EXHIBIT 10.21
CONFORMED COPY
DATED AS OF DECEMBER 18 1997
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AMAX GOLD INC.
as the Borrower
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VARIOUS BANKS AND OTHER FINANCIAL INSTITUTIONS
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STANDARD BANK LONDON LIMITED
as the Agent for the Lenders
______________________________________
LOAN AGREEMENT
______________________________________
Ashurst Morris Crisp
Broadwalk House
5 Appold Street
London EC2A 2HA
Tel : 0171-638-1111
Fax : 0171-972-7990
MAS/627S00108/365465
THIS AGREEMENT is dated as of December 18 1997 (this "AGREEMENT").
BETWEEN:-
(1) AMAX GOLD INC., a Delaware corporation (the "BORROWER");
(2) The banking and/or financial institutions referred to on the signature
pages hereof (collectively, the "LENDERS"); and
(3) STANDARD BANK LONDON LIMITED, a bank organized under the laws of England,
in its capacity as the agent for the Lenders (in such capacity, the
"AGENT").
RECITALS
(A) The Borrower has requested that the Lenders provide commitments to the
Borrower to advance Loans for the purposes of , inter alia, refinancing
Indebtedness (such and other capitalized terms having the meanings
assigned to such terms in Section 1.1) of certain of its Subsidiaries,
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providing working capital requirements for those Subsidiaries and also for
general corporate purposes.
(B) The Lenders are willing, on the terms and conditions hereinafter set
forth, to extend commitments to make Loans to the Borrower denominated in
Dollars and to maintain and continue such Loans.
(C) Cyprus Amax Minerals Company, a Delaware corporation (the "GUARANTOR"),
owns 58.8% of the issued and outstanding share capital of the Borrower.
(D) To induce the Lenders to make the Loans to the Borrower, the Guarantor has
agreed to enter into the Guaranty Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy
whereof is hereby acknowledged by each party hereto, the parties hereto hereby
agree as follows:
1. DEFINITIONS
1.1 DEFINED TERMS
The following terms (whether or not underscored) when used in this
Agreement, including its preamble and recitals, shall have the following
meanings:
"ADVISORY CAPACITY" is defined in Section 9.6.
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"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls or is controlled by or under common control with
such Person (excluding any trustee under, or any committee with
responsibility for administering, any compensation, welfare or similar
plan). A Person shall be deemed to be "controlled by" any other Person if
such other Person possesses, directly or indirectly, power:
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(a) to vote ten percent (10%) or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners of such Person; or
(b) to direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"AGENT" is defined in the preamble.
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"AGREEMENT" is defined in the preamble.
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"APPLICABLE LAW" means, with respect to any Person or matter, any supranational,
national, federal, state, regional, tribal or local statute, law, rule, treaty,
convention, regulation, order, decree, directive, consent decree, determination
or other requirement (whether or not having the force of law but, if not having
the force of law, the compliance with which statute, etc would be prudent for a
Person conducting a similar business) relating to such Person or matter and,
where applicable, any interpretation thereof by any Governmental Agency having
jurisdiction with respect thereto or charged with the administration or
interpretation thereof.
"APPLICABLE MARGIN" means three quarters of one per cent (0.75%) per annum.
"APPROVAL" means an approval, authorization, license, permit, consent, filing
or registration by or with any Governmental Agency or other Person.
"ASSIGNEE LENDER" is defined in Section 10.11.1.
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"ASSIGNOR LENDER" is defined in Section 10.11.1.
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"AUTHORIZED REPRESENTATIVE" means, relative to either Obligor, those of its
officers whose signatures and incumbency shall have been certified to the Agent
pursuant to Section 5.1.
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"BANKRUPTCY CODE" means Chapter 11 of 11 U.S.C. Sections 101 -133.
"BORROWER" is defined in the preamble.
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"BORROWING DATE" means the Business Day on which the Loans are to be made
pursuant to Section 2.2.
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"BORROWING REQUEST" means the loan request and certificate duly executed by an
Authorized Representative of the Borrower, substantially in the form of Exhibit
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A attached hereto.
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"BUSINESS DAY" means:
(a) any day which is not a Saturday, Sunday, legal holiday or any other
day on which banks are authorized or required to be closed in
London, England or New York, New York; and/or
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(b) relative to the making, continuation, repayment or prepayment of
any Loan or the calculation of the LIBO Rate, any day on which
dealings in Dollars are carried on in the London interbank market.
"CAPITALIZED LEASE LIABILITIES" means all monetary obligations of any Person
under any leasing or similar arrangement which would be classified as
capitalised leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the capitalized amount
thereof, and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a penalty.
"CODE" means the Internal Revenue Code of 1986.
"COMMITMENT" means, relative to any Lender, such Lender's obligation to make
its Loan pursuant to the terms and subject to the conditions of this Agreement.
"COMMITMENT AMOUNT" means (a) in relation to any Lender party hereto on the
Effective Date, the amount set forth opposite its name on the signature pages
hereto as the same may be reduced pursuant to this Agreement (including Section
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2.3) and (b) in relation to an Assignee Lender which becomes a Lender subsequent
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to the Effective Date, the amount (if any) assumed from the Assignor Lender
pursuant to the Lender Assignment Agreement by which such Assignee Lender became
party to this Agreement, in each case as such amount may be adjusted pursuant to
any other Lender Assignment Agreement to which such Lender or Assignee Lender,
as the case may be, is a party.
"COMMITMENT TERMINATION DATE" means December 31, 1997 or, if earlier, the date
on which either of the following events shall occur:
(a) the termination of the Commitments pursuant to Section 8.2 or 8.3; or
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(b) the Borrowing Date.
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by which
any Person guarantees, endorses or otherwise becomes or is contingently liable
upon (by direct or indirect agreement, contingent or otherwise, to provide funds
for payment, to supply funds to, or otherwise to invest in, a debtor, or
otherwise to assure a creditor against loss in respect of) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"CONTRACTUAL OBLIGATION" means, relative to any Person, any provision of any
security issued by such Person or of any instrument or undertaking to which such
Person is a party or by which it or any of its property is bound.
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"CONTROLLED GROUP" means relative to the Borrower, all members of a controlled
group of corporations and all members of a controlled group of trades or
businesses (whether or not incorporated) under common control which, together
with the Borrower, are treated as a single employer under Section 414(b) or
Section 414(c) of the Code or Section 4001 of ERISA.
"DEFAULT" means any Event of Default or any condition or event which, after
notice, lapse of time, the making of any required determination or any
combination of the foregoing, would constitute an event of default.
"DOLLAR" and the sign "$" mean lawful money of the United States of America.
"EFFECTIVE DATE" is defined in Section 10.8.
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"ENFORCEMENT EVENT" shall mean either (a) the occurrence of any Insolvency
Default or (b) the acceleration of all or any portion of the outstanding
principal amount of the Loans and/or other Obligations pursuant to Section 8.2
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or 8.3 as a result of the occurrence of any Event of Default.
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"ENVIRONMENTAL LAW" means any Applicable Law relating to or imposing liability
or standards of conduct concerning the environment including laws relating to
reclamation of land and waterways and laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment
(including ambient air, surface water, ground water, land surface or subsurface
strata) or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes.
"EVENT OF DEFAULT" is defined in Section 8.1.
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"FINAL MATURITY DATE" means December 22, 2002.
"FISCAL QUARTER" means any quarter of a Fiscal Year ending on March 31, June
30, September 30 or December 31.
"FISCAL YEAR" means, with respect to either Obligor, any period of twelve
consecutive calendar months ending on December 31.
"F.R.S. BOARD" means the Board of Governors of the U.S. Federal Reserve
System.
"GAAP" is defined in Section 1.4.
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"GOVERNMENTAL AGENCY" means any supranational, national, federal, state,
regional, tribal or local government or governmental department or other entity
charged with the administration, interpretation or enforcement of any Applicable
Law.
"GUARANTOR" is defined in Recital (C).
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"GUARANTY AGREEMENT" means the Guaranty Agreement, between the Guarantor and
the Agent, substantially in the form of Exhibit E attached hereto.
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"HAZARDOUS MATERIAL" means any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material, substance or waste within the meaning of
any Environmental Law.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of
such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements, options or
arrangements designed to protect such Person against fluctuations in interest
rates, currency exchange rates or metals prices.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or report of any
independent certified public accountant or any independent chartered accountant
as to any financial statement of either Obligor, any qualification or exception
to such opinion or report:
(a) which is of a "going concern" or similar nature;
(b) which relates to any limited scope of examination of material matters
relevant to such financial statement; or
which relates to the treatment or classification of any item in such financial
statement.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or borrowed precious
metals (including in the case of such obligations, all notes payable
and drafts accepted representing extensions of credit) and all
obligations evidenced by bonds, debentures, notes, or other similar
instruments on which interest charges are customarily paid;
(b) all obligations, contingent or otherwise, relative to the face amount
of all letters of credit, whether or not drawn, and banker's
acceptances and similar instruments, in each such case issued for the
account of such Person;
(c) all obligations of such Person as lessee under leases which have been
or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) net payment liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse; and
(f) all Contingent Liabilities of such Person in respect of any of the
foregoing items of Indebtedness of any other Person.
"INDEMNIFIED LIABILITIES" is defined in Section 10.4.
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"INDEMNIFIED PARTIES" is defined in Section 10.4.
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"INSOLVENCY DEFAULT" means any condition or event which, after notice, lapse
of time, the making of any required determination or any combination of the
following, would constitute an Event of Default of the nature referred to in
Section 8.1.6.
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"INTEREST PERIOD" means, relative to the Loan:
(a) initially, the period from the Borrowing Date to the day which
numerically corresponds to the date one, three or six months thereafter
(or such other date as agreed between all the Lenders and the Borrower
and, subject to the availability of funds for such period to each
Lender) as the Borrower may irrevocably select in the Borrowing Request
delivered pursuant to Section 2.2; and
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(b) thereafter, each period from the last day of the immediately preceding
Interest Period applicable to such Loan to the day which numerically
corresponds to such date one, three or six months thereafter (or such
other date as may be agreed between all the Lenders and the Borrower
and subject to clauses (d) and (e)) as the Borrower may irrevocably
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select in the Interest Period Notice delivered pursuant to Section 2.4;
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provided, however, that:
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(c) absent the timely delivery of an Interest Period Notice, the Borrower
shall be deemed to have selected that the Loan be continued for an
Interest Period of one month's or such other duration as shall be
required in order to comply with the other provisions of this
Agreement;
(d) if any Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next following
Business Day, unless such Business Day occurs in the next following
calendar month, in which case such Interest Period shall end on the
immediately preceding Business Day;
(e) the Borrower shall not be permitted to select, and there shall not be
in effect, any Interest Period that would end later than the Final
Maturity Date; and
(f) the Agent shall be able to select Interest Periods satisfactory to it
pursuant to Section 3.2.2 or after any Enforcement Event.
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"INTEREST PERIOD NOTICE" means a notice of continuation and certificate duly
executed by an Authorized Representative of the Borrower, substantially in the
form of Exhibit B attached hereto.
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"LENDER ASSIGNMENT AGREEMENT" means an assignment agreement, duly executed by
an Assignor Lender and an Assignee Lender, substantially in the form of Exhibit
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C attached hereto.
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"LENDER PARTIES" means, collectively, the Agent and the Lenders.
"LENDERS" is defined in the preamble.
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"LENDING OFFICE" means (a) with respect to each Lender, the office of such
Lender designated as such below its signature hereto or such other office of
such Lender as may be designated from time to time by notice from such Lender to
the Agent and the Borrower, and (b) with respect to the Agent, the office of the
Agent designated as such below its signature hereto or such other office of the
Agent as may be designated from time to time by notice to the Borrower and each
Lender.
