignee
after giving effect to the assignment and assumption [and the sale and purchase]
described above.
(f) Assignor and Assignee hereby agree that, upon giving
effect to the assignment and assumption [and the sale and purchase] described
above, Assignee shall be a party to the Credit Agreement as a U.S. Lender
thereunder, and shall have all of the rights and obligations under the Loan
Documents of, and shall be deemed to have made all of the covenants and
agreements contained in the Loan Documents made by, a U.S. Lender having the
U.S. Commitment and U.S. Allocation, the outstanding U.S. Loans, the aggregate
participation in outstanding U.S. Letters of Credit and the U.S. Lender Pro Rata
Share of Assignee as reflected on Annex II attached hereto. Assignee hereby
acknowledges and agrees that the agreement set forth in this subsection 1(f) is
expressly made for the benefit of Company, Borrowers, Administrative Agent,
Assignor and the other Lenders and their respective successors and permitted
assigns.
(g) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect [(A)] the
assignment by Assignor
X-B-3
and the assumption by Assignee of the Percentage of Assignor's rights and
obligations with respect to Assignor's U.S. Commitment and U.S. Allocation and
any U.S. Loans and Assignor Participations outstanding thereunder and all rights
and obligations under the Loan Documents with respect thereto [and (B) the sale
by Assignor and the purchase by Assignee of the Assignee Participation], (ii)
any other assignments by Assignor of a portion of its rights and obligations
with respect to Assignor's U.S. Commitment and U.S. Allocation and any U.S.
Loans or Assignor Participations outstanding thereunder [, and any other sales
by Assignor of participations in the Assignor Letters of Credit,] shall have no
effect on U.S. Commitment, the outstanding U.S. Loans, the aggregate
participation in outstanding U.S. Letters of Credit or U.S. Lender Pro Rata
Share of Assignee set forth on Annex II attached hereto, and (iii) from and
after the effective date of this Agreement, Administrative Agent shall make all
payments under the Credit Agreement in respect of the Percentage interest
assigned hereby [and the Assignee Participation] (including without limitation
all payments of principal and accrued but unpaid interest and commitment and
letter of credit fees with respect thereto) to Assignee, whether such amounts
(in the case of such interest and fees) have accrued prior to the effective date
of this Agreement or subsequent thereto.
SECTION 2. Certain Representations, Warranties and Agreements.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Percentage interest being assigned by it hereunder [and
of the Assignee Participation] and that such interest [is] [and the Assignee
Participation are] free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statement or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
by or on behalf of Company or any Borrower to Assignor or Assignee in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of the Company or any Borrower or any
other Person liable for the payment of any Obligations, nor shall Assignor be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Loan Documents or as to the use of the proceeds of the Loans or the use of
the Letters of Credit or as to the existence or possible existence of any Event
of Default or Potential Event of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired its Percentage interest for its own account and
not with any present intention of selling all or any portion of such interest;
and that it has received, reviewed and approved copies of all Loan Documents.
(d) Assignee represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
each of the Borrowers
X-B-4
and their respective Subsidiaries in connection with the assignment evidenced by
this Agreement and that it has made and shall continue to make its own appraisal
of the creditworthiness of the Company and the Borrowers. Assignor shall not
have any duty or responsibility, either initially or on a continuing basis, to
make any such investigation or any such appraisal on behalf of Assignee or to
provide Assignee with any credit or other information with respect thereto,
whether coming into its possession before the making of the initial Loans or at
any time or times thereafter, and Assignor shall not have any responsibility
with respect to the accuracy of or the completeness of any information provided
to Assignee.
(e) Each party to this Agreement represents and warrants to
the other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. Miscellaneous.
(a) Each party to this Agreement hereby agrees from time to
time, upon request of the other party hereto, to take such additional actions
and to execute and deliver such additional documents and instruments as such
other party may reasonably request to effect the transactions contemplated by,
and to carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(c) Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, telecopied, telexed or sent by United
States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of telecopy or telex, or
four Business Days after depositing it in the United States mail, registered or
certified, with postage prepaid and properly addressed; provided that notices to
Administrative Agent shall not be effective until received. For the purposes
hereof, the address of each party hereto shall be as set forth under such
party's name on the signature page hereof or, as to either party, such other
address as shall be designated by such party in a written notice delivered to
the other party hereto. In addition, the address of Assignee set forth below its
name on the signature page hereof shall serve as the initial notice address of
Assignee for purposes of subsection 10.11 of the Credit Agreement.
