EXHIBIT 10.2
HOMESTAKE MINING COMPANY
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
dated as of September 15, 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, a South Australian corporation , and PLUTONIC RESOURCES LIMITED, a New
South Wales corporation ("Australian Borrowers"), the financial institutions
listed on the signature pages hereof ("Lenders"), THE CHASE MANHATTAN BANK OF
CANADA ("Canadian Administrative Agent"), CHASE SECURITIES AUSTRALIA LIMITED
("Australian Administrative Agent"), CHASE SECURITIES INC. ("Arranger"), THE
CHASE MANHATTAN BANK ("Administrative Agent"), and DEUTSCHE BANK A.G., as
Documentation Agent ("Documentation Agent") and is made with reference to that
certain Amended and Restated Credit Agreement dated as of July 14, 1998 (the
"Credit Agreement"), by and among Company, U.S. Borrower, Canadian Borrower,
Australian Borrowers, Lenders, Canadian Administrative Agent, Australian
Administrative Agent, Arranger, Administrative Agent and Documentation Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, in connection with the potential acquisition by
Canadian Borrower of the shares of Prime not currently owned by Canadian
Borrower, U.S. Borrower desires to establish a Canadian holding company and
contribute to such holding company all of the outstanding shares of capital
stock of Canadian Borrower.
WHEREAS, Company and U.S. Borrower wish to make provisions for
the possible establishment of an Australian holding company to hold all of the
outstanding shares of capital stock of Australian Borrowers.
WHEREAS, Company and Borrowers have requested that Lenders
amend subsections 6.4, 6.9 and 7.11 of the Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
Section 1. AMENDMENT TO THE CREDIT AGREEMENT
1.1 Amendment to Subsection 6.4(i): Contingent Obligations.
Subsection 6.4(i) of the Credit Agreement is hereby amended by adding the
following text after the word "Agreement"
"or as permitted by subsection 6.9 of this Agreement":
1.2 Amendment to Subsection 6.9: Disposition of Material
Subsidiary Stock. Subsection 6.9 of the Credit Agreement is hereby amended by
adding the following text to the end of such subsection:
"Notwithstanding the foregoing: (i) U.S. Borrower may sell or
otherwise transfer all of the issued and outstanding capital
stock of Canadian Borrower owned by it to a Canadian holding
company ("Canadian Holding Company") which is wholly-owned by
Company and/or U.S. Borrower, provided that Canadian Holding
Company shall own at least 90% of the issued and outstanding
capital stock of Canadian Borrower (other than HCI
Exchangeable Stock) and provided that prior to such sale or
transfer Canadian Holding Company shall have first delivered
to Administrative Agent a guaranty of the Obligations of
Canadian Borrower satisfactory to Administrative Agent in
substantially the form of the provisions of Subsection 8.2 of
the Credit Agreement ("Canadian Holding Company Guaranty"), an
opinion of counsel in form and substance satisfactory to
Administrative Agent as to the validity and enforceability of
the Canadian Holding Company Guaranty, and such corporate
authorizations and other documents in form and substance
satisfactory to Administrative Agent as Administrative Agent
shall reasonably require, and (ii) Company and U.S. Borrower
may sell or otherwise transfer all of the issued and
outstanding capital stock of Australian Borrowers owned by
each of them to an Australian holding company ("Australian
Holding Company") which is wholly-owned by Company and/or U.S.
Borrower, provided that Australian Holding Company shall own
all of the issued and outstanding capital stock of Australian
Borrowers and provided that prior to such sale or other
transfer Australian Holding Company shall have first delivered
to Administrative Agent a guaranty of the Obligations of
Australian Borrowers satisfactory to Administrative Agent in
substantially the form of the provisions of Subsection 8.2 of
the Credit Agreement ("Australian Holding Company Guaranty"),
an opinion of counsel in form and substance satisfactory to
Administrative Agent as to the validity and enforceability of
the Australian Holding Company Guaranty, and such corporate
authorizations and other documents in form and substance
satisfactory to Administrative Agent as Administrative Agent
shall reasonably require."
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1.3 Amendment to Subsection 7.11. Change in Control of
Borrowers. Subsection 7.11 of the Credit Agreement is hereby
amended to read in its entirety as follows:
"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 or Canadian Holding Company 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 (collectively) or Australian
Holding Company shall fail to own all of the issued and
outstanding capital stock of Australian Borrowers; or"
Section 2. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Effective
Date"):
A. On or before the Effective Date, Company shall deliver to
Administrative Agent (with sufficient originally executed copies for each)
Lender copies of this Amendment, executed by Company and each Borrower.
B. On or before the Effective Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
Section 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company and each
Borrower represents and warrants to each Lender that the following statements
are true, correct and complete:
A. Corporate Power and Authority. Company and each Borrower
has all requisite corporate power and authority to enter into this Amendment and
to carry out the transactions contemplated by, and perform its obligations
under, the Credit Agreement as amended by this Amendment (the "Amended
Agreement").
B. Authorization of Agreements. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company and each
Borrower.
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C. No Conflict. The execution and delivery by Company and each
Borrower of this Amendment and by Canadian Holding Company and Australian
Holding Company of Canadian Holding Company Guaranty and Australian Holding
Company Guaranty, respectively, and the performance by Company and each Borrower
of the Amended Agreement and by Canadian Holding Company and Australian Holding
Company of Canadian Holding Company Guaranty and Australian Holding Company
Guaranty, respectively, do not and will not (i) violate any provision of any law
or any governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws or other
charter documents of Company or any of its Subsidiaries or any order, judgment
or decree of any court or other agency of government binding on Company or any
of its Subsidiaries, (ii) conflict with, result in a material breach of or
constitute (with due notice or lapse of time or both) a material default under
any Contractual Obligation of Company or any of its Subsidiaries, (iii) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of Company or any of its Subsidiaries (other than Liens created under
any of the Loan Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company or any of its
Subsidiaries.