"LIBO RATE" means, relative to any Interest Period, the offered rate of
interest per annum which appears on Telerate Page 3750 (or such other page or
service in replacement thereof as may be utilised by banks generally from time
to time for the purpose of displaying London interbank offered rates for
deposits denominated in Dollars) as at 11:00 a.m. (London time) for the number
of months (or different period) comprising such Interest Period, calculated at
the date which is two Business Days prior to the first day of such Interest
Period; provided, however, that in the event that no such display rate is
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available for Dollars at such time, the Agent will request the principal London
office of each Lender to provide the Agent with its quotation for offers of
Dollar deposits to leading banks in the London interbank market for such period
and in an amount comparable to the principal amount of such Loan, and the "LIBO
RATE" shall equal the average (rounded upwards to the nearest four decimal
places) of such quoted rates.
"LIEN" means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against
or interest in property to secure payment of a debt or performance of an
obligation or other priority or preferential arrangement of any kind or nature
whatsoever.
"LOAN" is defined in Section 2.1(a).
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"LOAN DOCUMENT" means any of this Agreement, the Guaranty Agreement and each
other instrument executed by the Borrower evidencing any obligation (monetary or
otherwise) to any Lender Party in connection with and pursuant to this
Agreement.
"MATERIALLY ADVERSE EFFECT" means, with respect to the Borrower, an effect,
resulting from any occurrence of whatever nature (including any adverse
determination in any labor controversy, litigation, arbitration or governmental
or administrative investigation or proceeding), which is materially adverse, or
is or would be reasonably likely to be materially adverse, to the ability of the
Borrower to make any payment (for principal, interest, fees or otherwise) or
perform any other material obligation required under any Loan Document or in
respect of its consolidated financial condition, business, operations, assets or
prospects.
"OBLIGATIONS" means all obligations of the Borrower's payment and performance
obligations (monetary or otherwise) arising under or in connection with this
Agreement and each other Loan Document to which it is a party.
"OBLIGORS" means, collectively, the Borrower and the Guarantor.
"OECD" means the Organization for Economic Cooperation and Development.
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"ORGANIC DOCUMENT" means with respect to either Obligor, its certificate of
incorporation and its by-laws together with all shareholder agreements, voting
trusts, and similar arrangements applicable to any of its authorised shares of
capital stock or other equity interests.
"OTHER DIVISIONS" is defined in Section 9.6.
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"PARTICIPANT" is defined in Section 10.11.2.
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"PENSION PLAN" means a "pension plan" as such term is defined in Section 3(2)
of ERISA which is subject to Title IV of ERISA (other than a multi-employer plan
as defined in Section 4001(a)(3) of ERISA), and to which the Borrower or any
corporation, trade or business that is, along with the Borrower, a member of a
Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under Section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender and at any time, (a) if any Loans
are outstanding, the ratio (expressed as a percentage) of (i) the principal
amount of such Lender's Loans at such time to (ii) the principal amount of all
the Lenders' Loans at such time or (b) if no Loans are outstanding, the ratio
(expressed as a percentage) of (i) such Lender's Commitment Amount at such time
to (ii) the Total Commitment Amount at such time.
"PERSON" means any natural person, corporation, partnership firm, association,
trust, government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"PROCESS AGENT" is defined in Section 10.12.
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"PROCESS AGENT ACCEPTANCE" means a letter from the Process Agent to the Agent,
substantially in the form of Exhibit D attached hereto.
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"REGULATORY CHANGE" means the occurrence after the Effective Date of any change
in or abrogation of, or introduction, adoption, effectiveness or phase-in of
any:
(a) statute, law, rule or regulation applicable to any Lender Party, or
(b) guideline, interpretation, directive, consent decree, administrative
order, request or determination (whether or not having the force of
law) applicable to such Lender Party of any court, central bank or
governmental or regulatory authority charged with the interpretation or
administration of any statute, law, rule or regulation referred to in
clause (a) or of any fiscal, monetary or other authority having
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jurisdiction over such Lender Party,
or any interpretation or reinterpretation of any item or matter referred to in
clause (a) or (b) by any Person with authority in connection with such
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interpretation or reinterpretation.
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"REQUIRED LENDERS" means, at any time, Lenders having, in the aggregate, a
Percentage of more than sixty six and two thirds.
"REQUIREMENT OF LAW" means, as to any Person, its Organic Documents and
any Applicable Law or Contractual Obligation binding on or applying to
such Per son.
"RESTRUCTURING AGREEMENT" means the Restructuring Agreement dated as of
December 18/th/ 1997, between (1) Compania Minera Maricunga, (2) Amax Gold
Refugio, Inc. and Bema Gold (Bermuda) Limited, (3) the Borrower and Bema
Gold Corporation, (4) AGI Chile Credit Corp., Inc., (5) Minera Bema Gold
(Chile) Limitada, (6) Barclays Bank PLC and (7) N M Rothschild & Sons
Limited.
"SEC" means the United States Securities and Exchange Commission.
"STANDARD BANK" is defined in the preamble.
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"SUBSIDIARY" means, with respect to any Person, any corporation at least a
majority or more of the outstanding shares of capital stock of which
having ordinary voting power to elect a majority of the board of directors
of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency) is at the time owned by such
Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person. For the avoidance of
doubt, each of Compania Minera Maricunga, a company organized under the
laws of Chile and Omolon Gold Mining Company, a company organized under
the laws of Russia, shall be considered Subsidiaries of the Borrower.
"TAX CREDIT" is defined in Section 4.7(b).
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"TAX PAYMENT" is defined in Section 4.7(b).
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"TAXES" is defined in Section 4.6(a).
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"TOTAL COMMITMENT AMOUNT" means, at any time, subject to the terms and
conditions of this Agreement, the excess, if any, of (a) $40,000,000, less
(b) any reduction of the Total Commitment Amount effected pursuant to
Section 2.3.
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"WELFARE PLAN" means a "welfare plan" as such term is defined in Section
3(1) of ERISA.
1.2 USE OF DEFINED TERMS
Unless otherwise defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings when used
in the Guaranty Agreement and other Loan Document and each notice and other
communication delivered from time to time in connection with this Agreement
or any other Loan Document.
1.3 CROSS-REFERENCES
Unless otherwise specified, references in this Agreement and in each other
Loan Document to any Article or Section are references to such Article or
Section of this Agreement or such other
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Loan Document, as the case may be, and unless otherwise specified,
references in any Article, Section or definition to any clause are
references to such clause of such Article, Section or definition.
1.4 ACCOUNTING AND FINANCIAL DETERMINATIONS
All accounting terms used herein or in any other Loan Document shall be
interpreted, all accounting determinations and computations hereunder or
thereunder shall be made, and all financial statements required to be
delivered hereunder or thereunder shall be prepared in accordance with,
generally accepted accounting principles in the United States ("GAAP") as
in effect from time to time.
1.5 GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS, ETC.
Whenever the delivery of a certificate is a condition precedent to the
taking of any action by any Lender Party hereunder, the truth and accuracy
of the facts and the diligent and good faith determination of the opinions
stated in such certificate shall in each case be conditions precedent to
the right of the Borrower to have such action taken, and any certificate
executed by the Borrower shall be deemed to represent and warrant that the
facts stated in such certificate are true and accurate.
1.6 INTERPRETATION
Unless a clear contrary intention appears, this Agreement and each other
Loan Document shall be construed and interpreted in accordance with the
provisions set forth below:
(a) the singular number includes the plural number and vice versa;
(b) reference to any Person includes such Person's successors, substitutes
and assigns but, if applicable, only if such successors, substitutes
and assigns are permitted by this Agreement or such other Loan
Document, and reference to a Person in a particular capacity excludes
such Person in any other capacity or individually;
(c) reference to any gender includes any other gender;
(d) reference to any agreement or instrument means such agreement, document
or instrument as amended, supplemented, novated, refinanced, replaced,
waived, restated or modified, and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms hereof;
(e) reference to any Applicable Law means such Applicable Law as amended,
modified, codified or re-enacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated
thereunder;
(f) "HEREUNDER", "HEREOF", "HERETO", "HEREIN" and words of similar import
shall be deemed references to this Agreement or such other Loan
Document, as the case may be, as a whole and not to any particular
Article, Section, clause or other provision hereof or thereof;
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(g) "INCLUDING" (and with correlative meaning "INCLUDE") means including
without limiting the generality of any description preceding such term;
(h) relative to the determination of any period of time, "FROM" means "FROM
(AND INCLUDING)" and "TO" means "TO (BUT EXCLUDING)";
(i) reference to a "CORPORATION" or "COMPANY" shall be construed as a
reference to the analogous form of business entity used in any relevant
jurisdiction; and
(j) when an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning.
2. COMMITMENTS; BORROWING AND CONTINUATION PROCEDURES
2.1 COMMITMENTS
(a) Subject to the terms and conditions of this Agreement each Lender
severally and for itself alone agrees that it will, from time to time
make a single loan (with respect to each Lender, its "LOAN") to the
Borrower as set forth in this Article. Each Loan shall be advanced,
denominated, maintained and continued in Dollars. Each Lender will
make its Loan to the Borrower on any Business Day coinciding with or
occurring prior to the Commitment Termination Date. To the extent the
Borrower does not request that Loans be made in the Total Commitment
Amount on the Borrowing Date, any remaining portion of the Total
Commitment Amount shall not be available to the Borrower at any time
after the Borrowing Date.
(c) No Lender shall be permitted or required to make its Loan if, after
giving effect thereto, the aggregate original principal amount of all
Loans:
(i) of all Lenders would exceed the Total Commitment Amount as at the
Borrowing Date; or
(ii) of such Lender would exceed such Lender's Commitment Amount as at
the Borrowing Date.
2.2 PROCEDURE FOR MAKING LOANS
By delivering the Borrowing Request to the Agent on or before 10:00 a.m.,
London time, the Borrower may request on any Business Day scheduled to
coincide with or occurring prior to the Commitment Termination Date, on not
less than three (3) nor more than five (5) Business Days' notice (counting
the date on which such Borrowing Request is given), that the Loans be made
by all Lenders on the Borrowing Date set forth in the Borrowing Request in
the principal amount specified in the Borrowing Request. Upon receipt of
the Borrowing Request, the Agent shall promptly notify each Lender of the
contents thereof, and the Borrowing Request shall not thereafter be
revocable by the Borrower.
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Subject to the terms and conditions of this Agreement, the Loans requested
to be made in the Borrowing Request shall be made on the requested
Borrowing Date. On such Business Day and subject to such terms and
conditions, each Lender shall, on or before 11:00 a.m., London time credit
such Dollar account of the Agent at its Lending Office as the Agent may
notify to the Lenders with an amount of Dollars, in each case equal to such
Lender's Percentage of the aggregate principal amount of the Loans to be
made pursuant to the Borrowing Request. To the extent funds are received by
the Agent from the Lenders, the Agent shall make such funds available to
the Borrower by crediting the principal amount of such Loans to such
account as the Borrower may designate. No Lender's obligation to make its
Loan as aforesaid shall be affected by any other Lender's failure to make
its Loan.
Notwithstanding any other provision of this Agreement, no Loans shall be
made until such time as the Borrower has received telephonic or facsimile
confirmation from Barclays Bank Plc (or its authorized representative), and
the Borrower shall have confirmed the same to the Agent, that the transfers
of funds and assignments of loans as contemplated by the Restructuring
Agreement shall be in process.
2.3 CANCELLATION
The Borrower may cancel the unutilized portion of the Total Commitment
Amount in whole or in part on giving not less than thirty (30) Business
Days prior written notice thereof to the Agent. Cancellation of any
portion of the Total Commitment Amount shall be in a multiple of
$1,000,000. Effective upon the cancellation of a portion of the Total
Commitment Amount each Lender's Commitment Amount will immediately be
reduced by an amount equivalent to its Percentage of the amount of such
cancellation. Any such notice once given shall be irrevocable.