(d) This Agreement shall not effect an assignment of any
rights or obligations relating to the Canadian Commitment or Australian
Commitment of any Lender. Assignor and Assignee acknowledge and confirm (i) that
concurrently herewith, Canadian Assignee is entering into an Assignment and
Acceptance with the Canadian Lender of
X-B-5
Assignor's Lending Unit whereby Canadian Assignee shall be assigned and assume
all rights and obligations of Assignor's Lending Unit with respect to that
portion of such Lending Unit's Canadian Commitment which corresponds to the
Percentage hereunder, and (ii) that concurrently herewith, Australian Assignee
is entering into an Assignment and Acceptance with the Australian Lender of
Assignor's Lending Unit, if any, whereby Australian Assignee shall be assigned
and assume all rights and obligations of Assignor's Lending Unit, if any, with
respect to that portion of such Lending Unit's Australian Commitment which
corresponds to the Percentage hereunder. Assignee agrees that Canadian Assignee,
if any, shall for all purposes be the Canadian Lender of Assignee's Lending
Unit, Australian Assignee shall for all purposes be the Australian Lender of
Assignee's Lending Unit, if any, and that the Commitment of such Lending Unit
shall equal the Assignee's Pro Rata Share (as set forth on Annex 1 annexed
hereto) of the aggregate Overall Commitment of all Lending Units as in effect at
any time on and after the date this Amendment becomes effective.
(e) In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
(f) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
(g) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
(h) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(i) This Agreement shall become effective upon the execution
of a counterpart hereof by each of Assignor and Assignee and the execution of a
counterpart hereof by Company and Borrowers (as evidence of their consent hereto
in accordance with subsection 10.1B(i) of the Credit Agreement) and
Administrative Agent (as evidence of its acceptance hereof in accordance with
subsection 10.1B(ii) of the Credit Agreement), and the receipt by Assignor,
Assignee and Administrative Agent of originals or telecopies of such
counterparts and authorization of delivery thereof.
(j) Assignee hereby appoints The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Securities Australia Limited, as
Australian Administrative Agent, Chase Securities Inc., as Arranger, Deutsche
Bank A.G., as Documentation Agent, and The Chase Manhattan Bank as
Administrative Agent, under the Credit Agreement and the other Loan Documents,
to exercise such powers as are specified in
X-B-6
Section 9 of the Credit Agreement and to be entitled to such protections and
indemnities as are afforded thereunder.
[(k) Assignee hereby agrees to deliver to U.S. Borrower such
certificates, documents or other evidence, properly and accurately completed and
duly executed by Assignee (including, without limitation, Internal Revenue
Service Form 1001 or Form 4224 or any other certificate or statement of
exemption required by Treasury Regulations Section 1.1441-4(a) or Section
1.1441-6(c) or any successor thereto) to establish that Assignee is not subject
to deduction or withholding of United States federal income tax under Section
1441 or 1442 of the Internal Revenue Code or otherwise (or under any comparable
provisions of any successor statute).] [INSERT IF ASSIGNEE IS ORGANIZED UNDER
THE LAWS OF ANY JURISDICTION OTHER THAN THE UNITED STATES OR ANY STATE THEREOF
OR IS NOT RESIDENT IN THE UNITED STATES.]
(l) Each of the parties to this Agreement hereby waives its
rights to a jury trial of any claim or cause of action based upon or arising out
of this Agreement or any dealings between them relating to the transactions
contemplated by this Agreement.
[Remainder of page intentionally left blank]
X-B-7
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
Notice Address: Notice Address:
=========================== ===========================
- --------------------------- ---------------------------
Consented to in accordance with Accepted in accordance with
subsection 10.1B(i) of subsection 10.1B(ii) of the
the Credit Agreement Credit Agreement
HOMESTAKE MINING COMPANY THE CHASE MANHATTAN BANK,
as Administrative Agent
By: By:
Title: Title:
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By:
Title:
HOMESTAKE CANADA INC.
By:
Title:
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:
Title:
PLUTONIC RESOURCES LIMITED
By:
Title:
ANNEX I
AMOUNTS OUTSTANDING
Outstanding Principal Amount:
Loans:
Dollar Loans: $_________
Gold Loans: _____Ounces
(interest to be paid in [Gold][Dollars
based on [a Price of Gold equal to
$____ per Ounce/Average daily value, in
Dollar Equivalents]]).
Total: $_________
Accrued But Unpaid Interest: $_________
Accrued But Unpaid Fees: $_________
Total Principal, Interest and Fees: $_________
ANNEX II
ASSIGNEE'S
U.S. COMMITMENT, U.S.