D. Binding Obligation. This Amendment and the Amended
Agreement have been duly executed and delivered by Company and each of the
Borrowers and are the legally valid and binding obligations of Company and each
of the Borrowers, enforceable against Company and each of the Borrowers in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability. The Canadian Holding Company Guaranty, when executed and
delivered by Canadian Holding Company and the Australian Holding Company
Guaranty, when executed and delivered by Australian Holding Company, will
constitute the legally valid and binding obligation of such guarantors,
enforceable against such guarantors in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
E. Incorporation of Representations and Warranties From Credit
Agreement. The representations and warranties contained in Section 4 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Effective Date to the same extent as though made on
and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
F. Absence of Default. No event has occurred and is continuing
or will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
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Section 4. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and
the Other Loan Documents.
(i) On and after the Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to
the "Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Credit Agreement shall mean and
be a reference to the Credit Agreement as amended by this
Amendment.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of Administrative Agent
or any Lender under, the Credit Agreement or any of the other
Loan Documents.
B. Fees and Expenses. Company acknowledges that all costs,
fees and expenses as described in Section 10.2 of the Credit Agreement incurred
by Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
C. Headings. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
E. Counterparts; Effectiveness. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by Company, each Borrower
and Requisite Lenders and receipt by Company and Administrative Agent of written
or telephonic notification of such execution and authorization of delivery
thereof and compliance with the provisions of Section 2 to this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
Company:
HOMESTAKE MINING COMPANY
By:
Title:
U.S. Borrower:
HOMESTAKE MINING COMPANY OF CALIFORNIA
By:
Title:
Canadian Borrower:
HOMESTAKE CANADA INC.
By:
Title:
Australian Borrowers:
HOMESTAKE GOLD OF AUSTRALIA LIMITED
By:
Title:
S-1
PLUTONIC RESOURCES LIMITED:
By:
Title:
LENDERS:
THE CHASE MANHATTAN BANK, individually, as
a U.S. Lender, as an Issuing Lender, and as
Administrative Agent
By:
Title:
THE CHASE MANHATTAN BANK, as an Australian
Lender
By:
Title:
CHASE SECURITIES AUSTRALIA LIMITED, as
Australian Administrative Agent
By:
Title:
S-2
THE CHASE MANHATTAN BANK OF CANADA,
individually, as a Canadian Lender, as an
Issuing Lender, and as Canadian
Administrative Agent.
By:
Title:
AUSTRALIAN AND NEW ZEALAND BANKING GROUP,
as a U.S. Lender and an Australian Lender
By:
Title:
THE BANK OF NOVA SCOTIA, as a U.S. Lender
By:
Title:
THE BANK OF NOVA SCOTIA, as a Canadian
Lender
By:
Title:
BANKERS TRUST COMPANY, as a U.S. Lender
By:
Title:
S-3
BT BANK OF CANADA, as a Canadian Lender
By:
Title:
BANKERS TRUST AUSTRALIA LIMITED, as an
Australian Lender
By:
Title:
CIBC, INC. as a U.S. Lender
By:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, as a
Canadian Lender
By:
Title:
CITICORP USA, INC., as a U.S. Lender
By:
Title:
S-4
CITIBANK CANADA, as a Canadian Lender
By:
Title:
CITIBANK LIMITED, as an Australian Lender
By:
Title:
CITIBANK N.A., as an Australian Lender
By:
Title:
CREDIT SUISSE FIRST BOSTON, as a U.S.
Lender
By:
Title:
CREDIT SUISSE FIRST BOSTON CANADA, as a
Canadian Lender
By:
Title:
S-5
CREDIT SUISSE FIRST BOSTON, as an Australian
Lender
By:
Title:
DEUTSCHE BANK, AG, New York Branch and/or
Cayman Islands Branch, as a U.S. Lender
By:
Title:
DEUTSCHE BANK CANADA, as a Canadian Lender
By:
Title:
DEUTSCHE BANK, AG, ARBN 064 165 162, as an
Australian Lender
By:
Title:
DRESDNER BANK, AG NEW YORK AND GRAND CAYMAN
BRANCHES, as a U.S. Lender
By:
Title:
S-6
DRESDNER BANK, AG Australian Branch, as an
Australian Lender
By:
Title:
MELLON BANK, N.A., as a U.S. Lender
By:
Title:
MELLON BANK CANADA, as a Canadian Lender
By:
Title:
NM ROTHSCHILD & SONS LIMITED, as a U.S.
Lender
By:
Title:
NM ROTHSCHILD & SONS LIMITED, as a Canadian
Lender
By:
Title:
S-7
REPUBLIC NATIONAL BANK OF NEW YORK, as a
U.S. Lender
By:
Title:
REPUBLIC NATIONAL BANK OF NEW YORK (CANADA)
By:
Title:
REPUBLIC MASE AUSTRALIA LIMITED, as an
Australian Lender
By:
Title:
S-8
SOCIETE GENERALE, as a U.S. Lender
By:
Title:
SOCIETE GENERALE, as a Canadian Lender
By:
Title:
SOCIETE GENERALE AUSTRALIA LIMITED, as an
Australian Lender
By:
Title:
UBS AG, STAMFORD BRANCH, as a U.S. Lender
By:
Title:
S-9
UBS AG, STAMFORD BRANCH, as a Canadian
Lender
By:
Title:
UBS AG, STAMFORD BRANCH, as an Australian
Lender
By:
Title:
S-10