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2.4 CONTINUATION ELECTIONS
By delivering an Interest Period Notice to the Agent on or before 10:00
a.m., London time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than three (3) nor more than five (5)
Business Days' notice (counting the date on which such Interest Period
Notice is given) prior to the expiration of any Interest Period with
respect to any then outstanding Loans, that all of such Loans (or a portion
of such Loans, but in multiples of $5,000,000) be, upon the expiration of
such Interest Period, continued as Loans for the Interest Period or
Interest Periods specified in such Interest Period Notice; provided,
--------
however, that, at any one time, only two Interest Periods may be in effect.
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2.5 RECORDS
Each Lender's Loan shall be evidenced by a loan account maintained by such
Lender. The Borrower hereby irrevocably authorizes each Lender to make (or
cause to be made) appropriate account entries, which account entries, if
made, shall evidence inter alia the date of, the principal amount of, any
repayments of, the interest rate on, and the Interest Period applicable to,
the Loan then outstanding to such Lender. Any such account entries
indicating the outstanding principal amount of the Loan outstanding to such
Lender shall be prima facie evidence of the principal amount thereof owing
and unpaid, but the failure to make any such entry shall not limit or
otherwise affect the obligations of the Borrower hereunder to make payments
of the principal amount of, or interest on, such Loans when due.
2.6 FUNDING
Each Lender may, if it so elects, fulfil its obligation to make or maintain
any portion of the principal amount of its Loan by causing a foreign
branch, Affiliate or international banking facility of such Lender to make
such Loans; provided, however, that in such event any Loans shall be deemed
-----------------
to have been made by a foreign branch, Affiliate or international banking
facility of such Lender, the obligation of the Borrower to repay the
principal amount of such Loans, and pay interest thereon, shall
nevertheless be to such Lender and shall be deemed to be held by it, to the
extent of such Loans, for the account of such foreign branch, Affiliate or
international banking facility; and provided, further, however, that no
-------------------------
Lender may make any election of the nature contemplated by this Section if,
as a direct result thereof, the Borrower would then immediately be under
any obligation to pay any incremental amount of the nature contemplated by
Section 4.1, 4.2, 4.4, 4.5 or 4.6 or under any obligation pursuant to any
------------------ ---
such Section to prepay all or any portion of any Loan made by such Lender.
3. PRINCIPAL PAYMENTS; INTEREST; FEES
3.1 PRINCIPAL PAYMENTS
The Borrower shall make payment in full of the unpaid principal amount of
all Loans at the Final Maturity Date. Prior thereto, the Borrower may, from
time to time on any Business Day which is the last day of the Interest
Period for the Loans to be prepaid or (subject to Section 4.3) on any other
-----------
Business Day, make a voluntary prepayment, in whole or in part, of the
then outstanding principal amount of all Loans; provided, however, that:
-----------------
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(a) the Borrower shall give the Agent not less than three (3) nor more
than five (5) Business Days' prior written notice (counting the date
on which such notice is given) of any such voluntary prepayment,
which notice, once given, shall be irrevocable; and
(b) all such partial voluntary prepayments shall, be in an aggregate
principal amount of a multiple of $5,000,000.
3.2 INTEREST PAYMENTS
The Borrower shall make payments of interest in accordance with this
Section.
3.2.1 RATE
The Borrower shall pay interest on the principal amount of the Loans
outstanding from time to time at a rate per annum equal to the sum of the
LIBO Rate plus the Applicable Margin.
----
3.2.2. POST-MATURITY RATE
After the maturity of all or any portion of the principal amount of the
Loans or after any other Obligations shall have become due and not been
paid, the Borrower shall pay interest (after as well as before judgment)
on that principal amount so matured or on any such other Obligations due,
at a rate per annum equal to the sum of (i) the LIBO Rate for such
Interest Periods as the Agent may from time to time select, (ii) the
Applicable Margin plus (iii) two percent (2%).
----
3.2.3 PAYMENT DATES
Interest accrued on each Loan shall be payable, without duplication, on:
(a) the last day of each Interest Period with respect to such Loan (and,
in addition to such day, if any Interest Period shall exceed three
months, on each date which is the last day of each successive three-
monthly period occurring during such Interest Period commencing with
the first three month period commencing on the first day of such
Interest Period);
(b) the Final Maturity Date; and
(c) with respect to any portion of any Loan repaid or prepaid pursuant
to Section 3.1, 4.1 or 4.5, the date of such repayment or
---------------- ---
prepayment, as the case may be.
Interest accrued on each Loan after the maturity thereof and interest on
other overdue amounts shall be payable upon demand. The amount of
accruing interest on any Loans shall be calculated during each Interest
Period applicable thereto by the Agent on the daily outstanding principal
amount of such Loans.
3.2.4 RATE DETERMINATIONS
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All determinations by the Agent of the rate of interest applicable to any
Loan shall be conclusive absent manifest error.
3.3 AGENCY FEE
The Borrower agrees to pay to the Agent (for its own account) the agency fee
in the amount and at the times set forth in the letter of even date herewith.
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4. INCREASED COSTS; TAXES; MARKET DISRUPTIONS; GENERAL PAYMENT PROVISIONS
4.1 DOLLARS UNAVAILABLE
(a) If, prior to the date on which the Agent shall make any determination
of the LIBO Rate for any Interest Period, the Agent shall have
determined or shall have been notified (for any reason whatsoever) that
either (x) Dollar certificates of deposit or Dollar deposits, as the
case may be, in the relevant amount and for the relevant Interest
Period are not available to the Lenders in the London interbank market,
or (y) by reason of circumstances affecting the Lenders in the London
interbank market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to such Loan, then the Agent shall
promptly give telephonic notice of such determination confirmed in
writing to the Borrower (which determination shall, in the absence of
manifest error, be conclusive and binding on the Borrower).
(b) As soon as practicable following the giving of any notice described in
clause (a), the Agent, the affected Lenders and the Borrower shall
----------
negotiate for a period not exceeding thirty (30) days with a view to
agreeing an alternative basis for making or maintaining the Loans
affected by the circumstances described in clause (a). During such
----------
period interest shall accrue on the principal amount of each affected
Lender's affected Loans at the rate applicable to each such Loan
immediately prior to the giving of such notice. If no such alternative
basis is agreed within such period, each affected Lender's affected
Loans shall bear interest at a rate per annum equal to the sum of (i)
the cost to such Lender of funding such Loans (as determined by such
Lender which determination shall, in the absence of manifest error, be
conclusive and binding on the Borrower) plus (ii) the Applicable Margin
----
as in effect from time to time.
4.2 INCREASED COSTS, ETC.
(a) The Borrower agrees to reimburse each Lender for any increase (other
than as specifically covered in any other Section of this Article) in
the cost to such Lender of making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Loans, and for any
reduction (other than as specifically covered in any other Section of
this Article) in the amount of any sum receivable by such Lender
hereunder in respect of making, continuing or maintaining any portion
of any such Loans, in either case from time to time by reason of any
Regulatory Change (including with respect to Regulation D of the F.R.S.
Board). In the event of the incurrence of any such increased cost or
reduced amount, such Lender shall promptly notify the Agent and the
Borrower thereof stating in reasonable detail the reasons therefor and
the additional amount required fully to compensate such Lender for such
increased cost or reduced amount. Such notice shall, in the absence of
manifest error, be conclusive and binding on the Borrower.
-16-
(b) As soon as practicable following the giving of any notice described in
clause (a), the affected Lender, the Agent and the Borrower shall
----------
negotiate for a period not exceeding thirty (30) days with a view to
avoiding or minimising the circumstances described in clause (a). If
----------
no steps mutually agreeable to the affected Lender, the Agent and the
Borrower are decided within such thirty (30) day period, the Borrower
may elect either to prepay the principal amount of and interest on such
affected Lender's then affected outstanding Loans (subject, however, to
Section 4.3) or pay, within five days after the expiry of such thirty
-----------
(30) day period, any additional amount required fully to compensate
such affected Lender for the increased cost or reduced amount described
in clause (a).
----------
4.3 FUNDING LOSSES
In the event any Lender shall incur any loss or expense (including any loss
or expense incurred by reason of the liquidation or reemployment of Dollar
deposits or other funds acquired by such Lender to make, continue, or
maintain any portion of the principal amount of a Loan) as a result of:
(a) any payment or prepayment of the principal amount of a Loan on a date
other than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 3.1 or otherwise;
-----------
(b) or any action of the Borrower resulting in any Loans not being made,
continued or maintained in accordance with the Borrowing Request or the
Interest Period Notice given therefor,
then, upon the request of such Lender to the Borrower (with a copy to the
Agent), the Borrower shall pay to the Agent for the account of such Lender
such amount as will (in the reasonable determination of such Lender)
reimburse such Lender for such loss or expense. A statement as to any such
loss or expense (including calculations thereof in reasonable detail) shall
be submitted by such Lender to the Agent and the Borrower and shall, in the
absence of manifest error, be conclusive and binding on the Borrower. Each
Lender Party agrees that, for the purpose of this Section, "loss or
expense" refers to losses or expenses actually incurred by the Lenders and
shall not include compensation to the Lenders for lost margin on the Loans.
4.4 CAPITAL COSTS
(a) If any Regulatory Change affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person
controlling such Lender, and such Lender determines (in its reasonable
discretion) that the rate of return on its or such controlling Person's
capital is reduced to a level below that which such Lender or such
controlling Person could have achieved but for the occurrence of any
such Regulatory Change, then, in any such case upon notice from time to
time by such Lender to the Borrower, the Borrower may, at its option
(i) within five days of receipt of such notice, pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return or (ii) prepay
the principal amount of and interest on such affected Lender's then
outstanding Loans (subject, however, to Section 4.3). A statement of
-----------
such Lender as to any such additional amount or amounts (including
calculations thereof in reasonable detail)
-17-
shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, such Lender may use any
method of averaging and attribution that it (in its reasonable
discretion) shall deem applicable.
(b) Notwithstanding clause (a), the Borrower shall not be obligated to pay
----------
any amount to any Lender in respect of any such reduction in the rate
of return which arises as a consequence of any Applicable Law
implementing (i) the proposals for international convergence of capital
measurement and capital standards published by the Basle Committee on
Banking Regulations and Supervisory Practices in July 1988 and/or (ii)
(x) the Council of the European Communities Directive of 17 April 1989,
on the own funds of credit institutions (89/299/EEC), (y) the Council
of the European Communities Directive of 18 December 1989, on a
solvency ratio for credit institutions (89/647/EEC) and/or (z) the
Council of the European Communities Directive of 15 March 1993 on the
capital adequacy of investment firms and credit institutions
(93/6/EEC), as each of the foregoing items in this clause may be
amended from time to time, to the extent that the impact of any such
Applicable Law can reasonably be calculated at the Effective Date. In
addition, no Lender may make any claim for compensation in respect of
any such reduction in return to the extent that such claim relates to a
period occurring prior to the date which is six (6) months prior to the
notification by such Lender of the event leading to such reduction in
the rate of return; provided, however, that nothing in this sentence
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shall restrict the ability of such Lender to make any further claim for
compensation in respect of any event notified to the Borrower at any
time on or after such date of notification.
4.5 ILLEGALITY
(a) If, as the result of any Regulatory Change, any Lender shall determine
(which determination, in the absence of manifest error, shall be
conclusive and binding on the Borrower) that it is unlawful for such
Lender to make its Loan, the obligations of such Lender to make any
portion of the principal amount of its Loan shall, upon such
determination (and telephonic notice thereof confirmed in writing to
the Agent and the Borrower), forthwith be suspended until such Lender
shall become aware that the circumstances causing such suspension no
longer exist and shall have notified the Agent and the Borrower to such
effect, at which time the obligation of such Lender to make its Loan
shall be reinstated.
(b) If, as the result of any Regulatory Change, any Lender shall determine
(which determination, in the absence of manifest error, shall be
conclusive and binding on the Borrower) that it is unlawful for such
Lender to continue its Loan, then, upon notice by such Lender to the
Agent and the Borrower, such Lender shall consult with the Borrower and
the Agent for a period of up to thirty (30) days from the date of such
notice, with a view to agreeing upon a mutually acceptable alternative
arrangement which will avoid or minimize such illegality. If no steps
mutually agreeable to the affected Lender, the Agent and the Borrower
are decided within such thirty (30) day period (or if such period of
consultation shall be effectively prohibited by such Regulatory Change)
the Borrower shall prepay, within five days after the expiry of such
thirty (30) day period (or on such earlier date as may be required by
such Regulatory Change) the principal amount of and interest on such
affected Lender's then outstanding Loan (subject, however, to Section
-------
4.3).