ALLOCATION, OUTSTANDING
U.S. LOANS, AGGREGATE PARTICIPATION
IN OUTSTANDING U.S. LETTERS OF CREDIT AND
PRO RATA SHARE AFTER ASSIGNMENT
U.S. Commitment:
Current U.S. Allocation $_________
Aggregate Overall Commitment $_________
U.S. Lender Pro Rata Share _____%
Current U.S. Commitment $_________
Outstanding Loans:
Dollar Loans $_________
Gold Loans ______Ounces
Aggregate participation in
outstanding U.S. Letters of Credit: $_________
Pro Rata Share ______%
EXHIBIT X-C
FORM OF ASSIGNMENT AND ACCEPTANCE
(AUSTRALIAN LENDER)
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") is dated as
of ____________, ____ and entered into by and between [NAME OF LENDER]
("Assignor") and _____________________ ("Assignee").
RECITALS
WHEREAS, Assignor has entered into that certain Amended and
Restated Credit Agreement dated as of July , 1998 (said Credit Agreement, as it
may be amended, supplemented or otherwise modified from time to time, being the
"Credit Agreement", the terms defined therein and not otherwise defined herein
being used herein as therein defined) with Homestake Mining Company, a Delaware
corporation ("Company"), Homestake Mining Company of California, a California
corporation ("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation
("Canadian Borrower"), Homestake Gold of Australia Limited, a South Australia
corporation ("HGAL"), Plutonic Resources Limited, a New South Wales corporation
("Plutonic"; and collectively with HGAL, "Australian Borrowers"), the financial
institutions listed therein as Lenders ("Lenders"), The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent for Lenders ("Canadian Administrative
Agent"), Chase Securities Australia Limited, as Australian Administrative Agent
for Lenders ("Australian Administrative Agent"), Chase Securities Inc., as
Arranger for Lenders ("Arranger"), Deutsche Bank A.G., as Documentation Agent
for Lenders ("Documentation Agent"), and The Chase Manhattan Bank, as
Administrative Agent for Lenders ("Administrative Agent");
WHEREAS, Assignor is an Australian Lender under the Credit
Agreement and Assignee will, upon giving effect to this Agreement, likewise be
an Australian Lender;
WHEREAS, Assignor has a Commitment under the Credit Agreement
pursuant to which Assignor is required (i) to make Loans to Australian Borrowers
pursuant to subsection 2.1A(ii) of the Credit Agreement; and (ii) to purchase
participations in Australian Letters of Credit pursuant to subsection 2.7D of
the Credit Agreement (any such participations in any such Letters of Credit
outstanding as of the date hereof being the "Assignor Participations");
WHEREAS, Assignor has issued certain outstanding Australian
Letters of Credit (the "Assignor Letters of Credit") pursuant to subsection 3.3
of the Credit Agreement; [INSERT IF THE CHASE MANHATTAN BANK IS ASSIGNOR AND
AUSTRALIAN LETTERS OF CREDIT ARE OUTSTANDING TO AUSTRALIAN BORROWERS];
X-C-1
WHEREAS, Assignor desires to assign to Assignee its rights and
obligations as an Australian Lender under the Credit Agreement and the other
Loan Documents with respect to all or a portion of Assignor's Australian
Commitment and any Australian Loans or Assignor Participations outstanding
thereunder [and to sell to Assignee a participation in the Assignor Letters of
Credit (the "Assignee Participation") equal to the participation required to be
purchased therein pursuant to subsection 2.7D of the Credit Agreement], and
Assignee has agreed to assume the obligations of Assignor under the Loan
Documents to the extent of the rights and obligations so assigned [and to
purchase the Assignee Participation]; and
[WHEREAS, Assignor is both the Australian Lender and the
[U.S./Canadian] Lender for its Lending Unit, and Assignor is, concurrently
herewith entering into an Assignment and Acceptance with [Name of Assignee or
Assignee's U.S./Canadian affiliate] (the "[U.S./Canadian] Assignee") whereby
Assignor is assigning to the [U.S./Canadian] Assignee that portion of its rights
and obligations with respect to its [U.S./Canadian] Commitment which corresponds
to the Percentage, as defined below;]
[WHEREAS, Assignor's Lending Unit consists of the Assignor and
[Name of U.S./Canadian Lender of Assignor's Lending Unit] ("Assignor's Lending
Unit Affiliate"), and Assignor's Lending Unit Affiliate is concurrently herewith
entering into an Assignment and Acceptance with [Name of Assignee or Assignee's
U.S./Canadian affiliate] (the "[U.S./Canadian] Assignee") whereby Assignor's
Lending Unit Affiliate is assigning to the [U.S./Canadian] Assignee that portion
of its rights and obligations with respect to its [U.S./Canadian] Commitment
which corresponds to the Percentage, as defined below;]
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
SECTION 1. Assignment and Assumption.