---
-18-
4.6 TAXES
(a) All payments by the Borrower of principal of, and interest on, the
Loans and all other amounts payable pursuant to this Agreement or any
other Loan Document to any Lender Party shall be made free and clear
of, and without deduction for any, present or future income, excise,
stamp or other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority of any
jurisdiction, in each case other than franchise taxes and taxes imposed
on or measured by the recipient's net income or receipts (such non-
excluded items referred to as "TAXES"). In the event that any
withholding or deduction from any payment to be made by the Borrower
hereunder or under any other Loan Document is required in respect of
any Taxes pursuant to any Applicable Law, then the Borrower will:
(i) to the extent that any such Taxes are payable by the Borrower,
pay directly to the relevant authority the full amount to be so
withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent (to the extent the same
is available to the Borrower) evidencing such payment to such
authority; and
(iii) pay to the Agent for the account of the Person or Persons
entitled thereto such additional amount or amounts as is
necessary to ensure that the net amount actually received by such
Person will be equal to the full amount such Person would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Lender Party
with respect to any payment received by such Lender Party hereunder or
under any other Loan Document, such Lender Party may pay such Taxes
and the Borrower will promptly pay such additional amounts (including
any penalties, interest or expenses except to the extent that the same
are incurred as a result of the gross negligence or wilful misconduct
of the relevant Lender Party) as is or are necessary in order that the
net amount received by such Lender Party after the payment of such
Taxes (including any Taxes on such additional amount) shall equal the
amount such Lender Party would have received had such Taxes not been
asserted.
(b) If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for its own account
and/or, as the case may be, the account of the relevant Lender Parties,
the required receipts or other required documentary evidence, the
Borrower shall indemnify the Agent or the relevant Lender Parties, as
the case may be, for any incremental Taxes, interest or penalties that
may become payable by any such Lender Party as a result of any such
failure (excluding, however, any such incremental Taxes, interest or
penalties incurred as a result of the gross negligence or wilful
misconduct of the relevant Lender Party). For purposes of this
Section, a distribution hereunder or under any other Loan Document by
the Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrower.
(c) The Lender Parties agree to cooperate with the Borrower in completing
and delivering or filing tax-related forms which would reduce or
eliminate any amount of taxes of the
-19-
nature referred to in clause (a) required to be deducted or withheld
----------
on account of any payment made by the Borrower under this Agreement
or any other Loan Document; provided, however, that no Lender Party
-------- -------
shall be under any obligation to execute and deliver any such form if,
in the opinion of such Lender Party, completion of any such form might
reasonably be expected to result in an adverse consequence with respect
to the business or tax position of such Lender Party.
4.7 MITIGATION
(a) In the event that the Borrower (or any Person on its behalf) makes
payment of any amount pursuant to Section 4.4 or 4.6 or that any Lender
----------- ---
Party seeks payment of an amount pursuant to Section 4.4 or 4.6 or
----------- ---
because of circumstances resulting in the thirty (30) day negotiation
period described in clause (b) of any of Section 4.1, 4.2, or 4.5, such
----------------- ---
affected Lender Party agrees that it will take such reasonable steps as
may reasonably be open to it to mitigate the effects of the
circumstances described in the foregoing Sections (including the
transfer of such Lender Party's Lending Office to another jurisdiction
and the application for a Tax Credit); provided, however, that no
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Lender Party shall be obligated to (i) take any such steps if, in its
opinion, such steps would require it to achieve less than its expected
return under this Agreement or would have an adverse effect upon its
assets or financial condition, (ii) achieve any particular result in
the case of any such steps resulting in less than complete mitigation
of the relevant circumstances or (iii) take any such steps if, in its
opinion, it would incur a liability to the Borrower as a result
thereof.
(b) If, pursuant to clause (a), any Lender Party effectively obtains a
----------
refund of tax or credit (a "TAX CREDIT") against a payment made by the
Borrower pursuant to Section 4.6 (a "TAX PAYMENT"), and such Lender
-----------
Party is able to identify such Tax Credit as being attributable to such
Tax Payment, then such Lender Party, after actual receipt of such Tax
Credit, shall reimburse the Borrower for such amount as such Lender
Party shall reasonably determine to be the proportion of such Tax
Credit as shall be reasonably attributable to such Tax Payment;
provided, however, that no Lender Party shall be required to make any
-----------------
such reimbursement which would cause it to lose the benefit of such Tax
Credit or would otherwise adversely affect any matter relating to such
Lender Party in connection with the assessment or payment of any Taxes.
Each Lender Party shall have absolute discretion as to whether to claim
any Tax Credit, and if it does so claim, the extent, order and manner
in which it does so. No Lender Party shall be obliged to disclose
information regarding its tax affairs or computations to the Borrower.
4.8 PAYMENTS, COMPUTATIONS, ETC
All payments by the Borrower pursuant to this Agreement or any other Loan
Document shall be paid in Dollars. All such payments shall be made by the
Borrower to the Agent for the account of each Lender Party entitled
thereto, by delivery of Dollars in immediately available funds to an
account of the Agent in New York City at the Agent's Lending Office, which
account shall be designated from time to time by notice to the Borrower
from the Agent in either such case for the account of each Lender Party
entitled thereto (and, if such payment shall be of less than the due amount
of the relevant payment Obligation then due and owing, for the pro rata
benefit of each Lender Party entitled to share in such payment in
accordance with its respective portion of the
-20-
aggregate unpaid amount of similar payment Obligations). All such payments
shall be made, without setoff, deduction, or counterclaim, not later than
11:00 a.m., New York time, on the date when due. Any payments received
hereunder after the time and date specified in this Section shall be deemed
to have been received by the Agent on the next following Business Day. The
Agent shall promptly remit to each Lender its share (calculated as
aforesaid), if any, of such payments to an account designated by such
Lender to the Agent by notice from time to time and maintained at such
Lender's Lending Office. All interest and fees shall be computed on the
basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days. Subject to clauses (d) and (e)
----------- ---
of the definition of "INTEREST PERIOD", whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of
time shall be included in computing interest or fees, if any, in connection
with such payment.
4.9 PRORATION OF PAYMENTS
If any Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff, or otherwise) on account
of the principal amount of or interest on any Loan or of any other payment
Obligation of the Borrower in excess of its pro rata share of payments then
or therewith obtained by all Lenders entitled thereto upon the principal
amount of and interest on all Loans or the relevant such payment
Obligation, such Lender shall purchase from the other Lenders such
participations in Loans (or other Obligations) held by them as shall be
necessary to cause such purchasing Lender to share the excess payment or
other recovery ratably with each of them; provided, however, that if all
-------- -------
or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing holder, the purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by Applicable Law, exercise all its rights of payment (including
pursuant to Section 4.10) with respect to such participation as fully as if
------------
such Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent
with the rights of the Lender entitled under this Section to share in the
benefit of any recovery on such secured claim.
4.10 APPLICATION OF PROCEEDS
If at any time any amount received by the Agent is less than the amount
then due and payable pursuant to this Agreement or any other Loan Document
such amount may, in the discretion of the Agent (after consultation with
the Lenders), be applied (after payment of any amounts payable to the Agent
pursuant to Sections 10.3 and 10.4 and similar provisions contained in any
------------- ----
other Loan Document) in whole or in part by the Agent against, all or any
part of the Obligations in the following order:
(a) first, to amounts outstanding to the Lender Parties under any Loan
Document in respect of any amount other than interest on, or the
principal amount of, any Loan;
-21-
(b) second, to amounts outstanding to the Lender Parties (or any of them)
under any Loan Document in respect of interest on any Loan; and
(c) third, to amounts outstanding to the Lender Parties under any Loan
Document in respect of the principal amount of any Loan.
Any surplus of such cash or cash proceeds held by the Agent and remaining
after payment in full of all the Obligations, and the termination of all
Commitments (if not then already terminated), shall be paid over to
whomsoever may be lawfully entitled to receive such surplus.
4.11 JUDGMENT CURRENCY, ETC
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in Dollars into another
currency, the Borrower agrees, to the fullest extent permitted by
Applicable Law, that the rate of exchange used shall be that at which
in accordance with normal banking procedures the Agent could purchase
Dollars with such other currency on the Business Day preceding that on
which final judgment is given.
(b) The obligation of the Borrower in respect of any sum denominated in
Dollars due from it to any Lender Party shall, notwithstanding any
judgment in a currency other than Dollars, be discharged only to the
extent that on the Business Day following receipt by such Lender Party
of any sum adjudged to be so due in such other currency, such Lender
Party may in accordance with normal banking procedures, purchase
Dollars with such other currency. In the event that the Dollars so
purchased are less than the sum originally due to such Lender Party in
Dollars, the Borrower, as a separate obligation and notwithstanding any
such judgment, hereby indemnifies and holds harmless such Lender Party
against such loss, and if the Dollars so purchased exceed the sum
originally due to such Lender Party, such Lender Party shall remit to
the Borrower such excess.
5. CONDITIONS PRECEDENT TO MAKING LOANS
The obligations of the Lenders to make the Loans shall be subject to the
prior or concurrent satisfaction of each of the conditions precedent set
forth in this Article.
5.1 RESOLUTIONS, ETC
The Agent shall have received:
(a) from each Obligor, a certificate of its Secretary or similar officer as
to:
(i) resolutions of (or other confirmation of authority granted by) its
Board of Directors or similar body then in full force and effect
authorizing the execution, delivery and performance of this
Agreement and each other Loan Document to be executed by it in
connection with the transactions contemplated hereby and thereby
(in the case of the Borrower) and the Guaranty Agreement (in the
case of Guarantor);
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(ii) the incumbency and signatures of those of its officers authorised
to act with respect to this Agreement and each other Loan Document
or other document executed or to be executed by it (in the case of
the Borrower) and the Guaranty Agreement (in the case of the
Guarantor); and
(iii) its Organic Documents as then in effect.
5.2 GUARANTY AGREEMENT
The Agent shall have received counterparts of the Guaranty Agreement, duly
executed by an Authorized Representative of the Guarantor.
5.3 PROCESS AGENT ACCEPTANCE
The Agent shall have received a counterpart of the Process Agent
Acceptance, duly executed by the Process Agent, together with evidence of
the appointment of the Process Agent by each Obligor.
5.4 OPINIONS OF COUNSEL
The Agent shall have received opinions from:
(a) Debevoise & Plimpton, New York counsel to the Lender Parties,
substantially in the form of Exhibit F attached hereto;
---------
(b) Deborah Friedman, Esq., counsel to the Borrower, substantially in the
form of Exhibit G attached hereto; and
---------
(c) Dale E. Huffman, counsel to the Guarantor, substantially in the form
of Exhibit H attached hereto.
---------
The Borrower hereby instructs counsel referred to in clause (b) to
----------
deliver the opinion referred to in such clause to the Lender Parties.
5.5 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC
The representations and warranties of the Borrower set forth in Article 6
---------
and of the Guarantor set forth in Article 3 of the Guaranty Agreement shall
be true and correct in all material respects as of the date initially made,
and both immediately before and immediately after the making of the Loans
(but, if any Default of the nature referred to in Section 8.1.5 shall have
-------------
occurred with respect to any other Indebtedness, without giving effect to
the application, directly or indirectly, of the proceeds of such Loans to
such other Indebtedness):
(a) such representations and warranties shall be true and correct in all
material respects with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case such representations
and warranties shall be true and correct as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
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5.6 BORROWING REQUEST
The Agent shall have received the Borrowing Request.
6. REPRESENTATIONS AND WARRANTIES
In order to induce the Lender Parties to enter into this Agreement and, in
the case of the Lenders, to make and continue Loans hereunder, the Borrower
individually for itself and with respect to matters hereinafter relating to
it represents and warrants unto each Lender Party as set forth in this
Article. The representations and warranties set forth in this Article shall
be made upon the delivery of the Borrowing Request and each Interest Period
Notice, and shall be deemed to have been made on the Borrowing Date and on
the effective date of any Interest Period Notice.
6.1 ORGANIZATION, POWER, AUTHORITY, ETC
The Borrower is a corporation validly organized and existing and in good
standing under the laws of the State of Delaware and is duly qualified to
do business and is in good standing (where such concept is applicable) as a
foreign company in each jurisdiction where the nature of its business makes
such qualification necessary and where the failure to so qualify would have
a Materially Adverse Effect and has full power and authority, and holds all
requisite Approvals, to own and hold under lease its property, to sue and
to be sued in its own name and to conduct its business substantially as
currently conducted by it. The Borrower has full power and authority to
enter into and perform its obligations under this Agreement and the other
Loan Documents executed or to be executed by it.
6.2 DUE AUTHORIZATION; NON-CONTRAVENTION
The execution and delivery by the Borrower of this Agreement and each other
Loan Document executed or to be executed by it and the performance by the
Borrower of its obligations hereunder and thereunder, have been duly
authorized by all necessary corporate action on its part, do not require
any Approval, do not and will not conflict with, result in any violation
of, or constitute any default under, any provision of any Requirement of
Law or Approval binding on it, and will not result in or require the
creation or imposition of any Lien on any of its properties pursuant to the
provisions of any Contractual Obligation.
6.3 VALIDITY, ETC.
This Agreement constitutes, and each other Loan Document executed or to be
executed by the Borrower constitutes, the legal, valid, and binding
obligation of the Borrower enforceable in accordance with its terms,
subject as to enforceability only, to Applicable Laws relating to
bankruptcy and the enforceability of creditors' rights generally and by the
fact that the availability of equitable remedies is discretionary.
6.4 FINANCIAL INFORMATION
The financial information of the Borrower which has been furnished to the
Agent for the purposes of or in connection with this Agreement as contained
in the Borrower's annual report
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on Form 10-K for the 1996 Fiscal Year and quarterly reports on Form 10-Q
for the first three Fiscal Quarters of the 1997 Fiscal Year, in each case
as filed with the SEC, has been prepared in accordance with GAAP
consistently applied throughout the periods involved (except as disclosed
therein) and presents fairly the financial position of the Borrower as at
the dates thereof and the results of its operations for the periods then
ended. The Borrower does not have on the date hereof any material
Contingent Liability or liability for taxes, long-term leases or unusual
forward or long-term commitments which are not reflected in its financial
statements described in this Section or in the notes thereto.
6.5 ABSENCE OF DEFAULT
The Borrower is not in default in the payment of (or in the performance of
any material obligation applicable to) any Indebtedness or any material
Requirement of Law.
6.6 LITIGATION, ETC.
Except as previously disclosed to the Agent in writing, there is no pending
or, to the knowledge of the Borrower, threatened labour controversy,
litigation, arbitration or governmental investigation or proceeding against
the Borrower or any of its Subsidiaries, or to which any of its business,
operations, properties, assets, revenues or prospects is subject as to
which the Borrower believes there is a reasonable likelihood of an adverse
outcome which, if adversely determined, might have a Materially Adverse
Effect. In the case of any litigation so disclosed, there has been no
development in such litigation since the Effective Date which might have a
Materially Adverse Effect.
6.7 MATERIALLY ADVERSE EFFECT
Since December 31 1996 there have been no occurrences which, individually
or in the aggregate, have or may have a Materially Adverse Effect with
respect to the Borrower.
6.8 TAXES AND OTHER PAYMENTS
The Borrower has filed, or caused to be filed, all tax returns and reports
required by Applicable Law to have been filed by or on its behalf except as
permitted hereunder, except any such taxes, charges or amounts (a) in
respect of which the relevant invoice or demand for payment was issued not
more than one hundred and twenty (120) days prior to the payment thereof
(and in respect of which the relevant Person will pay prior to the end of
such period), (b) which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on the books of the relevant Person or (c)
taxes relating to any period prior to January 1, 1992 with respect to the
payment of which the Borrower has been indemnified by Amax, Inc.
6.9 ENVIRONMENTAL COMPLIANCE
Except as disclosed in the Borrower's annual report on Form 10-K for the
1996 Fiscal Year or to the Agent in writing, (a) the Borrower and its
Subsidiaries have complied with all applicable Environmental Laws, except
where the failure to be in compliance therewith would not have a Materially
Adverse Effect, (b) the Borrower and its Subsidiaries do not manage any
Hazardous
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Materials at any of their facilities and assets in violation of any
Environmental Laws, except where any such violation would not reasonably
be expected to have a Materially Adverse Effect and (c) there are no
events, conditions or circumstances occurring at or relating to any
facilities or assets of the Borrower or its Subsidiaries involving any
environmental pollution or contamination that have, or would reasonably be
expected to have, a Materially Adverse Effect.
6.10 PARI PASSU
The payment Obligations of the Borrower under this Agreement and each
other Loan Document to which it is a party rank at least pari passu in
right of payment with all of the Borrower's other unsecured and
unsubordinated Indebtedness, other than any such Indebtedness which is
preferred by mandatory provisions of Applicable Law.
7. COVENANTS
7.1 CERTAIN COVENANTS
The Borrower agrees with each Lender Party that, until all Commitments
have terminated and all Obligations have been paid and performed in full,
it will perform its obligations set forth in this Article.
7.1.1 FINANCIAL INFORMATION, ETC.
The Borrower will furnish, or will cause to be furnished, to the
Agent copies (with sufficient copies for each other Lender Party) of
the following financial statements, reports and information:
(a) promptly when available, and in any event within ninety (90)
days after the close of each Fiscal Year of the Borrower, a copy
of each Obligor's annual report on Form 10-K for such Fiscal
Year, and reported on without Impermissible Qualification by
independent certified public or chartered accountants of
recognized international standing;
(b) promptly when available, and in any event within forty five (45)
days after the close of each of the first three Fiscal Quarters
of each Fiscal Year of the Borrower , a copy of each Obligor's
quarterly report on Form 10-Q for such Fiscal Quarter;
(c) as soon as possible and in any event within five (5) Business
Days after the occurrence of any Default, a statement of its
chief financial Authorized Representative setting forth details
of such Default and the action which it has taken and/or
proposes to take with respect thereto;
(d) as soon as possible and in any event within five (5) Business
Days after the occurrence of any adverse development with
respect to any labor controversy, litigation, arbitration or
governmental investigation or proceeding described in
-26-
Section 6.6 which has a reasonable likelihood of having a
-----------
Materially Adverse Effect;
(e) notice of the occurrence as soon as possible and in any event
within five (5) Business Days after it knows or has reason to
know of any circumstance which has a reasonable likelihood of
having a Materially Adverse Effect;
(f) promptly after the sending or filing thereof, copies of all
reports that it sends to its public shareholders and copies of
registration statements and filings made with the SEC or any
national or regional securities exchange or commission which, in
any such case, relate to or describe any material matter in
connection with the business, operations, assets, financial
condition or prospects of the Borrower; and
(g) such other information with respect to the business, operations,
assets, financial condition, or prospects of the Borrower as the
Agent or any Lender (acting through such Agent) may from time to
time reasonably request.
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7.1.2 COMPLIANCE WITH LAWS
The Borrower will comply in all material respects with all Applicable
Laws relating to it and to its assets and properties except where such
failure to comply would not have a Materially Adverse Effect.
7.1.3 MAINTENANCE OF CORPORATE EXISTENCE
The Borrower will do and will cause to be done at all times all things
necessary to maintain and preserve its corporate existence and will do
and cause to be done at all times all things necessary to be duly
qualified to do business and be in good standing (where such concept is
relevant) as a foreign corporation in each jurisdiction where the nature
of its business makes such qualification necessary.
7.1.4 PAYMENT OF TAXES, ETC
The Borrower will pay and discharge, as the same may become due and
payable, all taxes, assessments, fees and other governmental charges or
levies against it or on any of its property, as well as claims of any
kind or character (including claims for sums due for labour, material,
supplies, personal property and services); provided, however, that the
---------
foregoing shall not require the Borrower to pay or discharge any such
tax, assessment, fee, charge, levy or claim so long as it shall be
diligently contesting the validity or amount thereof in good faith by
appropriate proceedings and shall have set aside on its books adequate
reserves in accordance with GAAP with respect thereto.
7.1.5 BOOKS AND RECORDS
The Borrower will keep financial records and statements reflecting all of
its business affairs and transactions in accordance with GAAP.
7.1.6 PROCEEDS
The Borrower shall apply the proceeds of the Loans strictly in accordance
with this Agreement including as set forth in Recital (B).
-----------
7.1.7 ENVIRONMENTAL COVENANT
(a) The Borrower will, and will use its best efforts to ensure that each
other Subsidiary will, use and operate all of its facilities and
properties related thereto in material compliance with, keep all
material Approvals relating to environmental matters in effect and
remain in material compliance with and handle all Hazardous
Materials in material compliance with, all applicable Environmental
Laws.
(b) The Borrower will immediately notify the Agent and (upon the request
of the Agent) provide (and ensure that each Subsidiary provides)
copies upon receipt of all material written claims or complaints or
(to the extent any matter referred to in any notice or inquiry might
have a Materially Adverse Effect) notices or
-28-
inquiries relating to the condition of its facilities and properties
or compliance with all applicable Environmental Laws, and shall
promptly cure (to the extent necessary to terminate such action or
proceeding) any actions and proceedings relating to compliance with
all applicable Environmental Law.
(c) The Borrower will provide such information and certifications
which the Agent may reasonably request from time to time to evidence
compliance with this Section.
7.1.8 PARI PASSU
The Borrower will ensure that its payment Obligations under this
Agreement and each other Loan Document to which it is a party rank at
least pari passu in right of payment with all of the Borrower's
unsecured and unsubordinated Indebtedness, other than any such
Indebtedness which is preferred by mandatory provisions of Applicable
Law.
7.1.9 ACCURACY OF INFORMATION
All factual information hereafter furnished by or on behalf of the
Borrower in writing to any Lender Party for the purposes of or in
connection with this Agreement or any transactions contemplated thereby
will be true and accurate in all material respects on the dates of which
such information is dated or certificate and such information shall not
be incomplete by omitting to state any material fact necessary to make
such information not misleading in any material respect.
7.1.10 PLANS
The Borrower will maintain and operate each Plan in material compliance
with ERISA and the Code.
7.1.11 BUSINESS ACTIVITIES; ORGANIC DOCUMENTS; FISCAL YEAR
(a) The Borrower will not amend its Organic Documents in any material
respect, change its corporate name or change its Fiscal Year.
(b) The Borrower will not engage in any business activity, directly or
indirectly through its Subsidiaries, other than the exploration for
and exploitation of metals and minerals and the construction,
development and operation of metal and mineral mines and any
activity incidental thereto.
8. EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT
The term "EVENT OF DEFAULT" shall mean any of the events set forth in
this Section.
8.1.1 NON-PAYMENT OF OBLIGATIONS
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The Borrower:
(a) shall default in the payment, repayment or prepayment when due of
any principal amount of or interest on any Loan; or
(b) shall default in the payment when due of interest on any Loan or
any other Obligation (and such default shall continue unremedied
for a period of five (5) Business Days).
8.1.2 NON-PERFORMANCE OF CERTAIN COVENANTS
The Borrower shall default in the due performance and observance of
any of its obligations under Section 7.1.6, 7.1.8 or 7.1.11 or the
--------------------- ------
Guarantor shall default in the due performance and observance of its
obligations under Section 4.3 of the Guaranty Agreement.