(a) Assignor hereby assigns to Assignee, effective upon the
receipt of the consideration set forth in Section 1(c) and Administrative
Agent's receipt of any processing and recordation fee required under subsection
10.1B of the Credit Agreement, without recourse, representation or warranty
(except as expressly set forth herein), an undivided _____% interest (the
"Percentage") in all of Assignor's rights and obligations as a Lender arising
under the Credit Agreement and the other Loan Documents relating to Assignor's
Australian Commitment and any Australian Loans and Assignor Participations
outstanding thereunder [and concurrently therewith sells to Assignee, without
recourse, representation or warranty (except as expressly set forth herein), the
Assignee Participation].
(b) Assignee hereby assumes from Assignor, and Assignor is
hereby expressly and absolutely released from, the Percentage of all of
Assignor's obligations arising under the Loan Documents relating to Assignor's
Australian Commitment and any Australian Loans and Assignor Participations
outstanding thereunder, including without limitation all such obligations with
respect to any Australian Loans to be made and any participations in Australian
Letters of Credit to be purchased, pursuant to the Credit Agreement [, and
Assignee hereby purchases from Assignor the Assignee Participation].
X-C-2
(c) Notwithstanding any provisions of this Agreement to the
contrary, each of the Assignor and Assignee hereby acknowledges and confirms its
understanding and agreement that the Australian Commitments of the Australian
Lenders under the Credit Agreement may from time to time be increased or
decreased by the Borrowers in accordance with subsection 2.1A of the Credit
Agreement through changes in the Australian Allocation or the addition of
Lenders with Australian Commitments, provided that the Australian Allocation may
not at any time exceed the aggregate amount of the Overall Commitment of all
Lending Units then in effect. Each of the Assignor and Assignee acknowledges
that the Percentage interest in the Australian Commitment being assigned and
assumed hereunder equals the Assignee's Australian Lender Pro Rata Share, as set
forth on Annex II attached hereto, of the Australian Allocation of the Overall
Commitment as in effect on and after the date upon which this Agreement becomes
effective.
(d) Assignor hereby represents and warrants that as of the
effective date of this Agreement the respective amounts of unpaid principal,
accrued but unpaid interest and accrued but unpaid fees with respect to the
Percentage of Assignor's rights under the Credit Agreement relating to
Assignor's Australian Commitment and Australian Allocation and any Australian
Loans and Assignor Participations outstanding thereunder [and with respect to
the Assignee Participation] are as set forth on Annex I attached hereto. In
consideration of Assignor's assignment, Assignee hereby agrees to pay to
Assignor, on the effective date of this Agreement, the amount of
$_________________ in immediately available funds by wire transfer to Assignor's
office at ___________________________________________________________.
(e) Assignor and Assignee hereby agree that Annex II attached
hereto sets forth the amount of the Australian Commitment and Australian
Allocation, any Australian Loans, and participations by Assignee in any
Australian Letters of Credit outstanding under the Commitment and the Australian
Lender Pro Rata Share of Assignee after giving effect to the assignment and
assumption [and the sale and purchase] described above.
(f) Assignor and Assignee hereby agree that, upon giving
effect to the assignment and assumption [and the sale and purchase] described
above, Assignee shall be a party to the Credit Agreement as an Australian Lender
thereunder, and shall have all of the rights and obligations under the Loan
Documents of, and shall be deemed to have made all of the covenants and
agreements contained in the Loan Documents made by, an Australian Lender having
the Australian Commitment and Australian Allocation, the outstanding Australian
Loans, the aggregate participation in outstanding Australian Letters of Credit
and the Australian Lender Pro Rata Share of Assignee as reflected on Annex II
attached hereto. Assignee hereby acknowledges and agrees that the agreement set
forth in this subsection 1(f) is expressly made for the benefit of Company,
Borrowers, Australian Administrative Agent, Administrative Agent, Assignor and
the other Lenders and their respective successors and permitted assigns.
(g) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect [(A)] the
assignment by Assignor
X-C-3
and the assumption by Assignee of the Percentage of Assignor's rights and
obligations with respect to Assignor's Australian Commitment and Australian
Allocation and any Australian Loans and Assignor Participations outstanding
thereunder and all rights and obligations under the Loan Documents with respect
thereto [and (B) the sale by Assignor and the purchase by Assignee of the
Assignee Participation], (ii) any other assignments by Assignor of a portion of
its rights and obligations with respect to Assignor's Australian Commitment and
Australian Allocation and any Australian Loans or Assignor Participations
outstanding thereunder [, and any other sales by Assignor of participations in
the Assignor Letters of Credit,] shall have no effect on Australian Commitment
and Australian Allocation, the outstanding Australian Loans, the aggregate
participation in outstanding Australian Letters of Credit or Australian Lender
Pro Rata Share of Assignee set forth on Annex II attached hereto, and (iii) from
and after the effective date of this Agreement, Administrative Agent shall make
all payments under the Credit Agreement in respect of the Percentage interest
assigned hereby [and the Assignee Participation] (including without limitation
all payments of principal and accrued but unpaid interest and commitment and
letter of credit fees with respect thereto) to Assignee, whether such amounts
(in the case of such interest and fees) have accrued prior to the effective date
of this Agreement or subsequent thereto.