-----------
8.1.3 NON-PERFORMANCE OF OTHER OBLIGATIONS
Either Obligor shall default in the due performance or observance of any
term, condition, covenant or agreement contained in any Loan Document
executed by it (other than a default referred to in Section 8.1.1 or
-------------
8.1.2), and, if capable of cure or remedy, such default shall continue
-----
unremedied for a period of thirty (30) Business Days (or such longer
period as the Agent may in its absolute discretion agree in the event
that the Agent determines that such default is reasonably capable of
being cured within such longer period) after notice thereof shall have
been given to such Obligor by the Agent.
8.1.4 BREACH OF REPRESENTATION OR WARRANTY
(a) Any representation or warranty of the Borrower made hereunder or in
any other writing furnished by it or on its behalf for the purposes
of or in connection with this Agreement shall prove to have been
incorrect in any material respect when made.
(b) Any representation or warranty of the Guarantor made under the
Guaranty Agreement shall prove to have been incorrect in any material
respect when made.
8.1.5 DEFAULT ON OTHER INDEBTEDNESS
A default shall occur in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, of any Indebtedness
(other than Indebtedness described in Section 8.1.1 but including for
-------------
the avoidance of doubt, as may be arising under or in connection with the
Restructuring Agreement) of either Obligor (or any of its Subsidiaries)
having a principal amount, individually or in the aggregate, in excess of
$5,000,000 (or the equivalent thereof in any other currency) in the case
of the Borrower or in excess of $30,000,000 (or the equivalent thereof in
any other currency)
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in the case of the Guarantor or a default shall occur in the performance
or observance of any obligation or condition with respect to such
Indebtedness if (a) (i) the effect of such default is to permit (after
the passage of time, the giving of notice, the making of any required
determination or any combination of the foregoing) the acceleration of
the maturity of any such Indebtedness and (ii) in the reasonable opinion
of the Required Lenders such default is not capable of being cured within
the applicable period for cure set forth in the relevant documentation
relating to such Indebtedness or (b) such default shall continue
unremedied for any applicable period of time sufficient to permit the
holder or holders of such Indebtedness, or any trustee or agent for such
holders, to cause such Indebtedness to become due and payable prior to
its expressed maturity.
8.1.6 BANKRUPTCY, INSOLVENCY ETC
Either Obligor shall:
(a) become insolvent or generally fail to pay, or admit in writing its
inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestration or other custodian for such Person, or any
property of any thereof, or make a general assignment for the benefit
of creditors;
(c) in the absence of such application, consent or acquiescence, permit
or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for such Person or for a substantial
part of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within sixty
(60) days, provided that the Borrower hereby expressly authorizes
each Lender Party to appear in any court conducting any relevant
proceeding during such sixty (60) day period to preserve, protect and
defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganisation, debt arrangement or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of either Obligor and, if such
case or proceeding is not commenced by such Person, such case or
proceeding shall be consented to or acquiesced in by such Person or
shall result in the entry of an order for relief or shall remain for
sixty (60) days undismissed, provided that the Borrower hereby
expressly authorizes each Lender Party to appear in any court
conducting any relevant proceeding during such sixty (60) day period
to preserve, protect and defend their rights under the Loan
Documents;
(e) suffer any comparable event to any of the foregoing in any
jurisdiction; or
(f) take any corporate action authorising, or in furtherance of, any of
the foregoing.
8.1.7 IMPAIRMENT OF LOAN DOCUMENTS
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This Agreement or the Guaranty Agreement shall cease in whole or part to
be the legal, valid, binding and enforceable obligation of the relevant
Obligor party thereto or such Obligor or any other Person (other than any
Lender Party) shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability.
8.1.8 JUDGMENTS
Any judgment or order for the payment of money in excess of $5,000,000
(or the equivalent thereof in any other currency) in the case of the
Borrower shall be rendered against the Borrower and either:
(a) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order; or
(b) there shall be any period of ten (10) consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
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8.1.9 MATERIALLY ADVERSE EFFECT
Any event shall occur or condition shall exist which constitutes a
Materially Adverse Effect.
8.1.10 PLANS
Any of the following events shall occur with respect to any Plan:
(a) the institution of any steps by the Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if,
as a result of such termination, the Borrower or any such member
could be required to make a contribution to such Pension Plan, or
could reasonably incur a liability or obligation to such Pension
Plan, in excess of $1,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
8.2 ACTION IF BANKRUPTCY
If any Event of Default described in Section 8.1.6 shall occur, the
-------------
Commitments (if not therefore terminated) shall automatically terminate
and the outstanding principal amount of all outstanding Loans and all
other Obligations shall automatically be and become immediately due and
payable, without notice or demand.
8.3 ACTION IF OTHER EVENT OF DEFAULT
If any Event of Default (other than any Event of Default described in
Section 8.1.6) shall occur for any reason, whether voluntary or
-------------
involuntary, and be continuing, the Agent may, and upon the direction of
the Required Lenders, shall, upon notice or demand to the Borrower,
declare all or any portion of the outstanding Loans to be due and
payable and any or all other Obligations to be due and payable and/or
the Commitments (if not therefore terminated) to be terminated, whereon
the full unpaid principal amount of such Loans and any and all other
Obligations which shall be so declared due and payable shall be and
become immediately due and payable, without further notice, demand, or
presentment, and/or as the case may be, the Commitments shall terminate.
9. THE AGENT
9.1 ACTIONS
Each Lender authorises the Agent to act on behalf of such Lender under
this Agreement and each other Loan Document and, in the absence of other
written instructions from the Required Lenders, received from time to
time by the Agent (with respect to which the Agent agrees that it will,
subject to the last paragraph of this Section, comply in good faith
except as otherwise advised by counsel to the effect that any such
compliance might subject the Agent to any liability of whatsoever
nature), to exercise such powers hereunder and thereunder as are
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specifically delegated to or required of the Agent by the terms hereof
and thereof, together with such powers as may be reasonably incidental
thereto.
Each Lender agrees (which agreement shall survive any termination of
this Agreement) to indemnify the Agent, pro rata according to such
Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any
other Loan Document, including the reimbursement of the Agent for all
out-of-pocket expenses (including attorneys' fees and expenses on a full
indemnity basis) incurred by the Agent hereunder or thereunder or in
connection herewith or therewith or in enforcing the Obligations of
either Obligor under this Agreement or any other Loan Document, in all
cases as to which the Agent is not reimbursed by such Obligor; provided,
---------
however, that no Lender shall be liable for the payment of any portion
-------
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements determined by a court
of competent jurisdiction in a final proceeding to have resulted from
the Agent's gross negligence or wilful misconduct.
The Agent shall not be required to take any action hereunder or under
any other Loan Document, or to prosecute or defend any suit in respect
of this Agreement or any other Loan Document, unless it is indemnified
to its satisfaction by the Lenders against loss, costs, liability and
expense. If any indemnity in favor of the Agent shall become impaired,
it may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given.
9.2 FUNDING RELIANCE, ETC
Unless the Agent shall have been notified by telephone, confirmed in
writing, by any Lender by 5:00 p.m., London time, on the day prior to
the proposed Borrowing Date that such Lender will not make available the
amount which would constitute its Percentage of the Loans to be made by
all the Lenders on such date, the Agent may assume that such Lender has
made such amount available to the Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If
and to the extent that such Lender shall not have made such amount
available to the Agent, such Lender and the Borrower jointly and
severally agree to repay the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from
the date the Agent made such amount available to the Borrower to the
date such amount is repaid to the Agent, at the interest rate applicable
at the time to the relevant Loans.
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9.3 EXCULPATION
Neither the Agent nor any of its directors, officers, employees or agents
shall be liable to any Lender for any action taken or omitted to be taken
by it under this Agreement or any other Loan Document, or in connection
herewith or therewith, except for its own wilful misconduct or gross
negligence, or responsible for any recitals or warranties herein or
therein, or for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document or to make any
inquiry respecting the performance by either Obligor of its obligations
hereunder or thereunder. The Agent shall be entitled to rely upon the
advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement, or writing which it believes to be genuine and to
have been presented by a proper Person.
9.4 SUCCESSORS
The Agent may resign as such at any time upon at least thirty (30) days'
prior notice to the Borrower and all the Lenders. If the Agent at any time
shall resign, the Required Lenders may appoint (subject, as long as no
Default shall have occurred and be continuing, to the prior written consent
of the Borrower, such consent not to be unreasonably withheld or delayed)
another Lender as the successor Agent which shall thereupon become the
Agent hereunder. If no successor Agent shall have been so appointed as
aforesaid, and shall have accepted such appointment, within thirty (30)
days after the retiring Agent's giving notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint (subject, as long as
no Default shall have occurred and be continuing, to the prior written
consent of the Borrower, such consent not to be unreasonably withheld or
delayed) a successor Agent, which shall be one of the Lenders or a
commercial banking institution having a combined capital and surplus of at
least $500,000,000 (or the equivalent thereof in another currency). Upon
the acceptance of any appointment as an Agent hereunder by the successor
Agent, such successor Agent shall be entitled to receive from the retiring
Agent, such documents of transfer and assignment as the successor Agent may
reasonably request, and shall thereupon succeed to and become vested with
all rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations under
this Agreement and each other Loan Document.
9.5 LOANS BY STANDARD BANK
Standard Bank shall have the same rights and powers with respect to the
Loans made by it as any Lender and may exercise the same as if it were not
the Agent. Standard Bank and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with either Obligor
or any Affiliate of any thereof as if Standard Bank were not the Agent.
9.6 STANDARD BANK AS THE AGENT
In acting as Agent for the Lenders, the Administrative Agent's banking
division will be treated as a separate entity from any other of its
divisions (or similar unit of the Agent in any subsequent re-organization)
or Subsidiaries (the "OTHER DIVISIONS") and, in the event that the Agent
should act for either Obligor or any Affiliate of either in a corporate
finance or other advisory capacity ("ADVISORY CAPACITY"), any information
given by such Person to one of the
-35-
Other Divisions is to be treated as confidential and will not be available
to the Lender Parties without the consent of such person provided that:-
(a) the consent of such Obligor or such Affiliate will not be required in
relation to any information which the Agent in its discretion
determines relates to a Default or in respect of which the Lenders
have given a confidentiality undertaking in a form satisfactory to the
Agent and the relevant Obligor or Affiliate acting reasonably; and
(b) if representatives or employees of the Agent receive information in
relation to either Obligor or while acting in an Advisory Capacity
they will not be obliged to disclose such information to
representatives or employees of the Agent in their capacity as agent
bank hereunder or to any of the Lenders if to do so would breach any
rule or regulation or fiduciary duty imposed upon such persons.
9.7 CREDIT DECISIONS
Each Lender acknowledges that it has, independently of the Agent and each
other Lender, and based on such documents, information and investigations
as it has deemed appropriate, made its own credit decision to extend its
Commitment. Each Lender also acknowledges that it will, independently of
the Agent and each other Lender, and based on such other documents,
information and investigations as it shall deem appropriate at any time,
continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it
under this Agreement or any other Loan Document.
10. MISCELLANEOUS
10.1 WAIVERS, AMENDMENTS, ETC
The provisions of this Agreement may from time to time be amended, modified
or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower (and in the case of the third paragraph of
Section 2.2 only, Cyprus Amax), the Agent and the Required Lenders;
-----------
provided, however, that no such amendment, modification or waiver which
-----------------
would:
(a) modify any requirement hereunder that any particular action be taken or
a determination be made by, or with the consent of or in consultation
with, all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section, change the definition of "REQUIRED LENDERS",
increase the Total Commitment Amount or the Percentage of any Lender or
otherwise subject any Lender to any additional obligation, shall be
made without the consent of each Lender;
(c) extend the due date for, or reduce the amount of, any payment or
prepayment of principal of or interest on any Loan or any other amount
payable hereunder or under any other Loan Document shall be made
without the consent of each Lender; or
(d) affect the interests, rights or obligations of the Agent qua the Agent
---
shall be made without consent of the Agent.