SECTION 2. Certain Representations, Warranties and Agreements.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Percentage interest being assigned by it hereunder [and
of the Assignee Participation] and that such interest [is] [and the Assignee
Participation are] free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability, collectibility
or sufficiency of any of the Loan Documents or for any representations,
warranties, recitals or statements made therein or made in any written or oral
statement or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by Assignor to Assignee or
by or on behalf of Company or any Borrower to Assignor or Assignee in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of the Company or any Borrower or any
other Person liable for the payment of any Obligations, nor shall Assignor be
required to ascertain or inquire as to the performance or observance of any of
the terms, conditions, provisions, covenants or agreements contained in any of
the Loan Documents or as to the use of the proceeds of the Loans or the use of
the Letters of Credit or as to the existence or possible existence of any Event
of Default or Potential Event of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired its Percentage interest for its own account and
not with any present intention of selling all or any portion of such interest;
and that it has received, reviewed and approved copies of all Loan Documents.
X-C-4
(d) Assignee represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
each of the Borrowers and their respective Subsidiaries in connection with the
assignment evidenced by this Agreement and that it has made and shall continue
to make its own appraisal of the creditworthiness of the Company and the
Borrowers. Assignor shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Assignee or to provide Assignee with any credit or other
information with respect thereto, whether coming into its possession before the
making of the initial Loans or at any time or times thereafter, and Assignor
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to
the other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. Miscellaneous.
(a) Each party to this Agreement hereby agrees from time to
time, upon request of the other party hereto, to take such additional actions
and to execute and deliver such additional documents and instruments as such
other party may reasonably request to effect the transactions contemplated by,
and to carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(c) Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, telecopied, telexed or sent by United
States mail or Australian mail or courier service and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of
telecopy or telex, or four Business Days after depositing it in the United
States mail (or five Business Days after depositing it in the Australian mail),
registered or certified, with postage prepaid and properly addressed; provided
that notices to Administrative Agent shall not be effective until received. For
the purposes hereof, the address of each party hereto shall be as set forth
under such party's name on the signature page hereof or, as to either party,
such other address as shall be designated by such party in a written notice
delivered to the other party hereto. In addition, the address of Assignee set
forth below its name on the signature page hereof shall serve as the initial
notice address of Assignee for purposes of subsection 10.11 of the Credit
Agreement.
X-C-5
(d) This Agreement shall not effect an assignment of any
rights or obligations relating to the U.S. Commitment or Canadian Commitment of
any Lender. Assignor and Assignee acknowledge and confirm (i) that concurrently
herewith, U.S. Assignee is entering into an Assignment and Acceptance with the
U.S. Lender of Assignor's Lending Unit whereby U.S. Assignee shall be assigned
and assume all rights and obligations of Assignor's Lending Unit with respect to
that portion of such Lending Unit's U.S. Commitment which corresponds to the
Percentage hereunder, and (ii) that concurrently herewith, Canadian Assignee is
entering into an Assignment and Acceptance with the Canadian Lender of
Assignor's Lending Unit, if any, whereby Canadian Assignee shall be assigned and
assume all rights and obligations of Assignor's Lending Unit, if any, with
respect to that portion of such Lending Unit's Canadian Commitment, if any,
which corresponds to the Percentage hereunder. Assignee agrees that U.S.
Assignee shall for all purposes be the U.S. Lender of Assignee's Lending Unit,
Australian Assignee shall for all purposes be the Australian Lender of
Assignee's Lending Unit, if any, and that the Commitment of such Lending Unit
shall equal the Assignee's Pro Rata Share (as set forth on Annex 1 annexed
hereto) of the aggregate Overall Commitment of all Lending Units as in effect at
any time on and after the date this Amendment becomes effective.
(e) In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
(f) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
(g) This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
(h) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(i) This Agreement shall become effective upon the execution
of a counterpart hereof by each of Assignor and Assignee and the execution of a
counterpart hereof by Company and Borrowers (as evidence of their consent hereto
in accordance with subsection 10.1B(i) of the Credit Agreement) and
Administrative Agent (as evidence of its acceptance hereof in accordance with
subsection 10.1B(ii) of the Credit Agreement), and the receipt by Assignor,
Assignee, Australian Administrative Agent and Administrative Agent of originals
or telecopies of such counterparts and authorization of delivery thereof.
X-C-6
(j) Assignee hereby appoints The Chase Manhattan Bank of
Canada, as Canadian Administrative Agent, Chase Securities Australia Limited, as
Australian Administrative Agent, Chase Securities Inc., as Arranger, Deutsche
Bank A.G., as Documentation Agent, and The Chase Manhattan Bank as
Administrative Agent, under the Credit Agreement and the other Loan Documents,
to exercise such powers as are specified in Section 9 of the Credit Agreement
and to be entitled to such protections and indemnities as are afforded
thereunder.
[(k) Assignee hereby agrees to deliver to applicable
Australian Borrower such certificates, documents or other evidence, properly and
accurately completed and duly executed by Assignee, to establish the basis for
any applicable exemption from or a reduction of Taxes with respect to any
payment to Assignee or principal, interest, fees, commissions, or any other
amount payable under this Agreement, the Credit Agreement or otherwise in
respect of the Australian Loans.] [INSERT IF ASSIGNEE IS ORGANIZED UNDER THE
LAWS OF ANY JURISDICTION OTHER THAN AUSTRALIA OR ANY STATE THEREOF OR IS NOT
RESIDENT IN AUSTRALIA.]
(l) Each of the parties to this Agreement hereby waives its
rights to a jury trial of any claim or cause of action based upon or arising out
of this Agreement or any dealings between them relating to the transactions
contemplated by this Agreement.
[Remainder of page intentionally left blank]
X-C-7
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
Title: Title:
Notice Address: Notice Address:
=========================== ===========================
- --------------------------- ---------------------------
Consented to in accordance with Accepted in accordance with
subsection 10.1B(ii) of subsection 10.1B(i) of
the Credit Agreement the Credit Agreement
HOMESTAKE MINING COMPANY THE CHASE MANHATTAN BANK,
as Administrative Agent
By: By:
Title: Title:
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By:
Title:
HOMESTAKE CANADA INC.
By:
Title:
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:
Title:
PLUTONIC RESOURCES LIMITED
By:
Title:
Receipt Acknowledged:
CHASE SECURITIES AUSTRALIA LIMITED,
as Australian Administrative Agent
By:
Title:
ANNEX I
[NAME OF BORROWER]
AMOUNTS OUTSTANDING
Outstanding Principal Amount:
Loans:
Dollar Loans: $_________
Australian Dollar Loans:$_________
Total: $_________
Accrued But Unpaid Interest: $_________
Accrued But Unpaid Fees: $_________
Total Principal, Interest and Fees: $_________
ANNEX II
[NAME OF BORROWER]
ASSIGNEE'S
AUSTRALIAN COMMITMENT,
AUSTRALIAN ALLOCATION,
OUTSTANDING AUSTRALIAN LOANS,
AGGREGATE PARTICIPATION IN
OUTSTANDING AUSTRALIAN LETTERS OF CREDIT AND
PRO RATA SHARE AFTER ASSIGNMENT
Australian Commitment:
Current Australian Allocation $_________
Aggregate Overall Commitment $_________
Australian Lender Pro Rata Share _____%
Current Australian Commitment $_________
Outstanding Loans:
Dollar Loans $_________
Australian Dollar Loans $_________
Aggregate participation in
outstanding Australian Letters of Credit: $_________
outstanding U.S. Letters of Credit $_________
Pro Rata Share ______%
EXHIBIT XI
FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
Pursuant to that certain Amended and Restated Credit Agreement
dated as of July , 1998 (said Credit Agreement, as it may be amended,
supplemented or modified from time to time, being the "Credit Agreement", the
terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among Homestake Mining Company, a Delaware corporation
("Company"), Homestake Mining Company of California, a California corporation
("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation ("Canadian
Borrower"), Homestake Gold of Australia Limited, a South Australia corporation
("HGAL"), Plutonic Resources Limited, a New South Wales corporation ("Plutonic";
and collectively with HGAL, "Australian Borrowers"), the financial institutions
listed therein as Lenders ("Lenders"), The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent for Lenders ("Canadian Administrative Agent"),
Chase Securities Australia Limited, as Australian Administrative Agent for
Lenders ("Australian Administrative Agent"), Chase Securities Inc., as Arranger
for Lenders ("Arranger"), Deutsche Bank A.G., as Documentation Agent for Lenders
("Documentation Agent"), and The Chase Manhattan Bank, as Administrative Agent
for Lenders ("Administrative Agent"), this represents [U.S. Borrower's/Canadian
Borrower's/HGAL's/Plutonic's] request that [The Chase Manhattan Bank/The Chase
Manhattan Bank of Canada] issue a Standby Letter of Credit on ___________, ____
in the face amount of _________________ [Dollars/Canadian Dollars/Australian
Dollars] with an expiration date of ____________, ____. The beneficiary of such
proposed Letter of Credit shall be [Name of Beneficiary] and such beneficiary's
address is _________________________ ________________________________. Attached
hereto is the verbatim text of such proposed Letter of Credit and a precise
description of the proposed text of any certificate to be presented by such
beneficiary which, if presented by such beneficiary prior to the expiration date
of the Letter of Credit, would require [The Chase Manhattan Bank/The Chase
Manhattan Bank of Canada] to make payment under the Letter of Credit.