-36-
No failure or delay on the part of any Lender Party in exercising any power
or right under this Agreement or any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power
or right preclude any other or further exercise thereof or the exercise of
any other power or right. No notice to or demand on the Borrower in any
case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by any Lender Party under this
Agreement or any other Loan Document shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
10.2 NOTICES
All notices and other communications provided to any party hereto under
this Agreement or any other Loan Document shall be in writing and shall be
sent by hand delivery, courier delivery, telex (if the receiving party
shall have telex facilities) or facsimile and addressed or delivered to it
at its address set forth below its signature hereto and designated as its
"Address for Notices" or at such other address as may be designated by such
party in the relevant Loan Document or in a notice to the other parties.
Any notice, (a) if sent by hand delivery or courier delivery, shall be
deemed received when delivered and (b) if transmitted by telex or
facsimile, shall be deemed given when transmitted (answerback received at
both the beginning and end of the relevant transmission in the case of
telexes and transmission confirmed by the sending facsimile machine in the
case of facsimiles).
10.3 COSTS AND EXPENSES.
(a) The Borrower agrees to pay on demand all reasonable out-of-pocket
expenses (inclusive of United Kingdom Value Added Tax or any other
similar tax) of each Lender Party for the negotiation, preparation,
execution and delivery of this Agreement and each other Loan Document,
including schedules and exhibits, and any amendments, waivers,
consents, supplements or other modifications to this Agreement or any
other Loan Document as may from time to time hereafter be required
(including the reasonable fees and expenses of counsel to the Agent on
a full indemnity basis) from time to time incurred in connection
therewith), whether or not the transactions contemplated hereby are
consummated, and all reasonable out-of-pocket expenses (inclusive as
aforesaid) of the Lender Parties (including reasonable fees and
expenses of counsel to the Agent on a full indemnity basis, and any
stamp or other taxes incurred in connection with the preparation and
review of the form of any instrument relevant to this Agreement or any
other Loan Document, the consideration of legal questions relevant
hereto and thereto and the filing, recording, refiling or re-recording
of any Loan Document and all amendments or supplements to any thereof
and any and all other documents or instruments of further assurance
required to be filed or recorded or refiled or re-recorded by the terms
hereof or of any other Loan Document.
(b) The Borrower agrees to reimburse each Lender Party upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees
and expenses on a full indemnity basis and inclusive of United Kingdom
Value Added Tax or other similar tax incurred by such Lender Party in
connection with (i) the negotiation of any restructuring or "work-out",
whether or not consummated, of any Obligations, and (ii) the
enforcement of any Obligations.
-37-
10.4 INDEMNIFICATION
In consideration of the execution and delivery of this Agreement by each
Lender Party and the extension of the Commitments, the Borrower hereby
indemnifies, exonerates and holds each Lender Party and each of its
officers, directors, shareholders, employees and agents (the "INDEMNIFIED
PARTIES") free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages and expenses in
connection therewith, including reasonable attorneys' fees and
disbursements on a full indemnity basis (the "INDEMNIFIED LIABILITIES"),
incurred by any of the Indemnified Parties as a result of, or arising out
of, or relating to:
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement and any other Loan
Document by any of the Indemnified Parties (including any action
brought by or on behalf of either Obligor as the result of any
determination by the Lenders pursuant to Article 5 not to fund the
----------
Loans);
(c) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the release by the Borrower of any
Hazardous Material; or
(d) the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging or releases or threatened releases
from, any real property owned or operated by the Borrower of any
Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, the Borrower,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under Applicable Law.
10.5 SURVIVAL
The obligations of the Borrower under Sections 3.3, 4.2, 4.3, 4.4, 4.6,
--------------------------------
10.3 and 10.4 and the obligations of the Lenders under Section 9.1, shall, in
- ------------- -----------
each case, survive any termination of this Agreement. The representations and
warranties made by the Borrower in this Agreement and the Guarantor in the
Guaranty Agreement shall survive the execution and delivery of this Agreement
and the Guaranty Agreement.
-38-
10.6 SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction.
10.7 HEADINGS
The various headings of this Agreement are inserted for convenience only
and shall not affect the meaning or interpretation of this Agreement or any
provisions hereof.
10.8 COUNTERPARTS, EFFECTIVENESS, ETC
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be executed by the Borrower and the Agent
and be deemed to be an original and all of which shall constitute together
but one and the same agreement. This Agreement shall become effective on
the date (the "EFFECTIVE DATE") when counterparts hereof executed on behalf
of the Borrower and each Lender (or notice thereof satisfactory to the
Agent) shall have been received by the Agent.
10.9 GOVERNING LAW, ENTIRE AGREEMENT
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) This Agreement and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede any prior agreements, written
or oral, with respect thereto.
10.10 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns; provided,
--------
however, that:
-------
(a) the Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of the Agent and all the
Lenders; and
(b) the rights of sale, assignment, and transfer of the Lenders are
subject to Section 10.11.
-------------
10.11 SALE AND TRANSFER OF LOANS; PARTICIPATIONS IN LOANS
Each Lender may assign, or sell participations in, its Loans and
Commitments to one or more other Persons in accordance with this Section.
10.11.1 ASSIGNMENTS
-39-
Any Lender, with notice to the Borrower and the other Lenders, may
assign and delegate to any of its Affiliates or to any other Lender or
to one or more commercial banks or other commercial lending
institutions (each Person described as being the Person from or to
whom such assignment and delegation is to be made, being hereinafter
referred to as an "ASSIGNOR LENDER" or "ASSIGNEE LENDER",
respectively), all or any fraction of such Lender's total Loans and
Commitment (which assignment and delegation shall be of a constant,
and not a varying, percentage of all the Assignor Lender's Loans and
Commitment) in a minimum aggregate amount of $5,000,000 and an
integral multiple of $1,000,000; provided however, that no such
-------- -------
assignment shall be made if, as a direct result thereof, the Borrower
would then immediately be under any obligation to pay any incremental
amount of the nature contemplated by Section 4.1, 4.2, 4.4, 4.5 or 4.6
-------------------------- ---
or under any obligation pursuant to any such Section to prepay all or
any portion of any Loan to be made by any proposed Assignee Lender;
and provided, further, however, that, the Borrower and the Agent shall
--------------------------
be entitled to continue to deal solely and directly with the Assignor
Lender in connection with the interests so assigned and delegated to
an Assignee Lender until:
(a) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the
Borrower and the Agent by such Assignor Lender and such Assignee
Lender;
(b) such Assignee Lender shall have executed and delivered to the
Borrower and the Agent a Lender Assignment Agreement, which shall
have been accepted by the Agent;
(c) the Agent shall have been provided with such other evidence as the
Agent may reasonably request in connection with any Approval
required or advisable in connection with such assignment and
delegation; and
(d) the processing fees (if any) described below shall have been paid.
From and after the date that the Agent accepts such Lender Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that
rights and obligations hereunder have been assigned and delegated to
such Assignee Lender in connection with such Lender Assignment
Agreement, shall have the rights and obligations of a Lender hereunder
and under the other Loan Documents and (y) the Assignor Lender, to the
extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement,
shall be released from its obligations hereunder and under the other
Loan Documents. Accrued interest on that part of the Loans assigned
to the Assignee Lender, and accrued fees in respect thereof, shall be
paid as provided in the Lender Assignment Agreement. Except in the
case where any such Assignee Lender is an Affiliate of such Assignor
Lender, such Assignor Lender or such Assignee Lender shall also pay a
processing fee to the Agent upon delivery of any Lender Assignment
Agreement in the amount of $1,500. Any attempted assignment and
delegation not made in accordance with this Section shall be null and
void.
The Agent will promptly notify the Borrower and the Lenders of the
accession of any Assignee Lender as aforesaid.
-40-
10.11.2 PARTICIPATIONS
Any Lender may at any time sell to one or more commercial banks or
other commercial lending institutions (each of such commercial banks
and other commercial lending institutions being herein called a
"PARTICIPANT") participating interests in any of the Loans,
Commitments or other interests of such Lender hereunder; provided,
however, that:
(a) no participation contemplated in this Section shall relieve such
Lender from its Commitment or its other obligations hereunder or
under any other Loan Document;
(b) such Lender shall remain solely responsible for the performance
of its Commitment and such other obligations;
(c) the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and each of the other Loan
Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree
with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in
Section 10.1(b) or (c); and
--------------- ---
(e) notwithstanding the final sentence of this Section the Borrower
shall not be required to pay any amount under Section 4.2, 4.3,
-----------------
4.4 or 4.6 that is greater than the amount which it would have
--- ---
been required to pay had no participating interest been sold.
The Borrower and each Lender acknowledges and agrees that each
Participant, for purposes of Sections 4.2, 4.3,4.4, 4.6, 4.7, 4.10,
--------------------------------------
10.3 and 10.4, shall be considered a Lender.
---- ----
10.12 FORUM SELECTION AND CONSENT TO JURISDICTION; WAIVER OF IMMUNITY
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER SHALL BE BROUGHT AND
MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE
BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE
ANY PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF ANY SUCH
-41-
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY
FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE
BORROWER HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEM WITH OFFICES
ON THE DATE HEREOF AT 1633 BROADWAY, NEW YORK, NEW YORK 10019 AS ITS
AGENT FOR SERVICE OF PROCESS IN NEW YORK (HEREIN WITH RESPECT TO THE
BORROWER, ITS "PROCESS AGENT"). SERVICE OF PROCESS MAY BE MADE UPON THE
BORROWER BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO IT IN CARE
OF THE PROCESS AGENT AT THE PROCESS AGENT'S RELEVANT ADDRESS AND THE
BORROWER HEREBY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
IN ANY SUIT, ACTION OR PROCEEDING IN NEW YORK ARISING OUT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT BY THE MAILING OF COPIES OF SUCH
PROCESS TO IT AT ITS ADDRESS FOR NOTICES SET FORTH BELOW ITS SIGNATURE
HERETO. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.13 WAIVER OF JURY TRIAL
THE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN), OR ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER. THE
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF
EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT.
-42-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officers thereunto duly authorized as of the day
and year first above written.
AMAX GOLD INC., as the Borrower
By: Leland O. Erdahl
Name Printed: LELAND O. ERDAHL
Title: VICE PRESIDENT & CHIEF FINANCIAL
OFFICER
Address for Notices: 9100 East Mineral Circle
Englewood
Colorado 80112
U.S.A.
Facsimile No.: 1-303-643-5507
Attention: Chief Financial Officer
-43-
Commitment Amount
- -----------------
U.S.$40,000,000 STANDARD BANK LONDON LIMITED
individually as a Lender and as
the Agent
By: S. L. Sharpe
Name Printed: S. L. SHARPE
Title: ASSISTANT GENERAL MANAGER
By: K. Russell
Name Printed: KELVIN RUSSELL
Title: ASSISTANT GENERAL MANAGER
Address
for Notices: Cannon Bridge House
25 Dowgate Hill
London EC4R 2SB
Facsimile No: 0171 815 3099
Attention: Steven L.C. Sharpe
Lending
Office: Barclays Bank plc
75 Wall Street
New York, New York
U.S.A.
For the account of: Standard Bank London Limited
A/C No.: 050-03587-8
Facsimile No.: 0171-815 4284
Attention: Mark Turner
-44-
EXHIBIT A
to
Loan Agreement
BORROWING REQUEST
Standard Bank London Limited
Cannon Bridge House
25 Dowgate Hill
London EC4R 2SB
England
Attention: Mark Turner
RE: AMAX GOLD INC. LOAN AGREEMENT
-----------------------------
Dear Sirs
This Borrowing Request (this "REQUEST") is delivered to you pursuant to Section
-------
2.2 of the Loan Agreement dated as of December 18, 1997 (the "LOAN AGREEMENT")
- ---
between (1) Amax Gold Inc., a Delaware corporation (the "BORROWER"), (2) the
banks and other financial institutions party thereto (the "LENDERS"), and (3)
Standard Bank London Limited, as Agent for the Lender Parties. Unless otherwise
defined herein or the context otherwise requires, terms used herein have the
meanings provided in, and shall be interpreted in accordance with, the Loan
Agreement.