The undersigned officer, director, or Authorized Signor to the
best of his or her knowledge, and [U.S. Borrower/Canadian
Borrower/HGAL/Plutonic] certify that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and
complete in all material respects on and as of the date hereof
to the same extent as though made on and as of the date
hereof, except to the extent that changes in the facts and
conditions on which such representations and warranties were
based are required or permitted under the Credit Agreement;
(ii) No event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby
that would constitute an Event of Default or a Potential Event
of Default;
XI-1
(iii) The Company and each Borrower have performed in all
material respects all agreements and satisfied all conditions
which the Credit Agreement and other Loan Documents provide
shall be performed or satisfied by it on or before the date
hereof;
(iv) There is no pending or, to the knowledge of Company or
any Borrower, threatened, any action, suit, proceeding,
governmental investigation or arbitration against or affecting
Company or any of its Subsidiaries or any property of Company
or any of its Subsidiaries and there has occurred no
development in any such action, suit, proceeding, governmental
investigation or arbitration that, in either event, would
reasonably be expected to have a Material Adverse Effect,
unless disclosed to and consented to by Requisite Lenders; and
no injunction or other restraining order has been issued and
no hearing to cause an injunction or other restraining order
to be issued is pending or noticed with respect to any action,
suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as
a result of, the transactions contemplated by the Credit
Agreement or the making of Loans, the issuance of Letters of
Credit or the creation and purchase of Bankers' Acceptances
thereunder;
(v) No Company Change of Control has occurred; and
(vi) After giving effect to the issuance of the proposed
Letter of Credit, the Borrowers are in compliance with each of the clauses (a)
through (f) set forth in subsection 2.7A(i).
DATED: ____________________ [HOMESTAKE MINING COMPANY OF
CALIFORNIA/HOMESTAKE CANADA
INC./HOMESTAKE GOLD OF AUSTRALIA
LIMITED/PLUTONIC RESOURCES LIMITED]
By: __________________________
Title: ________________________
XI-2
EXHIBIT XII
FORM OF SUBORDINATION PROVISIONS
All obligations of [Name of Borrower] under this Promissory
Note ("Note") are hereby subordinated in right of payment to all "Obligations,"
as defined in that certain Amended and Restated Credit Agreement dated as of
July __, 1998 among Homestake Mining Company, a Delaware corporation, as
Guarantor, Homestake Mining Company of California, a California corporation, as
U.S. Borrower, and Homestake Canada Inc., an Ontario corporation, as Canadian
Borrower, Homestake Gold of Australia, an Australian corporation ("HGAL"),
Plutonic Resources Limited, a New South Wales corporation, ("Plutonic", and,
collectively with HGAL "Australian Borrowers"), the financial institutions named
therein as lenders, The Chase Manhattan Bank of Canada, as Canadian
Administration Agent, Chase Securities Australia Limited, as Australian
Administrative Agent, Chase Securities Inc., as Arranger, Deutsche Bank A.G., as
Documentation Agent for Lenders ("Documentation Agent"), and The Chase Manhattan
Bank, as Administrative Agent, as that Credit Agreement may be amended, modified
or supplemented from time to time, and any successors, replacements or renewals
thereof (the "Credit Agreement") on the terms of this paragraph.
Upon the occurrence and during the continuation of an "Event
of Default" (as defined in the Credit Agreement), no distribution of assets in
respect of any such Indebtedness (including any payment of principal, interest
or fees or any repurchase, redemption or setoff of such Note against other
indebtedness owing to [Name of Borrower] or payment received as a result of
other indebtedness being subordinated to such Indebtedness) may be made until
indefeasible payment in full in cash of all Obligations. If, notwithstanding the
preceding sentence, any such distribution of assets shall be collected or
received by [Name of Lender] after the occurrence and during the continuation of
an Event of Default, such distribution of assets shall be paid over to
"Administrative Agent" for the benefit of "Lenders" (each as defined in the
Credit Agreement) to he held as collateral and then or thereafter credited and
applied against the Obligations but without impairing or limiting in any manner
the liability of [Name of Borrower] under any provision of the Credit Agreement
or of [Name of Lender] under this paragraph. The foregoing notwithstanding, such
distribution may be made if the proceeds thereof are used to cure an Event of
Default or Potential Event of Default and No Event of Default or Potential Event
of Default will result from the making of such distribution.
[Name of Lender] shall duly and promptly take such action as
the Administrative Agent may reasonably request or permit the Administrative
Agent, upon the occurrence of an Event of Default, (i) to collect on the Note
for the account of the Lenders and to file appropriate claims or proofs of claim
in respect of the Note, (ii) to vote the claims represented by the Note in any
insolvency proceeding involving [Name of Borrower], (iii) to execute and deliver
to the Administrative Agent such powers of attorney, assignments, or other
instruments as it may reasonably request in order to enable it to enforce any
and all claims with respect to, and any security interests and other liens
securing payment of, the
XII-1
Note, and (iv) to collect and receive any and all payments or distributions
which may be payable or deliverable upon or with respect to the Note.
Effective this _____ day of __________, 19__.
[NAME OF BORROWER]
By: __________________________
Title: _______________________
[NAME OF LENDER]
By: __________________________
Title: _______________________
XII-2
EXHIBIT XIII
FORM OF NOTICE OF ALLOCATION
(To be delivered at least 14 days and no more than
60 days in advance and not to be effective prior to
December 1, 1998)
Pursuant to that certain Amended and Restated Credit
Agreement, dated as of July , 1998 (said Credit Agreement, as it may be amended,
modified or supplemented from time to time, the "Credit Agreement," the terms
defined therein and not otherwise defined herein being used herein as therein
defined), by and among Homestake Mining Company, a Delaware corporation, as
Guarantor, Homestake Mining Company of California, a California corporation
("U.S. Borrower"), Homestake Canada Inc., an Ontario corporation ("Canadian
Borrower"), Homestake Gold of Australia Limited, an Australia corporation
("HGAL"), Plutonic Resources Limited, a New South Wales corporation ("Plutonic",
and collectively with HGAL, "Australian Borrowers"), (Australian Borrowers,
together with U.S. Borrower and Canadian Borrower, "Borrowers"), the financial
institutions listed therein, as Lenders, The Chase Manhattan Bank of Canada, as
Canadian Administrative Agent, Chase Securities Australia Limited, as Australian
Administrative Agent, Chase Securities Inc., as Arranger, Deutsche Bank A.G., as
Documentation Agent for Lenders ("Documentation Agent"), and The Chase Manhattan
Bank, as Administrative Agent, this represents Borrowers' request that the
aggregate amount of the Overall Commitment, which is currently
$_________________, effective as of _______________ 1, _____ and upon acceptance
of Administrative Agent, be allocated among the Canadian Allocation, the
Australian Allocation and the U.S. Allocation as set forth in Schedule I
attached hereto, such allocations to remain in effect until such time as
Borrowers deliver a Notice of Allocation accepted by Administrative Agent in
accordance with the provisions of subsection 2.1A of the Credit Agreement for
the purpose of changing such allocations.
The undersigned officers and Borrowers hereby certify that,
after giving effect to the allocation requested hereby, (1) such allocation
maximizes, to the greatest extent possible, the Commitment of each Lender
available to each Borrower, (2) the aggregate Exposure of each Lending Unit
shall not exceed its commitment, (3) the Canadian Allocation for each Lending
Unit may not exceed its Canadian Commitment and may not be reduced to an amount
that is less than the outstanding Canadian Commitment Usage of such Lending
Unit, (4) the Australian Allocation for each Lending Unit may not exceed its
Australian Commitment and may not be reduced to an amount that is less than the
outstanding Australian Commitment Usage of such Lending Unit, and (5) the U.S.
Allocation for each Lending Unit may not exceed its U.S. Commitment and may not
be reduced to an amount that is less than the outstanding U.S. Commitment Usage
of such Lending Unit.
XIII-1
DATED: ____________________
HOMESTAKE MINING COMPANY
OF CALIFORNIA
By:_________________________
Name:_______________________
Title:______________________
HOMESTAKE CANADA INC.
By:_________________________
Name:_______________________
Title:______________________
HOMESTAKE GOLD OF AUSTRALIA
LIMITED
By:_________________________
Name:_______________________
Title:______________________
PLUTONIC RESOURCES LIMITED
By:_________________________
Name:_______________________
Title:______________________
ACCEPTED:
ADMINISTRATIVE AGENT
By: _______________________
XIII-2
Name: _____________________
Title: ______________________
XIII-3