The Borrower hereby requests that on [ ] (the
"BORROWING DATE") Loans in the principal amount of $______________________ be
made to the Borrower for an Interest Period of [one/three/six] months.
The Borrower, individually for itself and for the Guarantor and with respect to
matters hereinbelow relating to it and the Guarantor, certifies, represents and
warrants, as may be relevant, to the Lender Parties that on the date of this
Request (and both immediately before and after giving effect to the Loans to be
made pursuant hereto but, if any Default of the nature of Section 8.1.5 of the
-------------
Loan Agreement shall have occurred with respect to any other Indebtedness,
without giving effect to the application, directly or indirectly, of the
proceeds of such Loans to such other Indebtedness):
(a) the representations and warranties of the Borrower set forth in
Article 6 of the Loan Agreement and the Guarantor set forth in
---------
Article 3 of the Guaranty Agreement are and shall be true and correct
---------
with the same effect as if then made (unless stated to relate solely
to an earlier date, in which case such representations and warranties
were true and correct as of such earlier date); and
(b) no Default has occurred and is continuing or will have occurred and
be continuing.
-1-
The Borrower hereby agrees that if prior to the Borrowing Date any matter
certified or warranted to herein by it will not be true and correct at such time
as if then made, it will immediately so notify the Agent. Except to the extent,
if any, that prior to the Borrowing Date, the Administrative Agent shall receive
written notice to the contrary from the Borrower, each matter certified or
warranted to herein shall be deemed to be certified or warranted, as the case
may be, at the Borrowing Date as if then made.
The Borrower hereby requests that the proceeds of the Loans requested hereby be
credited into the following account of the Borrower: [ ].
The Borrower has caused this Request to be executed and delivered, and the
certifications, representations and warranties contained herein to be made, by
its duly Authorized Representative this [ ] day of December, 1997.
AMAX GOLD INC.
By:______________________________________________
Name Printed: ______________________________
Title: ____________________________________
-2-
EXHIBIT B
to
Loan Agreement
INTEREST PERIOD SELECTION NOTICE
__________________________, [199./200.]
Standard Bank London Limited
Cannon Bridge House
25 Dowgate Hill
London EC4R 2SB
England
Attention: Mark Turner
RE: AMAX GOLD INC. LOAN AGREEMENT
-----------------------------
Dear Sirs
This Interest Period Selection Notice (this "NOTICE") is delivered to you
pursuant to Section 2.4 of the Loan Agreement dated as of December 18, 1997 (the
-----------
"LOAN AGREEMENT") among (1) Amax Gold Inc., a Delaware corporation (the
"BORROWER"), (2) the banks and other financial institutions party thereto (the
"LENDERS") and (3) Standard Bank London Limited, as Agent for the Lender
Parties. Unless otherwise defined herein or the context otherwise requires,
terms used herein have the meanings provided in, and shall be interpreted in
accordance with, the Loan Agreement.
The Borrower hereby requests that on [ ] [199./200.] [all]/[a portion
of] the Loans, presently in the principal amount of [$ ]/1/ be
continued with an Interest Period of [one/three/six] months.
The Borrower, individually for itself and for the Guarantor and with respect to
matters hereinbelow relating to it and the Guarantor, certifies, represents and
warrants, as may be relevant, to the Lender Parties that on the date of this
Notice (and both immediately before and after giving effect to the continuation
of the Loans to be made pursuant hereto):
(a) the representations and warranties of the Borrower set forth in
Article 6 of the Loan Agreement and the Guarantor set forth in
---------
Article 3 of the Guaranty Agreement are and shall be true and correct
---------
with the same effect as if then made (unless stated to relate solely
to an earlier date, in which case such representations and warranties
were true and correct as of such earlier date); and
- --------------------------
/1/ Partial conversions only permitted in multiples of $5,000,000.
-1-
(b) no Default has occurred and is continuing or will have occurred and
be continuing.
The Borrower hereby agrees that if prior to the continuation requested hereby
any matter certified or warranted to herein by it will not be true and correct
at such time as if then made, it will immediately so notify the Agent. Except to
the extent, if any, that prior to the time of the continuation requested hereby,
the Agent shall receive written notice to the contrary from the Borrower, each
matter certified or warranted to herein shall be deemed to be certified or
warranted, as the case may be, at the date of the continuation subject of this
Notice as if then made.
The Borrower has caused this Notice to be executed and delivered, and the
certifications, representations and warranties contained herein to be made, by
its duly Authorized Representative this [ ] day of [ ], [199./200.].
AMAX GOLD INC.
By: ______________________________
Name Printed: ____________________
Title: __________________________
-2-
EXHIBIT C
to
Loan Agreement
LENDER ASSIGNMENT AGREEMENT
, [199./200.]
------------------------
Amax Gold Inc.
9100 East Mineral Circle
Englewood
Colorado 80112
U.S.A.
Standard Bank London Limited
Cannon Bridge House
25 Dowgate Hill
London EC4R 2SB
England
Attention: Steve Sharpe
RE: AMAX GOLD INC. LOAN AGREEMENT
-----------------------------
Dear Sirs
We refer to the Loan Agreement, dated as of December 18, 1997 (the "LOAN
AGREEMENT") among (1) Amax Gold Inc., a Delaware corporation (the "BORROWER"),
(2) the banks and other financial institutions party thereto (the "LENDERS") and
(3) Standard Bank London Limited, as Agent for the Lender Parties. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in, and shall be interpreted in accordance with, the
Loan Agreement.
This Lender Assignment Agreement (this "AGREEMENT") is delivered to you pursuant
to Section 10.11.1(b) of the Loan Agreement and also constitutes notice to each
-------------------
of you, pursuant to clause Section 10.11.1(a) of the Loan Agreement, of the
-------------------
assignment and delegation to [name of commercial lender or other financial
institution] (the "ASSIGNEE LENDER") of a [Commitment Amount in the amount of
$ ] [principal amount of Loans in the amount of $_________]
---------------------
under the Loan Agreement on the date hereof. After giving effect to the
foregoing assignment and delegation, the Commitment Amount and principal amount
of Loans, to the extent applicable, of each of the Assignor Lender and the
Assignee Lender for the purposes of the Loan Agreement shall be as set forth
opposite each such Person's name on the signature pages hereof.
[Add paragraph describing agreement with respect to accrued interest and fees to
date of assignment.]
-1-
The Assignee Lender hereby acknowledges and confirms that it has received a copy
of the Loan Agreement and the other Loan Documents, together with copies of the
other documents which were required to be delivered under the Loan Agreement as
a condition to the making of the Loans thereunder (collectively, the "CONDITION
PRECEDENT DOCUMENTS"). The Assignee Lender further confirms and agrees that in
becoming a Lender and in extending its Commitments, if any, and making its
Loans, if any, under the Loan Agreement (and without prejudice to the provisions
of Article 9 of the Loan Agreement), such actions have and will be made without
---------
recourse to, or representation or warranty by any Lender Party.
The Assignee Lender additionally confirms that, prior to executing this
Agreement, it has independently of the Assignor Lender and each other Person,
and based on the Condition Precedent Documents and such other documents,
information and investigations as it has deemed appropriate, made its own
decision to enter into this Agreement and assume the Assignor Lender's
Commitments (if any) and outstanding Loans and that it will, independently of
the Assignor Lender and each other Person, and based on such other documents,
information and investigations as it shall deem appropriate at any time,
continue to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under any Loan
Document.
For the avoidance of doubt, the Assignor Lender makes no representation of any
kind under this Agreement, other than that it is transferring its interest in
its Commitments (if any) and its outstanding Loans to the Assignee Lender, free
and clear of any Liens.
Except as otherwise provided in the Loan Agreement, effective as of the date of
acceptance of this Agreement by the Administrative Agent:
(a) the Assignee Lender:
(i) shall be deemed automatically to have become a party to the Loan
Agreement and each other relevant Loan Document and have all the
rights and obligations of a "Lender" under the Loan Agreement and the
other Loan Documents as if it were an original signatory thereto to
the extent of its Percentage (determined after giving effect to this
Agreement); and
(ii) agrees to be bound by the terms and conditions set forth in the Loan
Agreement and the other Loan Documents as if it were an original
signatory thereto; and
(b) the Assignor Lender shall be released from its obligations under the Loan
Agreement and the other relevant Loan Documents to the extent of the
Percentage specified in the second paragraph hereof.
The Assignor Lender and the Assignee Lender hereby agree that the [Assignor
Lender] [Assignee Lender]/1/ will pay to the Agent the processing fee referred
to in Section 10.11.1 of the Loan Agreement upon the delivery hereof.
- ------------------------------------------
/1/ Delete as appropriate.
-2-
The Assignee Lender hereby advises each of you of the following administrative
details and requests the Administrative Agent to acknowledge receipt of this
Agreement:
(A) Address for Notices:
Telex No.:
Facsimile No.:
Attention:
Lending Office:
Telex No.:
Facsimile No.:
Attention:
(B) Payment Instructions:
This Agreement may be executed by the Assignor Lender and Assignee Lender in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
This Agreement shall be deemed to be a contract made under and governed by the
internal laws of the State of New York.
Commitment Amount [ASSIGNOR LENDER]
- -----------------
$ By: ................
- ---------------------------- Name Printed: ................
Title: ................
Principal Amount of Loans
- ----------------------------
$
- ----------------------------
Commitment Amount [ASSIGNEE LENDER]
- ----------------------------
-3-
$ By: ...............
- ---------------------------- Name Printed: ...............
Title: ...............
Principal Amount of Loans
- ----------------------------
$
- ----------------------------
-4-
Accepted and Acknowledged this . day of . [199.]/[200.]
STANDARD BANK LONDON LIMITED
By: ....................................
Name Printed: ....................................
Title: ....................................
By: ....................................
Name Printed: ....................................
Title: ....................................
-5-
EXHIBIT D
to
Loan Agreement
PROCESS AGENT ACCEPTANCE
Standard Bank London Limited
Cannon Bridge House
25 Dowgate Hill
London EC4R 2SB
England
Attention: Steve Sharpe
RE: AMAX GOLD INC. LOAN AGREEMENT
- ---------------------------------
Dear Sirs,
This Process Agent Acceptance (the "ACCEPTANCE") is delivered to you pursuant to
Section 5.3 of the Loan Agreement, dated as of December 18 1997 (the "LOAN
- ------------
AGREEMENT"), among (1) Amax Gold Inc., a Delaware corporation (the "BORROWER"),
(2) the banks and other financial institutions party thereto (the "LENDERS") and
(3) Standard Bank London Limited, as Agent for the Lenders. Unless otherwise
defined herein or the context otherwise requires, terms used herein have the
meanings provided in, and shall be interpreted in accordance with, the Loan
Agreement.
Attached hereto are copies of letters in which each of the Borrower and the
Guarantor have appointed the undersigned CT Corporation, located at 1633
Broadway, New York, New York 10019 as agent for service of process (in such
capacity, the "PROCESS AGENT") in connection with each Loan Document listed
below to which such Person is a party in each case as such process may be served
for purposes of any proceeding in any state court of the State of New York or
the United States District Court for the Southern District of New York. The
appointments, each of which has been accepted by the undersigned, are as
follows:
(a) the Borrower in connection with the Loan Agreement; and
(b) the Guarantor in connection with the Guaranty Agreement.
The term of each of the above appointments is for a period of six (6) years
commencing on the date of execution of this Acceptance. The undersigned
acknowledges that it has received all fees from the relevant Persons for each of
the foregoing appointments required to be paid for the entire term of this
Acceptance.
We undertake to inform you of any circumstance whereby any of the foregoing
Persons may be in breach of its obligations with respect to its appointment of
the undersigned as Process Agent.
Very truly yours,
CT CORPORATION
By:
Name Printed:
Title:
Accepted this day of , 1997
STANDARD BANK LONDON LIMITED
By:
Name Printed:
Title:
By:
Named Printed:
Title: