EXHIBIT 10.2
EXECUTION COPY
$180,000,000
CREDIT AGREEMENT
dated as of August 3, 2004,
among
STILLWATER MINING COMPANY,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO,
as the Lenders,
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent,
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent,
and
TD SECURITIES (USA) INC.,
as the Lead Arranger.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................... 2
SECTION 1.1. Defined Terms............................................................... 2
SECTION 1.2. Use of Defined Terms........................................................ 40
SECTION 1.3. Cross-References; Interpretation............................................ 40
SECTION 1.4. Accounting and Financial Determinations..................................... 40
ARTICLE II COMMITMENTS, BORROWING AND ISSUANCe PROCEDURES, NOTES AND LETTERS OF CREDIT............... 41
SECTION 2.1. Commitments................................................................. 41
SECTION 2.1.1. Revolving Loan Commitment........................................... 41
SECTION 2.1.2. Letter of Credit Commitment......................................... 41
SECTION 2.1.3. Term Loan Commitment................................................ 41
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans..................... 41
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit......... 42
SECTION 2.1.6. Incremental Term Loan Commitment.................................... 42
SECTION 2.2. Reduction of the Commitment Amounts......................................... 42
SECTION 2.3. Borrowing Procedures........................................................ 42
SECTION 2.3.1. Borrowing Procedure................................................. 43
SECTION 2.4. Continuation and Conversion Elections....................................... 43
SECTION 2.5. Funding..................................................................... 43
SECTION 2.6. Issuance Procedures......................................................... 44
SECTION 2.6.1. Other Lenders' Participation........................................ 44
SECTION 2.6.2. Disbursements....................................................... 45
SECTION 2.6.3. Reimbursement....................................................... 45
SECTION 2.6.4. Deemed Disbursements................................................ 45
SECTION 2.6.5. Nature of Reimbursement Obligations................................. 46
SECTION 2.6.6. Credit-Linked Deposit Account....................................... 46
SECTION 2.6.7. Return of Credit-Linked Deposits.................................... 47
SECTION 2.7. Loan Accounts; Notes........................................................ 48
SECTION 2.8. Increase in Term Loan Commitments........................................... 48
SECTION 2.9. Increase in Revolving Loan Commitments...................................... 51
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TABLE OF CONTENTS
(Continued)
PAGE
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES................................................ 52
SECTION 3.1. Repayments and Prepayments; Application..................................... 52
SECTION 3.1.1. Repayments and Prepayments.......................................... 52
SECTION 3.1.2. Application......................................................... 54
SECTION 3.2. Interest Provisions......................................................... 55
SECTION 3.2.1. Rates............................................................... 55
SECTION 3.2.2. Post-Maturity Rates................................................. 55
SECTION 3.2.3. Payment Dates....................................................... 55
SECTION 3.3. Fees........................................................................ 56
SECTION 3.3.1. Commitment Fee...................................................... 56
SECTION 3.3.2. Agent's Fee......................................................... 56
SECTION 3.3.3. Letter of Credit Fee................................................ 56
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS.................................................... 57
SECTION 4.1. LIBO Rate Lending Unlawful.................................................. 57
SECTION 4.2. Deposits Unavailable........................................................ 57
SECTION 4.3. Increased LIBO Rate Loan Costs, etc......................................... 57
SECTION 4.4. Funding Losses.............................................................. 58
SECTION 4.5. Increased Capital Costs..................................................... 58
SECTION 4.6. Taxes....................................................................... 59
SECTION 4.7. Payments, Computations, etc................................................. 61
SECTION 4.8. Sharing of Payments......................................................... 61
SECTION 4.9. Setoff...................................................................... 62
SECTION 4.10. Change of Lending Office.................................................... 62
SECTION 4.11. Replacement of Lenders...................................................... 62
SECTION 4.12. Existing Letters of Credit.................................................. 63
ARTICLE V CONDITIONS TO CREDIT EXTENSIONS........................................................... 64
SECTION 5.1. Initial Credit Extension.................................................... 64
SECTION 5.1.1. Resolutions, etc.................................................... 64
SECTION 5.1.2. Closing Date Certificate............................................ 64
SECTION 5.1.3. Delivery of Notes................................................... 64
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TABLE OF CONTENTS
(Continued)
PAGE
SECTION 5.1.4. Payment of Outstanding Indebtedness, etc............................ 65
SECTION 5.1.5. Closing Fees, Expenses, etc......................................... 65
SECTION 5.1.6. Financial Information, etc.......................................... 65
SECTION 5.1.7. Compliance Certificate.............................................. 65
SECTION 5.1.8. Due Diligence by Mining Consultant.................................. 65
SECTION 5.1.9. Mine Plans.......................................................... 66
SECTION 5.1.10. Solvency, etc....................................................... 66
SECTION 5.1.11. Security Agreements................................................. 66
SECTION 5.1.12. Patent Security Agreement, Copyright Security Agreement and
Trademark Security Agreement........................................ 67
SECTION 5.1.13. Mortgage............................................................ 67
SECTION 5.1.14. Subsidiary Guaranty................................................. 68
SECTION 5.1.15. Insurance........................................................... 68
SECTION 5.1.16. Consents............................................................ 68
SECTION 5.1.17. Opinions of Counsel................................................. 69
SECTION 5.1.18. Consents and Acknowledgements....................................... 69
SECTION 5.1.19. Supply Contract Counterparty Notices................................ 69
SECTION 5.1.20. Credit-Linked Revolving Loan Lenders................................ 69
SECTION 5.1.21. Rating of Loans..................................................... 69
SECTION 5.1.22. Norilsk Palladium Depository Arrangement............................ 69
SECTION 5.1.23. Information pursuant to Terrorism Laws.............................. 70
SECTION 5.2. All Credit Extensions....................................................... 70
SECTION 5.2.1. Compliance with Warranties, No Default, etc......................... 70
SECTION 5.2.2. Credit Extension Request, etc....................................... 70
SECTION 5.2.3. Letters of Credit................................................... 70
SECTION 5.2.4. Satisfactory Legal Form............................................. 70
ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................................ 71
SECTION 6.1. Organization, etc........................................................... 71
SECTION 6.2. Due Authorization, Non-Contravention, etc................................... 71
SECTION 6.3. Government Approval, Regulation, Compliance with Laws, etc.................. 71
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TABLE OF CONTENTS
(Continued)
PAGE
SECTION 6.4. Validity, etc............................................................... 72
SECTION 6.5. Financial Information....................................................... 72
SECTION 6.6. No Material Adverse Change.................................................. 72
SECTION 6.7. Litigation, Labor Controversies, etc........................................ 73
SECTION 6.8. Subsidiaries................................................................ 73
SECTION 6.9. Ownership of Properties..................................................... 73
SECTION 6.10. Taxes....................................................................... 74
SECTION 6.11. Pension and Welfare Plans................................................... 75
SECTION 6.12. Environmental Warranties.................................................... 75
SECTION 6.13. Accuracy of Information..................................................... 76
SECTION 6.14. Regulations U and X......................................................... 77
SECTION 6.15. Good Neighbor Agreement..................................................... 77
SECTION 6.16. Status of Obligations as Senior Indebtedness, etc........................... 77
SECTION 6.17. Mining Rights............................................................... 77
SECTION 6.18. Technology.................................................................. 78
SECTION 6.19. Supply Contracts............................................................ 78
SECTION 6.20. Labor Matters............................................................... 78
SECTION 6.21. Utilities................................................................... 79
SECTION 6.22. Solvency.................................................................... 79
ARTICLE VII COVENANTS................................................................................. 79
SECTION 7.1. Affirmative Covenants....................................................... 79
SECTION 7.1.1. Financial Information, Reports, Notices, etc........................ 79
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc................. 82
SECTION 7.1.3. Maintenance of Properties........................................... 82
SECTION 7.1.4. Insurance........................................................... 83
SECTION 7.1.5. Books and Records; Annual Assessment Meeting........................ 85
SECTION 7.1.6. Environmental Law Covenant.......................................... 86
SECTION 7.1.7. Use of Proceeds..................................................... 86
SECTION 7.1.8. Additional Real Property............................................ 87
SECTION 7.1.9. Future Subsidiaries................................................. 88
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TABLE OF CONTENTS
(Continued)
PAGE
SECTION 7.1.10. Additional Collateral............................................... 91
SECTION 7.1.11. Provision of Staff.................................................. 91
SECTION 7.1.12. Supply Contracts.................................................... 91
SECTION 7.1.13. Material Supply Contracts, Additional Supply Contracts; Counterparty
Notices............................................................. 91
SECTION 7.1.14. Economic Development Revenue Bond Tax Event......................... 91
SECTION 7.1.15. Interest Rate Protection............................................ 92
SECTION 7.1.16. Maintenance of Ratings.............................................. 92
SECTION 7.1.17. Norilsk Palladium................................................... 92
SECTION 7.2. Negative Covenants.......................................................... 92
SECTION 7.2.1. Business Activities................................................. 92
SECTION 7.2.2. Indebtedness........................................................ 93
SECTION 7.2.3. Liens............................................................... 95
SECTION 7.2.4. Financial Condition and Operations.................................. 97
SECTION 7.2.5. Investments......................................................... 98
SECTION 7.2.6. Restricted Payments, etc............................................ 99
SECTION 7.2.7. Capital Expenditures, etc.......................................... 100
SECTION 7.2.8. No Prepayment of Subordinated Debt or Permitted Revenue Bond
Indebtedness....................................................... 101
SECTION 7.2.9. Stock of Subsidiaries.............................................. 101
SECTION 7.2.10. Consolidation, Merger, etc......................................... 102
SECTION 7.2.11. Permitted Dispositions............................................. 102
SECTION 7.2.12. Modification of Certain Agreements................................. 103
SECTION 7.2.13. Transactions with Affiliates....................................... 103
SECTION 7.2.14. Restrictive Agreements, etc........................................ 104
SECTION 7.2.15. Sale and Leaseback................................................. 104
SECTION 7.2.16. Commodity Hedging; Purchase of Platinum and Palladium.............. 105
SECTION 7.2.17. Take or Pay Contracts.............................................. 105
SECTION 7.2.18. Certain Lease Arrangements......................................... 106
SECTION 7.2.19. Contracts.......................................................... 106
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TABLE OF CONTENTS
(Continued)
PAGE
SECTION 7.2.20. Accounting Changes................................................. 106
SECTION 7.2.21. Norilsk Metal Agreements; Additional Supply Contracts.............. 106
ARTICLE VIII EVENTS OF DEFAULT........................................................................ 106
SECTION 8.1. Listing of Events of Default............................................... 106
SECTION 8.1.1. Non-Payment of Obligations......................................... 106
SECTION 8.1.2. Breach of Warranty................................................. 107
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations............... 107
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations................. 107
SECTION 8.1.5. Default on Other Indebtedness...................................... 107
SECTION 8.1.6. Judgments.......................................................... 107
SECTION 8.1.7. Pension Plans...................................................... 108
SECTION 8.1.8. Change in Control.................................................. 108
SECTION 8.1.9. Bankruptcy, Insolvency, etc........................................ 108
SECTION 8.1.10. Impairment of Security, etc........................................ 109
SECTION 8.1.11. Failure of Subordination........................................... 109
SECTION 8.1.12. Non-Performance or Impairment of Material Supply Contracts......... 109
SECTION 8.1.13. Mine Plans; Proven and Probable Reserves........................... 109
SECTION 8.1.14. Regulatory Action; Expropriation................................... 110
SECTION 8.1.15. Abandonment; Mining Rights......................................... 110
SECTION 8.2. Action if Bankruptcy....................................................... 110
SECTION 8.3. Action if Other Event of Default........................................... 111
ARTICLE IX THE ADMINISTRATIVE AGENT................................................................. 111
SECTION 9.1. Actions.................................................................... 111
SECTION 9.2. Funding Reliance, etc...................................................... 112
SECTION 9.3. Exculpation................................................................ 112
SECTION 9.4. Successor.................................................................. 112
SECTION 9.5. Loans by the Administrative Agent.......................................... 113
SECTION 9.6. Credit Decisions........................................................... 113
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TABLE OF CONTENTS
(Continued)
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SECTION 9.7. Copies, etc................................................................ 113
SECTION 9.8. Reliance by Administrative Agent........................................... 114
SECTION 9.9. Defaults................................................................... 114
SECTION 9.10. Application of Proceeds.................................................... 114
SECTION 9.11. Sub-Agents................................................................. 115
SECTION 9.12. Release of Collateral...................................................... 116
SECTION 9.13. Lender Hedging Agreements; Release of Liens................................ 116
SECTION 9.14. Documentation Agent........................................................ 117
SECTION 9.15. Posting of Approved Electronic Communications.............................. 117
ARTICLE X MISCELLANEOUS PROVISIONS................................................................. 118
SECTION 10.1. Waivers, Amendments, etc................................................... 118
SECTION 10.2. Notices.................................................................... 121
SECTION 10.3. Payment of Costs and Expenses.............................................. 121
SECTION 10.4. Indemnification............................................................ 122
SECTION 10.5. Survival................................................................... 123
SECTION 10.6. Severability............................................................... 123
SECTION 10.7. Headings................................................................... 123
SECTION 10.8. Execution in Counterparts, Effectiveness, etc.............................. 123
SECTION 10.9. Governing Law; Entire Agreement............................................ 123
SECTION 10.10. Successors and Assigns..................................................... 124
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes.... 124
SECTION 10.11.1. Assignments........................................................ 124
SECTION 10.11.2. Participations..................................................... 127
SECTION 10.11.3. Revolving Loan Lender Downgrade; Lender Replacement................ 128
SECTION 10.11.4. Register........................................................... 129
SECTION 10.12. Other Transactions......................................................... 129
SECTION 10.13. Independence of Covenants.................................................. 129
SECTION 10.14. Forum Selection and Consent to Jurisdiction................................ 129
SECTION 10.15. Waiver of Jury Trial....................................................... 130
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TABLE OF CONTENTS
(Continued)
PAGE
SECTION 10.16. Patriot Act Notification................................................... 131
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SCHEDULES AND EXHIBITS
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages; LIBOR Office; Domestic Office
SCHEDULE III - Excluded Real Property
SCHEDULE IV - Credit-Linked Deposits
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of Counterparty Notice
EXHIBIT F-2 - Form of Supply Contract Counterparty Notice
EXHIBIT G - Form of Borrower Security Agreement
EXHIBIT H - Form of Subsidiary Security Agreement
EXHIBIT I - Form of Mortgage
EXHIBIT J - Form of Subsidiary Guaranty
EXHIBIT K - Form of Intercompany Subordination Agreement
EXHIBIT L - Form of Lender Assignment Agreement
EXHIBIT M - Form of Officer's Solvency Certificate
EXHIBIT N-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT N-2 - Form of Title Opinion
EXHIBIT N-3 - Form of Opinion of Montana Counsel
to the Obligors
ix
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 3, 2004, is among STILLWATER
MINING COMPANY, a Delaware corporation (the "Borrower"), the various financial
institutions from time to time parties hereto (the "Lenders"), U.S. BANK
NATIONAL ASSOCIATION, as documentation agent (in such capacity, the
"Documentation Agent"), TORONTO DOMINION (TEXAS), INC. ("TD"), as administrative
agent (in such capacity, the "Administrative Agent"), and TD SECURITIES (USA)
INC. ("TDSI"), as lead arranger.
W I T N E S S E T H:
WHEREAS, the Borrower is engaged in the development, extraction,
processing and refining of palladium, platinum, and associated metals from the
J-M Reef (capitalized terms used in these recitals and not defined in these
recitals to have the meanings set forth in Section 1.1 below);
WHEREAS, the Borrower operates an underground mining and surface milling
complex in Nye, Montana (the "Nye Mine") and an underground mining and surface
milling complex within thirty-five miles of Big Timber, Montana (the "East
Boulder Mine"; each of the Nye Mine and the East Boulder Mine, a "Mine" and,
collectively, the "Mines") and processes the concentrate provided at such
complexes and Secondary Materials received by it at its metallurgical processing
facilities at Columbus, Montana (such processing facilities, together with the
Mines, the "Facilities");
WHEREAS, the Borrower intends to refinance (the "Existing CA Refinancing")
all of its existing Indebtedness in an amount approximately equal to
$127,000,000 under that certain Credit Agreement dated February 23, 2001 (as
amended or otherwise modified, the "Existing Credit Facility"), among the
Borrower, the lenders party thereto and Toronto Dominion (Texas), Inc., as
administrative agent thereunder;
WHEREAS, in order to consummate the Existing CA Refinancing, to pay fees
and expenses associated therewith and to provide for the working capital needs
and general corporate purposes of the Borrower, the Borrower has requested that
the Lenders provide (i) Term Loan Commitments pursuant to which Term Loans in an
aggregate principal amount not exceeding $140,000,000 will be made in a single
Borrowing on the Closing Date and (ii) Revolving Loan Commitments (to include
availability for Letters of Credit) pursuant to which Revolving Loans in an
aggregate principal amount not exceeding $40,000,000 (which amounts may be
increased pursuant to the terms hereof) will be made from time to time prior to
the Revolving Loan Commitment Termination Date; and
WHEREAS, the Lenders and the Issuers are willing, on the terms and subject
to the conditions hereinafter set forth, to extend the Commitments and make
Loans to the Borrower and issue (or participate in) Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquisition" means the acquisition, by purchase or otherwise, of all or
substantially all of the assets (or assets constituting all or substantially all
of a business or line of business) of any Person, whether such acquisition is
direct or indirect, including through the acquisition of the business of, or
Capital Stock of, such Person.
"Additional Claims" is defined in Section 6.9(b).
"Additional Supply Contract Counterparty" means each Person which enters
into an Additional Supply Contract with the Borrower or any Subsidiary.
"Additional Supply Contracts" means each contract with a term of one year
or more, other than a Material Supply Contract, pursuant to which the Borrower
or any Subsidiary agrees to deliver 75,000 ounces or more of palladium or
platinum (excluding sales of Secondary Materials) during any 365-day period.
"Administrative Agent" is defined in the preamble and includes each other
Person appointed as the successor Administrative Agent pursuant to Section 9.4.
"Affected Lender" is defined in Section 4.11.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. "Control" of a Person means the power, directly or indirectly,
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors, managing
members or general partners (as applicable); or
(b) to direct or cause the direction of the management and policies
of such Person (whether by contract or otherwise).
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter amended, supplemented, amended
and restated or otherwise modified from time to time and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum (rounded upward, if necessary,
to the next highest 1/16 of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
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(b) the Federal Funds Rate in effect on such day plus 1/2 of 1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrower
and the Lenders of changes in the Alternate Base Rate; provided that the failure
to give such notice shall not affect the Alternate Base Rate in effect after
such change.
"Annual Palladium Production" means, with respect to any calendar year
ending on December 31 of such year, the Palladium Production for such year.
"Annual Platinum Production" means, with respect to any calendar year
ending on December 31 of such year, the Platinum Production for such year.
"Applicable Commitment Fee" means at all times, with respect to the fee
payable pursuant to Section 3.3.1, 75.0 basis points per annum.
"Applicable Margin" means at all times during the applicable periods set
forth below:
(a) with respect to Revolving Loans, from the Effective Date to (but
excluding) the date upon which a Compliance Certificate pursuant to clause
(c) of Section 7.1.1 for the second full Fiscal Quarter to have commenced
and ended after the Effective Date is delivered by the Borrower to the
Administrative Agent, with respect to the unpaid principal amount of each
(i) Revolving Loan maintained as a Base Rate Loan, 200.0 basis
points per annum; and
(ii) Revolving Loan maintained as a LIBO Rate Loan, 300.0
basis points per annum;
(b) with respect to Revolving Loans, at all times from the date upon
which the Compliance Certificate described in the immediately preceding
clause (a) is delivered, with respect to the unpaid principal amount of
each Revolving Loan, the rate determined by reference to the applicable
Debt to EBITDA Ratio and at the applicable percentage per annum set forth
below under the column entitled "Applicable Margin for Base Rate Loans",
in the case of such Loans made or maintained as Base Rate Loans, or by
reference to the applicable Debt to EBITDA Ratio and at the applicable
percentage per annum set forth below under the column entitled "Applicable
Margin for LIBO Rate Loans", in the case of such Loans made or maintained
as LIBO Rate Loans:
Applicable Margin for
Debt to EBITDA LIBO Rate Applicable Margin for
Ratio Loans Base Rate Loans
-------------- ----- ---------------
> or = 3.00:1 300 basis points 200 basis points
> or = 2.50:1 and < 3.00:1 275 basis points 175 basis points
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Applicable Margin for
Debt to EBITDA LIBO Rate Applicable Margin for
Ratio Loans Base Rate Loans
-------------- ----- ---------------
> or = 2.00:1 and < 2.50:1 250 basis points 150 basis points
< 2.00:1 225 basis points 125 basis points
(c) with respect to Term Loans, at all times, 225 basis points per
annum, in the case of Term Loans maintained as Base Rate Loans, and 325
basis points per annum, in the case of Term Loans maintained as LIBO Rate
Loans.
The Debt to EBITDA Ratio used to compute the Applicable Margin for Revolving
Loans shall be the Debt to EBITDA Ratio set forth in the Compliance Certificate
most recently delivered by the Borrower to the Administrative Agent; changes in
the Applicable Margin resulting from a change in the Debt to EBITDA Ratio shall
become effective upon delivery by the Borrower to the Administrative Agent of a
new Compliance Certificate pursuant to clause (c) of Section 7.1.1. If the
Borrower shall fail to deliver a Compliance Certificate within 45 days after the
end of any Fiscal Quarter (or within 90 days, in the case of the last Fiscal
Quarter of the Fiscal Year), the Applicable Margin from and including the 46th
(or 91st, as the case may be) day after the end of such Fiscal Quarter to, but
not including, the date that the Borrower delivers to the Administrative Agent a
Compliance Certificate shall conclusively equal the highest Applicable Margin
set forth above.
"Assignee Lender" is defined in Section 10.11.1.
"Assignment Threshold" means with respect to a proposed assignment and
delegation to an Assignee Lender of:
(i) Term Loans and Term Loan Commitments, an amount equal to
$1,000,000; provided that the amount of any such assignment and delegation
may be less than $1,000,000 so long as (A) the Administrative Agent and,
if no Default has occurred and is then continuing, the Borrower consent to
such lesser amount and (B) after giving effect to such assignment and all
other assignments to be made substantially concurrently therewith to such
Assignee Lender or Related Funds of such Assignee Lender, such Assignee
Lender or Related Funds of such Assignee Lender shall hold Term Loans and
Term Loan Commitments in an aggregate amount of at least $1,000,000 (or
such lesser amount as may be agreed to by the Borrower and the
Administrative Agent).and
(ii) Revolving Loans, Revolving Loan Commitments and related
participations in Letters of Credit and Letter of Credit Outstandings, an
amount equal to $2,500,000; provided that the amount of any such
assignment and delegation may be less than $2,500,000 so long as (A) the
Administrative Agent and, if no Default has occurred and is then
continuing, the Borrower consent to such lesser amount and (B) after
giving effect to such assignment and all other assignments to be made
substantially concurrently therewith to such Assignee Lender, such
Assignee Lender shall hold Revolving Loan
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Commitments in an aggregate amount of at least $2,500,000 (or such lesser
amount as may be agreed to by the Borrower and the Administrative Agent).
"Augmenting Revolving Loan Lender" is defined in Section 2.9.
"Authorized Officer" means, relative to any Obligor, those of its
officers, general partners or managing members (as applicable) whose signatures
and incumbency shall have been certified to the Administrative Agent, the
Lenders and the Issuers pursuant to Section 5.1.1.
"Base Rate" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York as its base rate for U.S.
dollars loaned in the United States. The Base Rate is not necessarily intended
to be the lowest rate of interest determined by the Administrative Agent in
connection with extensions of credit.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrower" is defined in the preamble.
"Borrower Security Agreement" means the Security and Pledge Agreement
executed and delivered by the Borrower for the benefit of the Secured Parties
pursuant to the terms of this Agreement substantially in the form of Exhibit G
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Borrowing" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by all Lenders required to make such
Loans on the same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.3.
"Borrowing Request" means a Loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of Exhibit B-1
hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York or Houston, Texas; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day which is a Business Day described in clause (a)
above and which is also a day on which dealings in Dollars are carried on
in the interbank eurodollar market of the Administrative Agent's LIBOR
Office.
"By-Product Metals" means the by-product iron, copper, nickel, cobalt,
rhodium, gold and silver that is separated, using sulfuric acid and other
methods, from the ore mined by the Borrower.
"Capital Expenditures" means, for any period, the aggregate amount of all
expenditures of the Borrower and its Subsidiaries for fixed or capital assets
(including, and together with,
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capitalized mine development) made during such period which, in accordance with
GAAP, would be classified as capital expenditures.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital, whether now outstanding or
issued after the Effective Date.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which have been (or, in accordance with GAAP, should be) classified as
capitalized leases, and for purposes of each Loan Document the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, 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 premium or
a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or unconditionally guaranteed by) the
United States of America or a State thereof (or any agency or political
subdivision thereof, to the extent such obligations are supported by the
full faith and credit of the United States of America or a State thereof)
maturing not more than one year after such time;
(b) commercial paper maturing not more than 270 days from the date
of issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor)
organized under the laws of any State of the United States or of the
District of Columbia and rated A-1 or higher by S&P or P-1 or higher
by Moody's,
(ii) any Lender (or its holding company) and rated A-1 or
higher by S&P or P-1 or higher or Moody's, or
(iii) the Administrative Agent (or its holding company);
(c) any certificate of deposit, time deposit or bankers acceptance,
maturing not more than one year after its date of issuance, which is
issued by
(i) any bank organized under the laws of the United States (or
any State thereof) and which has (x) a credit rating of A2 or higher
from Moody's or A or higher from S&P and (y) a combined capital and
surplus greater than $500,000,000,
(ii) any Lender which has (x) a credit rating of A2 or higher
from Moody's or A or higher from S&P and (y) a combined capital and
surplus greater than $500,000,000, or
(iii) the Administrative Agent; or
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(d) any repurchase agreement having a term of 30 days or less
entered into with the Administrative Agent or any Lender or commercial
banking institution satisfying the criteria set forth in clause (c) which
(i) is secured by a fully perfected security interest in any
obligation of the type described in clause (a), and
(ii) has a market value at the time such repurchase agreement
is entered into of not less than 100% of the repurchase obligation
of such commercial banking institution thereunder.
"Casualty Event" means the damage, destruction, condemnation, taking,
seizing or similar event, as the case may be, of any property of the Borrower or
any of its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as amended (including as
amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L.
99-499, 100 Stat. 1613).
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) the failure of the Borrower at any time to directly or
indirectly own beneficially and of record on a fully diluted basis a
sufficient number of the issued and outstanding Capital Stock of its
Subsidiaries to have and exercise voting power for the election of at
least a majority of the board of directors or other managing body of its
Subsidiaries, such Capital Stock to be held free and clear of all Liens
(other than Liens granted under the Loan Documents); or
(b) at any time any Person (other than a Permitted Holder), or
Persons (other than Permitted Holders) acting in concert, shall become the
"beneficial holder" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of Voting Stock representing more
than 30% of the Voting Stock of the Borrower at any time when the
Permitted Holders beneficially hold less than 51% of the Voting Stock of
the Borrower; or
(c) except in accordance with the terms of the Stockholders
Agreement, during any period of 24 consecutive months, individuals who at
the beginning of such period constituted the Board of Directors of the
Borrower (together with any new directors whose election to such Board or
whose nomination for election by the stockholders of the Borrower, as the
case may be, was approved by a vote of 66 2/3% of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute 50% of the Board of Directors of the
Borrower then in office; or
(d) the occurrence of any "Change of Control" (or similar term)
under (and as defined in) any instrument, agreement or document evidencing
terms relating to (i) any
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Indebtedness of the Borrower or any Subsidiary having a principal amount
in excess of $10,000,000 or (ii) any Capital Stock of the Borrower or any
Subsidiary.
"Closing Date" is defined in Section 5.1.
"Closing Date Certificate" means the closing date certificate executed and
delivered by the Borrower pursuant to the terms of this Agreement, substantially
in the form of Exhibit D hereto.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, a Lender's Term Loan
Commitment, Revolving Loan Commitment or Letter of Credit Commitment.
"Commitment Amount" means, as the context may require, the Term Loan
Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit
Commitment Amount.
"Commitment Letter" means the confidential letter, dated May 12, 2004,
from TDSI and the Administrative Agent to the Borrower.
"Commitment Termination Date" means, as the context may require, the Term
Loan Commitment Termination Date or the Revolving Loan Commitment Termination
Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default with respect to the
Borrower described in clauses (a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of all or any portion of the Loans to be
due and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative Agent, acting
at the direction of the Required Lenders, to the Borrower that the
Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and executed
by the chief financial or principal accounting Authorized Officer of the
Borrower, substantially in the form of Exhibit E hereto, together with such
changes thereto as the Administrative Agent may from time to time request for
the purpose of monitoring the Borrower's compliance with the financial covenants
contained herein.
"Communications" is defined in Section 9.15.
-8-
"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) the Indebtedness 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 of the debt, obligation or other
liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means 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 414(c) of the Code or
Section 4001 of ERISA.
"Copyright Security Agreement" means any Copyright Security Agreement
executed and delivered by any Obligor for the benefit of the Secured Parties in
substantially the form of Exhibit D to any Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Counterparty Notice" means any duly completed notice from the Borrower in
the form of Exhibit F-1 attached hereto or any other form satisfactory to the
Administrative Agent.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, the extension of any
Stated Expiry Date of any existing Letter of Credit, or the amendment of
any existing Letter of Credit which increases the Stated Amount thereof.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Credit-Linked Deposit" means, as to each Credit-Linked Revolving Loan
Lender, the cash deposit made by such Revolving Loan Lender pursuant to Section
5.1.20 or 5.2.3, as such deposit may be (a) reduced from time to time pursuant
to Section 2.6.1 or 2.6.6 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 10.11.1. The
initial amount of each Credit-Linked Revolving Loan Lender's Credit-Linked
Deposit is set forth on Schedule IV, or in the Lender Assignment Agreement
pursuant to which such Lender shall have acquired or provided its Credit-Linked
Deposit, as applicable.
"Credit-Linked Deposit Account" means, the account established by the
Administrative Agent under its sole and exclusive control maintained at the
office of The Toronto-Dominion
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Bank at 919 Fannin, Suite 1700, Houston, TX 77010, designated as the "Stillwater
Credit-Linked Deposit Account" that shall be used solely to hold the
Credit-Linked Deposits.
"Credit-Linked Revolving Loan Lender" means, as determined by the
Administrative Agent, each Revolving Loan Lender that (i) is a Fund, (ii) is
subject to a Lender Default, (iii) whose capital status, as determined by its
principal federal or state supervisor or other applicable governmental agency or
authority (if applicable), is rated at or below "undercapitalized", or (iv)
whose long term certificate of deposit ratings or long-term unsecured debt
ratings are below BBB-, or the equivalent thereof from S&P, BBB-, or the
equivalent thereof from Fitch Ratings, Inc, or Baa3, or the equivalent thereof
from Moody's, or who does not have any such ratings, unless such Revolving Loan
Lender is a commercial bank or other financial institution which is a Subsidiary
of a Person that satisfies such minimum credit ratings.
"Current Assets" means the total assets which would properly be classified
as consolidated current assets of the Borrower and its Subsidiaries in
accordance with GAAP.
"Current Liabilities" means the total liabilities which would properly be
classified as consolidated current liabilities of the Borrower and its
Subsidiaries (other than the portion of Indebtedness of the Borrower and its
Subsidiaries that matures more than one year from the date of its creation
(including the Loans) or matures within one year from such date and is renewable
or extendable, at the option of the Borrower or one of its Subsidiaries, to a
date more than one year from such date or arises under a revolving credit or
similar agreement (including this Agreement) that obligates the lender or
lenders thereunder to extend credit during a period of more than one year from
such date).
"Debt" means the outstanding principal amount of all Indebtedness of the
Borrower and its Subsidiaries of the nature referred to in clauses (a), (b),
(c), (g), (h) and (i) of the definition of Indebtedness; provided, however, that
Indebtedness in respect of reclamation bonds, surety bonds, performance bonds
and appeal bonds and letters of credit issued in lieu of such bonds (other than
Letters of Credit issued under this Agreement which shall constitute dollar for
dollar "Debt" for all purposes hereunder) shall constitute "Debt" only to the
extent, and in the amount that, the aggregate face amount of all such
reclamation bonds, surety bonds, performance bonds, appeal bonds and letters of
credit issued on behalf of the Borrower and its Subsidiaries and outstanding at
the time of determination exceeds $30,000,000.
"Debt Service Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of
(a) EBITDA for the four consecutive Fiscal Quarters ending on the
last day of such Fiscal Quarter,
to
(b) the sum of
(i) all Interest Expense payments made during the four
consecutive Fiscal Quarters ending on the last day of such Fiscal
Quarter;
-10-
plus
(ii) repayments of the principal of outstanding Debt
(including Capitalized Lease Liabilities) scheduled to be made
during the four consecutive Fiscal Quarters ending on the last day
of such Fiscal Quarter.
"Debt to EBITDA Ratio" means, at any time, the ratio of
(a) Debt outstanding at such time
to
(b) EBITDA computed for the period consisting of the four
consecutive Fiscal Quarters ending on the last day of the most recent
Fiscal Quarter with respect to which the Administrative Agent has received
the financial statements required to be delivered to it pursuant to
Section 7.1.1.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Deferred Capital Expenditures" is defined in Section 7.2.7.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the written consent of
the Required Lenders.
"Discount Rate" means, in connection with the calculation during any
Fiscal Year of the present value of the minimum future lease payments described
in Section 7.2.18, the sum of (i) the yield to maturity implied by the Treasury
Constant Maturity Series yields for the last day of the Fiscal Year immediately
preceding such Fiscal Year, in Federal Reserve Statistical release H.15 (519)
(or any comparable successor publication) for actively traded U.S. Treasury
Securities having a constant maturity equal to five years as of the last day of
such Fiscal Year plus (ii) 280 basis points. Such yield shall be determined, if
necessary, by (a) converting U.S. Treasury bill quotations to bond-equivalent
yields in accordance with accepted financial practice and (b) interpolating
linearly between yields reported for various maturities.
"Disposition" (or correlative words such as "Dispose") means any sale,
transfer, lease, contribution or other conveyance (including by way of merger)
of, or the granting of options, warrants or other rights to, any of the
Borrower's or its Subsidiaries' assets (including accounts receivables and
Capital Stock of Subsidiaries) to any other Person in a single transaction or
series of transactions.
"Documentation Agent" is defined in the preamble.
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"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "Domestic Office" set forth opposite its name on
Schedule II hereto or in a Lender Assignment Agreement, or such other office of
a Lender (or any successor or assign of such Lender) within the United States as
may be designated from time to time by notice from such Lender, as the case may
be, to each other Person party hereto.
"Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
"East Boulder Mine" is defined in the second recital.
"EBITDA" means, for the Borrower and its Subsidiaries, for any applicable
period, the sum (without duplication) of
(a) Net Income,
plus
(b) the amount deducted by the Borrower and its Subsidiaries, in
determining Net Income, representing Interest Expense,
plus
(c) the amount deducted, in determining Net Income, of all federal,
state, local and foreign income taxes (whether paid in cash or deferred)
of the Borrower and its Subsidiaries,
plus
(d) the amount deducted, in determining Net Income, representing
non-cash charges, including (i) depreciation, depletion and amortization
of assets of the Borrower and its Subsidiaries, (ii) non-cash expense in
respect of equity instruments (including stock options and restricted
stock) issued to directors, officers and employees of the Borrower and its
Subsidiaries, (iii) accretion of reclamation liabilities, (iv) non-cash
decreases, if any, in the value of derivative financial instruments and
(v) the amortization or write-off of debt issuance costs previously
incurred,
minus
(e) the amount added, in determining Net Income, representing
non-cash gains, including non-cash increases, if any, in the value of
derivative financial instruments,
minus
(f) to the extent not deducted in determining Net Income, all cash
payments made during such period on account of reclamation liabilities and
other non-cash charges that
-12-
were previously added back in determining EBITDA under this Agreement
pursuant to clause (d) above.
"Economic Development Revenue Bond Resolution" means Resolution No. 191,
dated as of March 3, 2000, as adopted by the Board of Investments of the State
of Montana.
"Economic Development Revenue Bond Tax Event" is defined in the definition
of "Permitted Revenue Bond Indebtedness".
"Economic Development Revenue Bonds" means the Economic Development
Revenue Bonds sold and issued by the State of Montana pursuant to and as
described in the Economic Development Revenue Bond Resolution.
"Effective Date" means the date this Agreement becomes effective pursuant
to Section 10.8.
"Eligible Assignee" means and includes each Lender (and any Affiliate
thereof), any commercial bank, any financial institution, any Fund or any Person
that would satisfy the requirements of an "accredited investor" (as defined in
SEC Regulation D), but excluding a natural person.
"Environmental Laws" means all applicable laws relating to public health
and safety, pollution and protection of 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 (including any petroleum
product) 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 (including any petroleum product).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections thereto.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess (if any) of:
(a) the sum (for such Fiscal Year), without duplication, of
(i) Net Income,
plus
(ii) the amount deducted, in determining such Net Income,
representing non-cash charges, including (A) depreciation, depletion
and amortization of assets
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of the Borrower and its Subsidiaries, (B) non-cash expense in
respect of equity instruments (including stock options and
restricted stock) issued to directors, officers and employees of the
Borrower and its Subsidiaries, (C) accretion of reclamation
liabilities, (D) non-cash decreases, if any, in the value of
derivative financial instruments and (E) the amortization or
write-off of debt issuance costs previously incurred,
plus
(iii) the amount deducted, in determining such Net Income, of
all deferred federal, state, local and foreign income taxes of the
Borrower and its Subsidiaries,
plus
(iv) the amount deducted, in determining such Net Income,
representing a charge against income in respect of the termination
of a Hedging Agreement during such Fiscal Year,
plus
(v) the amount received in cash by the Borrower or any
Subsidiary in respect of the termination of a Hedging Agreement, to
the extent such amount was not included in the determination of such
Net Income,
plus
(vi) the net decrease (if any) in Net Working Capital,
minus
(vii) the amount paid in cash by the Borrower or any
Subsidiary in respect of the termination of a Hedging Agreement, to
the extent such amount was not included in the determination of Net
Income for such Fiscal Year,
minus
(viii) the amount added, in determining such Net Income,
representing deferred income in respect of the termination of a
Hedging Agreement during such Fiscal Year,
minus
(ix) the amount, if any, added in determining Net Income that
represents non-cash gains, including non-cash increases in the value
of derivative financial instruments,
over
(b) the sum (for such Fiscal Year), without duplication, of
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(i) the amount equal to the Capital Expenditures made by the
Borrower and its Subsidiaries in such Fiscal Year to the extent
financed with internally generated cash flow,
plus
(ii) scheduled principal repayments of Debt (including the
Term Loans) and voluntary principal prepayments of Loans (provided
that, in the case of Revolving Loans or any other Debt incurred
pursuant to a revolving commitment, there is a corresponding
permanent reduction in such revolving commitment), in each case to
the extent made during such Fiscal Year from internally generated
cash flow,
plus
(iii) the net increase (if any) in Net Working Capital,
plus
(iv) to the extent not deducted in determining such Net
Income, all cash payments made during such Fiscal Year on account of
reclamation liabilities and other non-cash charges that were
previously added back in determining Excess Cash Flow under this
Agreement pursuant to clause (a)(ii) above;
provided, however, that the determination of "Excess Cash Flow" for each Fiscal
Year shall exclude the effect of any sale of Norilsk Palladium (including the
effect of any Related Norilsk Palladium Hedge), including the effect of any such
sale (and any Related Norilsk Palladium Hedge) on Net Income for such Fiscal
Year or change in inventory or change in accounts receivable; provided further
however, that "Excess Cash Flow" for the 2004 Fiscal Year shall be determined as
if such Fiscal Year commenced on April 1, 2004 (and terminated on December 31,
2004).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Real Property" means the real property specifically described on
Schedule III hereto.
"Exemption Certificate" is defined in clause (e) of Section 4.6.
"Existing CA Refinancing" is defined in the third recital.
"Existing Credit Facility" is defined in the third recital.
"Existing Letters of Credit" means the Letters of Credit (as defined in
the Existing Credit Facility) outstanding on the Closing Date.
"Facilities" is defined in the second recital.
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"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by TD from three federal funds brokers of recognized standing
selected by it.
"Fee Letter" means the confidential letter, dated March 23, 2004, from
TDSI to the Borrower, as such letter may be amended or otherwise modified from
time to time in accordance with the terms thereof.
"Fiscal Quarter" means a quarter ending on the last day of March, June,
September or December.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "2004 Fiscal Year") refer to the Fiscal Year
ending on December 31 of such calendar year.
"Force Majeure Event" is defined in Section 7.2.1.
"Ford" means Ford Motor Company, a Delaware corporation.
"Ford Supply Contract" means the Palladium Sales Agreement, made and
entered into on August 13, 1998 (as amended by the First Amendment Agreement,
dated as of October 27, 2000, the Second Amendment Agreement, dated as of March
27, 2001, the Third Amendment Agreement, dated as of March 13, 2002 and the
Fourth Amendment Agreement, dated as of February 20, 2003) by and between the
Borrower and Ford.
"Foreign Pledge Agreement" means, collectively, each Security Agreement
executed and delivered by the Borrower for the benefit of the Secured Parties
pursuant to the Borrower Security Agreement pledging (or confirming under
applicable law the pledge of) the Borrower's Capital Stock in a Foreign
Subsidiary to the Administrative Agent for the benefit of the Secured Parties,
in a form satisfactory to the Administrative Agent, in each case, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Foreign Subsidiary" means any Subsidiary of the Borrower (a) which is
organized under the laws of any jurisdiction outside of the United States, (b)
which conducts the major portion of its business outside of the United States
and (c) all or substantially all of the property and assets of which are located
outside of the United States.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
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"Fund" means any fund that is regularly engaged in making, purchasing or
investing in loans.
"GAAP" is defined in Section 1.4.
"GM" means General Motors Corporation, a Delaware corporation.
"GM Supply Contract" means the Palladium and Platinum Sales Agreement,
made and entered into on August 17, 1998, (as amended by the First Amendment
Agreement, dated as of November 20, 2000 and the Second Amendment Agreement,
dated as of February 14, 2001), by and between the Borrower and GM.
"Good Neighbor Agreement" means the Good Neighbor Agreement dated as of
May 8, 2000, by and among the Borrower, Northern Plains Resource Council, a
Montana not-for-profit corporation, Cottonwood Resource Council, a Montana
not-for-profit corporation and Stillwater Protective Association, a Montana
not-for-profit corporation, as amended by that certain Amendment to Good
Neighbor Agreement dated as of August 3, 2004.
"Governmental Authority" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantor" means each Subsidiary that has executed and delivered to the
Administrative Agent, for the benefit of the Secured Parties, a Subsidiary
Guaranty.
"Hazardous Material" means any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance (including any petroleum
product) within the meaning of any Environmental Law relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, including each of the following:
(a) those substances included within the definitions of "hazardous
substances", "hazardous materials", "toxic substances" or "solid waste" in
CERCLA, the Resource Conservation and Recovery Act and the Hazardous
Materials Transportation Act, 49 U.S.C. Section 5101, et seq.;
(b) those substances listed in the United States Department of
Transportation Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302); and
(c) any material, waste or substance which is designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33
U.S.C. Section 1251, et seq. or listed pursuant to Section 307 of the
Clean Water Act, 33 U.S.C. Section 1317.
"Hedging Agreements" means, collectively, currency exchange agreements,
commodity swaps, exchange or futures agreements, interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, commodity hedging
agreements, forward agreements
-17-
and all other agreements or arrangements designed to protect a Person against
fluctuations in interest rates, currency exchange rates or commodity prices.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under Hedging Agreements.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Borrower to be in default of any of its obligations under Section
7.2.4.
"including" and "include" mean including without limiting the generality
of any description preceding such term, and, for purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of ejusdem
generis shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Increasing Revolving Loan Lender" is defined in Section 2.9.
"Incremental Revolving Loan Amount" shall mean, at any time, $10,000,000
less the aggregate amount of all commitments from Increasing Revolving Loan
Lenders and Augmenting Revolving Loan Lenders that have been added pursuant to
Section 2.9.
"Incremental Term Loan Amount" shall mean, at any time, $125,000,000 less
the aggregate amount of all Incremental Term Loan Commitments that have been
made.
"Incremental Term Loan Commitment" shall mean the commitment of any
Lender, established pursuant to Section 2.8, to make Incremental Term Loans to
the Borrower.
"Incremental Term Loan Lender" shall mean a Lender with an Incremental
Term Loan Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan Maturity Date" shall mean the final maturity date
of any Incremental Term Loan, as set forth in the applicable Incremental Term
Loan Supplement.
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"Incremental Term Loan Repayment Dates" shall mean the dates scheduled for
the repayment of principal of any Incremental Term Loan, as set forth in the
applicable Incremental Term Loan Supplement.
"Incremental Term Loan Supplement" shall mean an Incremental Term Loan
Supplement in form and substance reasonably satisfactory to the Administrative
Agent, among the Borrower, the Administrative Agent and one or more Incremental
Term Loan Lenders.
"Incremental Term Loans" shall mean term loans made by one or more Lenders
to the Borrower pursuant to Section 2.1.6. Incremental Term Loans may be made in
the form of additional Term Loans or, to the extent permitted by Section 2.8 and
provided for in the relevant Incremental Term Loan Supplement, Other Term Loans.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or borrowed
metals and all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments;
(b) (i) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, performance bonds, reclamation
bonds, surety bonds, appeal bonds and similar obligations, in each case
whether or not drawn, and (ii) banker's acceptances issued for the account
of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) for purposes of Section 8.1.5 only, all other items which, in
accordance with GAAP, would be included as liabilities on the liability
side of the balance sheet of such Person as of the date at which
Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging Obligations (it
being understood and agreed that net liabilities (if any) of the Borrower
under the Supply Contracts shall not constitute Indebtedness for purposes
of this Agreement);
(f) 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 excluding trade accounts payable in the ordinary
course of business which are not overdue for a period of more than 90 days
or, if overdue for more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been established on the
books of such Person, and indebtedness secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to be
secured by) a Lien on property owned or being acquired 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;
(g) obligations arising under Synthetic Leases of such Person;
(h) the stated liquidation value of all Redeemable Capital Stock of
such Person; and
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(i) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Initial Supply Contracts" means the GM Supply Contract, the Ford Supply
Contract and the Mitsubishi Supply Contract, in each case as certified to the
Administrative Agent on the Closing Date.
"Insured Peril" is defined in Section 7.1.4.
"Intercompany Subordination Agreement" means the Subordination Agreement,
substantially in the form of Exhibit K hereto, executed and delivered by two or
more Obligors pursuant to the terms of this Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense of the Borrower and its Subsidiaries for such
period, as determined in accordance with GAAP, including (i) commitment fees
paid or owed with respect to the then unutilized portion of any Commitment
Amount, (ii) all other fees paid or owed with respect to the issuance or
maintenance of Contingent Liabilities (including letters of credit), which, in
accordance with GAAP, would be included as interest expense, (iii) the portion
of any payments made in respect of Capitalized Lease Liabilities of the Borrower
and its Subsidiaries allocable to interest expense and (iv) interest costs which
have been capitalized in accordance with GAAP.
"Interest Period" means, (i) relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in its relevant notice pursuant to Section 2.3 or 2.4; and
(ii) as to the Credit-Linked Deposits, each period commencing on the date the
Credit-Linked Deposits are initially funded by the Credit-Linked Revolving Loan
Lenders or on the last day of the preceding Interest Period applicable thereto,
as the case may be, and ending on the numerically corresponding day in the
calendar month that is one month thereafter; provided, however, that
(a) the Borrower shall not be permitted to select Interest Periods
to be in effect at any one time which have expiration dates occurring on
more than five different dates;
(b) if such 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 next
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following Business Day is the first Business Day of a calendar month, in
which case such Interest Period shall end on the Business Day next
preceding such numerically corresponding day); and
(c) no Interest Period for any Loan may end later than the Stated
Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan, advance or extension of credit made by such Person to
any other Person, including the purchase by such Person of any bonds,
notes, debentures or other debt securities of any other Person (excluding
commission, travel, petty cash and similar advances to officers and
employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any Capital Stock held by such Person in any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such Investment.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit B-2 hereto.
"Issuer" means TD in its capacity as Issuer of the Letters of Credit. At
the request of TD and with the Borrower's consent (not to be unreasonably
withheld), another Lender or an Affiliate of TD may issue one or more Letters of
Credit hereunder.
"J-M Reef" means an extensive mineralized zone containing platinum group
metals located in Stillwater and Sweet Grass Counties, Montana.
"Key Unpatented Claims" is defined in Section 6.9(b).
"Lender Assignment Agreement" means an assignment agreement substantially
in the form of Exhibit L hereto.
"Lender Default" means (i) the refusal (which has not been retracted) or
other failure of a Lender to make available its portion of any Borrowing, to
fund its portion of any unreimbursed payment under Section 2.6.1 or to make
deposits into the Credit-Linked Deposit Account hereunder when each other Lender
under the relevant Tranche that is not an Affiliate of such Lender has not so
refused or failed to make available or fund its portion of such Borrowing,
payment or other obligation or (ii) a Lender having notified the Borrower and/or
the Administrative Agent in writing that it does not intend to comply with its
obligations under Section 2.1 or 2.6.1 when no other Lender under the relevant
Tranche that is not an Affiliate of such Lender has issued any such notification
which is then in effect, including in the case of
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either clause (i) or (ii) as a result of any takeover of such Lender by any
regulatory authority or agency.
"Lender Hedging Agreement" means any Hedging Agreement entered into by the
Borrower or any of its Subsidiaries with respect to which the counterparty to
such agreement is (or, at the time such agreement was entered into, was) a
Lender, the Administrative Agent or an Affiliate of a Lender or the
Administrative Agent, so long as a fully executed copy of such Hedging Agreement
has been provided to the Administrative Agent within five Business Days of the
effectiveness thereof.
"Lenders" is defined in the preamble and shall include any Person that
becomes a Lender pursuant to Section 10.11.1 and, unless the context shall
otherwise require, the term "Lenders" shall also include the Incremental Term
Loan Lenders, Increasing Revolving Loan Lenders and Augmenting Revolving Loan
Lenders.
"Lender's Environmental Liability" means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs, judgments,
suits, proceedings, damages (including consequential damages), disbursements or
expenses of any kind or nature whatsoever (including reasonable attorneys' fees
at trial and appellate levels and experts' fees and disbursements and expenses
incurred in investigating, defending against or prosecuting any litigation,
claim or proceeding) which may at any time be imposed upon, incurred by or
asserted or awarded against the Administrative Agent, any Lender or any Issuer
or any of such Person's Affiliates, shareholders, directors, officers,
employees, and agents in connection with or arising from:
(a) any Hazardous Material on, in, under or affecting all or any
portion of any property of the Borrower or any of its Subsidiaries, the
groundwater thereunder, or any surrounding areas thereof to the extent
caused by Releases from the Borrower's or any of its Subsidiaries' or any
of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any warranty
contained or referred to in Section 6.12;
(c) any violation or claim of violation by the Borrower or any of
its Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by, or the
recovery of any costs for, the cleanup, release or threatened release of
Hazardous Material by the Borrower or any of its Subsidiaries, or in
connection with any property owned or formerly owned by the Borrower or
any of its Subsidiaries.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means, with respect to an Issuer, such
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.2 and,
with respect to each Revolving Loan Lender, the obligations of each such Lender
to participate in such Letters of Credit pursuant to Section 2.6.1.
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"Letter of Credit Commitment Amount" means, on any date, a maximum amount
of $40,000,000, as such amount may be permanently reduced from time to time
pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to the
sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"LIBO Rate" means, with respect to any Interest Period for LIBO Rate
Loans, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period in an amount approximately equal to the principal amount of
the LIBO Rate Loans requested by the Borrower with such Interest Period. In the
event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such LIBO Rate Loan for such Interest Period shall
be the average rate (rounded upwards, if necessary, to the next 1/16 of 1%) at
which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered to the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) -------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect two Business Days before the first day of such Interest
Period.
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"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "LIBOR Office" set forth opposite its name on
Schedule II hereto or in a Lender Assignment Agreement, or such other office of
a Lender as designated from time to time by notice from such Lender to the
Borrower and the Administrative Agent, whether or not outside the United States,
which shall be making or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of or including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"Loan Documents" means, collectively, this Agreement, each Note, the
Letters of Credit, each Lender Hedging Agreement, each Incremental Term Loan
Supplement (if any), the Fee Letter, the Commitment Letter, each agreement
pursuant to which the Administrative Agent, for the benefit of the Secured
Parties, is granted a Lien to secure the Obligations (including each Security
Agreement and each Mortgage) and each other agreement, certificate, document or
instrument delivered in connection with this Agreement or such other Loan
Documents, whether or not specifically mentioned herein or therein.
"Loans" means, as the context may require, a Revolving Loan or a Term
Loan, of any type.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, condition (financial or otherwise), operations or prospects of
the Borrower or the Borrower and its Subsidiaries taken as a whole, (ii) the
rights and remedies of any Secured Party under any Loan Document or (iii) the
ability of any Obligor to perform its Obligations under any Loan Document.
"Material Supply Contract Counterparty" means each of GM, Ford and
Mitsubishi and each other Person which enters into a Material Supply Contract
with the Borrower or any Subsidiary.
"Material Supply Contracts" means, collectively, (i) each Initial Supply
Contract and (ii) each contract pursuant to which the Borrower agrees to deliver
15% or more of the Borrower's Annual Palladium Production or Annual Platinum
Production, as the case may be.
"Mine" and "Mines" is defined in the second recital.
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"Mine Plan" means, with respect to any Mine (including related downstream
facilities such as the processing facilities in Columbus, Montana), a five-year
plan prepared by the Borrower setting forth, inter alia, annual operating and
capital budgets; proposed construction, development, operation and closing of
such Mine and any rehabilitation or reclamation work related thereto;
exploitation, treatment, production, marketing and sale of all metals recovered
from such Mine; and all administrative, technical, financial and commercial
activities related thereto; provided that the initial year of each Mine Plan
shall be separated into quarterly periods. Each Mine Plan shall be updated
annually, in each case in accordance with clause (j) of Section 7.1.1; provided
that for purposes of determinations made under Sections 6.9, 6.17, 6.18, 7.1.3
and 8.1.15 of this Agreement and Section 2.6 and clauses (e) and (h) of Section
3.5 of the Mortgage, references to a Mine Plan shall be to the Mine Plan
delivered pursuant to Section 5.1.9, except to the extent otherwise consented to
by the Administrative Agent.
"Minimum Liquidity" means, with respect to the Borrower and its
Subsidiaries as of any date of determination, the sum of (i) all cash and Cash
Equivalent Investments which would be included on the consolidated balance sheet
of the Borrower and such Subsidiaries in accordance with GAAP and which are not
subject to any Lien (other than any Lien created under a Loan Document or any
right of setoff in favor of the institution at which such cash or Cash
Equivalents are held), in each case as of such date of determination and (ii)
75% of the then aggregate fair market value of the Norilsk Palladium (as
determined by reference to the London Metal Exchange afternoon fix for palladium
for that date or, if no afternoon fix for palladium was set on such date, for
the most recent trading date preceding that date).
"Mining Consultant" means Pincock, Allen & Holt, or such other consultant
as the Administrative Agent may, with the approval of the Required Lenders and
the Borrower (which approval shall not be unreasonably withheld), engage on
behalf of the Lenders in connection with the Lenders' ongoing review of the
operation of the Facilities, including without limitation to assist the
Administrative Agent and the Lenders in conducting due diligence, to examine the
Mine Plans, all construction budgets and schedules and any proposed changes in
such Mine Plans and budgets and schedules (including cost breakdowns and
estimates), to make periodic inspections of the Facilities, to confirm
compliance with Environmental Laws and to advise and render reports to the
Administrative Agent and the Lenders concerning the any of the foregoing.
"Mining Rights" means all interests in the surface of any lands, the
minerals in (or that may be extracted from) any lands, all royalty agreements,
water rights, patented and unpatented mining and millsite claims, fee interests,
mineral leases, mining licenses, profits-a-prendre, joint ventures and other
leases, rights-of-way, inurements, licenses and other rights and interests used
by or necessary to the Borrower to construct, develop and operate the Mines,
including, all rights to and interest in claims in the identified platinum group
metals mineralized zone of the J-M Reef.
"Mitsubishi" means Mitsubishi Corporation, a Japanese corporation.
"Mitsubishi Supply Contract" means the Palladium and Platinum Sales
Agreement, made and entered into on August 27, 1998, (as amended by the First
Amendment Agreement, dated as of April 1, 2001 and the Second Amendment
Agreement, dated as of November 30, 2001) by and between the Borrower and
Mitsubishi.
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"Monthly Payment Date" means the last day of each calendar month, or if
any such day is not a Business Day, the next succeeding Business Day.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means each mortgage, deed of trust or agreement executed and
delivered by any Obligor in favor of the Administrative Agent for the benefit of
the Secured Parties pursuant to the requirements of this Agreement in
substantially the form of Exhibit I hereto (with such changes as may be
necessary for filing or enforcement thereof in the state where the real property
and fixtures subject thereto are located), under which a Lien is granted on the
real property and fixtures described therein, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Net Casualty Proceeds" means, with respect to any Casualty Event
occurring after the date hereof, the amount of any insurance proceeds or
condemnation or similar awards received by the Borrower or any of its
Subsidiaries (or the Administrative Agent pursuant to any loss payee or similar
provision) in connection therewith, but excluding (i) any proceeds or awards
required to be paid to a creditor (other than any Secured Party) which holds a
first-priority Lien permitted by Section 7.2.3 on the property which is the
subject of such Casualty Event, (ii) any reasonable and customary costs, fees
and expenses actually incurred in connection with the obtaining of such proceeds
or awards which have been paid or are payable and (iii) any taxes actually paid
or estimated by such Person (in good faith) to be payable in cash in connection
with any adjustment or settlement in respect of such proceeds or awards;
provided, however, that if, after the payment of all taxes with respect to such
adjustment or settlement, the amount of estimated taxes, if any, pursuant to
clause (iii) above exceeded the tax amount actually paid in cash in respect of
such adjustment or settlement, the aggregate amount of such excess shall, at
such time, constitute Net Casualty Proceeds.
"Net Disposition Proceeds" means the excess of
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from any sale, transfer or conveyance of assets permitted
pursuant to clause (b) or (e) of Section 7.2.11 (collectively referred to
herein for purposes of this definition as a "permitted disposition") and
any cash payments received in respect of promissory notes or other
non-cash consideration delivered to the Borrower or such Subsidiary in
respect of any permitted disposition
over
(b) the sum of
(i) all reasonable and customary fees and expenses with
respect to legal, investment banking, brokerage and accounting and
other professional fees, sales commissions and disbursements
actually incurred in connection with such permitted disposition
which have not been paid (other than in the case of reasonable
out-of-pocket expenses) to Affiliates of the Borrower;
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plus
(ii) all taxes and other governmental costs and expenses
actually paid or estimated by the Borrower or such Subsidiary (in
good faith) to be payable in cash in connection with such permitted
disposition;
plus
(iii) payments made by the Borrower or such Subsidiary to
retire Indebtedness (other than the Loans) of the Borrower or such
Subsidiary where payment of such Indebtedness is required in
connection with such permitted disposition;
provided, however, that if, after the payment of all taxes with respect to such
permitted disposition, the amount of estimated taxes, if any, pursuant to clause
(b)(ii) above exceeded the tax amount actually paid in respect of such permitted
disposition, the aggregate amount of such excess shall be deemed to be Net
Disposition Proceeds.
"Net Equity Proceeds" means, with respect to the sale or issuance by the
Borrower or any Subsidiary to any Person of any stock, warrants or options or
the exercise of any such warrants or options, the excess of:
(a) the gross cash proceeds received by the Borrower or the
Subsidiary from such sale, exercise or issuance,
over
(b) all reasonable and customary underwriting discounts and
commissions and legal, investment banking, brokerage and accounting and
other professional fees, sales commissions and disbursements actually
incurred in connection with such sale or issuance which have not been paid
to Affiliates of the Borrower in connection therewith;
provided, however, that Net Equity Proceeds shall not include (i) any cash
proceeds received by a Subsidiary of the Borrower from the Borrower or a Wholly
Owned Subsidiary of the Borrower, (ii) any cash proceeds received by the
Borrower from directors, officers or employees of the Borrower or any of its
Subsidiaries pursuant to any Borrower incentive, stock option or similar plan
which are concurrently contributed to the common equity of the Borrower or (iii)
any cash proceeds received by the Borrower from any Permitted Holder.
"Net Income" means, for any period, the aggregate of all amounts
(including all amounts in respect of any extraordinary gains and losses, but
excluding any write-up of assets after December 31, 1997) which, in accordance
with GAAP, would be included as net income on the consolidated financial
statements of the Borrower and its Subsidiaries for such period.
"Net Issuance Proceeds" means, as to any issuance of indebtedness for
borrowed money by the Borrower or any of its Subsidiaries, the excess of:
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(a) the gross cash proceeds received by the Borrower or such
Subsidiary from such issuance,
over
(b) all reasonable and customary fees and expenses with respect to
underwriting commissions or fees, upfront, structuring or arrangement fees
and legal, investment banking, commercial banking, brokerage and
accounting and other professional fees, sales commissions and
disbursements actually incurred in connection with such issuance which
have not (other than in the case of reasonable out-of-pocket expenses)
been paid to Affiliates of the Borrower in connection therewith.
"Net Working Capital" means, with respect to the Borrower, the excess of
(a) Current Assets (excluding cash and Cash Equivalent Investments) over (b)
Current Liabilities.
"Non-Defaulting Lender" means a Lender that is not subject to a Lender
Default.
"Non-Excluded Taxes" means any Taxes other than net income and franchise
taxes imposed with respect to any Secured Party by a Governmental Authority
under the laws of which such Secured Party is organized or in which it maintains
its applicable lending office.
"Non-Increasing Revolving Loan Lender" means, in connection with an
increase in Revolving Loan Commitments pursuant to Section 2.9, each Revolving
Loan Lender not then increasing its Revolving Loan Commitments.
"Non-U.S. Lender" means any Lender that is not a "United States person",
as defined under Section 7701(a)(30) of the Code.
"Norilsk" means MMC Norilsk Nickel, an open joint stock company organized
under the laws of the Russian Federation.
"Norilsk Palladium" means the refined palladium in ingot and/or sponge
form with a purity of 99.95% or more delivered to the Borrower in partial
consideration for the Borrower's issuance to Norimet of 45,463,222 shares of the
Borrower's common stock (which share transfer was consummated on June 23, 2003).
"Norilsk Metal Agreement" means any agreement or arrangement pursuant
to which the Borrower or any or its Subsidiaries agrees to purchase from Norimet
(or a member of the Norilsk group) palladium, platinum or any other metal in an
aggregate amount exceeding $10,000,000 in any calendar year (such amount to be
determined, in the case where the purchase price of such metal is not
determinable at the time such agreement or arrangement is entered into, based on
the London Metal Exchange afternoon fix for such metal on the date such
agreement or arrangement is entered into (or, if no afternoon fix for such metal
was set on such date, for the most recent trading date preceding such date)).
"Norilsk Palladium Proceeds" means the excess of
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(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from any sale, transfer or conveyance of Norilsk Palladium
plus the gross cash proceeds received by the Borrower or any of its
Subsidiaries with respect to a Hedging Agreement relating to Norilsk
Palladium minus cash paid by the Borrower or any of its Subsidiaries with
respect to a Hedging Agreement which has been identified to the reasonable
satisfaction of the Administrative Agent as relating to Norilsk Palladium
(such Hedging Agreement, a "Related Norilsk Palladium Hedge") over (b) the
sum of (i) all sales, transfer, ad valorem or similar taxes or other
governmental costs and expenses (excluding, for the avoidance of doubt,
any tax or governmental cost or expense assessed on the income of the
Borrower and its Subsidiaries) that are actually paid or estimated by the
Borrower or such Subsidiary (in good faith) to be payable in cash in
connection with such permitted disposition plus (ii) all reasonable and
customary fees and expenses incurred by the Borrower or such Subsidiary in
respect of such permitted disposition which have not been paid to
Affiliates of the Borrower; provided, however, that if, after the payment
of all taxes with respect to such permitted disposition, the amount of
estimated taxes, if any, pursuant to clause (b)(i) above exceeded the tax
amount actually paid in respect of such permitted disposition, the
aggregate amount of such excess shall be deemed to be Norilsk Palladium
Proceeds.
"Norimet" means Norimet Limited, a company organized under the laws of
England and Wales and a wholly-owned indirect subsidiary of Norilsk.
"Note" means, as the context may require, a Revolving Note or a Term Note.
"Nye Mine" is defined in the second recital.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of the Borrower and each other
Obligor arising under or in connection with this Agreement and each other Loan
Document.
"Obligor" means, as the context may require, the Borrower, any Subsidiary
and each other Person (other than a Secured Party) obligated under any Loan
Document.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of such Obligor's partnership interests, limited liability company interests or
authorized shares of Capital Stock.
"Other Taxes" means any and all stamp, documentary or similar taxes, or
any other excise or property taxes or similar levies that arise on account of
any payment made or required to be made under any Loan Document or from the
execution, delivery, registration, recording or enforcement of any Loan
Document.
"Other Term Loans" is defined in Section 2.8.
"ounce" means a troy ounce equivalent to 31.1035 grams.
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"Palladium Production" means, for any period, the number of ounces of
refined palladium having a minimum purity of 99.95% produced by the Borrower
from the Mines and available for sale and delivery by the Borrower during such
period.
"Participant" is defined in Section 10.11.2.
"Patent Security Agreement" means any Patent Security Agreement executed
and delivered by any Obligor for the benefit of the Secured Parties in
substantially the form of Exhibit A to any Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Patriot Act" means the USA Patriot Act of 2001, 31 U.S.C. Section 5318.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"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 multiemployer
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, as the context may require, any Lender's RL Percentage
or Term Percentage.
"Permitted Acquisition" means an Acquisition (whether pursuant to a merger
or an acquisition of stock, assets or otherwise) by the Borrower or any
Subsidiary from any Person in which the following conditions are satisfied:
(a) (i) immediately before and after giving effect to such
Acquisition no Default shall have occurred and be continuing or would
result therefrom (including under Section 7.2.1) and (ii) such Acquisition
was not preceded by an unsolicited tender offer or proxy contest initiated
by the Borrower or any Subsidiary;
(b) consideration for such Acquisition shall be comprised of Capital
Stock of the Borrower (other than Redeemable Capital Stock and Capital
Stock that may require the payment of dividends (other than dividends
payable in additional shares of such Capital Stock) prior to August 3,
2011), the assumption of Indebtedness permitted under clause (i) of
Section 7.2.2 and/or cash and:
(i) to the extent that the consideration for such Acquisition
is comprised of such Capital Stock, (x) the amount of such Capital
Stock consideration paid in connection with such Acquisition (based
on the fair market value of the Capital Stock issued in connection
therewith), when added to the total aggregate amount of
consideration consisting of Capital Stock for all other Acquisitions
since the Effective Date, does not exceed $300,000,000 and (y) the
chief financial or
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accounting Authorized Officer of the Borrower shall have delivered
to the Administrative Agent a certificate (together with such
supporting financial statements and other information as may be
reasonably requested by the Administrative Agent), in form and
substance reasonably satisfactory to the Administrative Agent,
certifying that, prior to any such Acquisition, the business, assets
or Person acquired, as the case may be, had or accounted for
positive EBITDA (assuming, for purposes of the definition of
"EBITDA", that the business, assets or Person acquired is
substituted for the Borrower) for the period of four full Fiscal
Quarters immediately preceding such Acquisition; and
(ii) to the extent that the consideration for such Acquisition
is comprised of the assumption of Indebtedness and/or cash, the
aggregate amount of such consideration for such Acquisition (based
on the amount of Indebtedness assumed and the cash expended in
connection therewith) will not exceed $25,000,000, and when added to
the total aggregate amount of consideration comprised of
Indebtedness assumed and cash expended for all other Acquisitions
since the Effective Date, would not exceed $50,000,000; and
(c) the Borrower shall have delivered to the Administrative Agent a
Compliance Certificate for the period of four full Fiscal Quarters
immediately preceding such Acquisition (prepared in good faith and in a
manner and using such methodology which is consistent with the most recent
financial statements delivered pursuant to Section 7.1.1) giving pro forma
effect to the consummation of such Acquisition and evidencing compliance
with the covenants set forth in Section 7.2.4.
"Permitted Holders" means Norilsk and each Subsidiary of Norilsk
(including Norimet) in respect of which Norilsk possesses, directly or
indirectly, the power to direct or cause the direction of the management
policies of such Subsidiary.
"Permitted Lease Disposition" means the sale or transfer by the Borrower
of equipment which has been acquired by the Borrower for the purpose of selling
or transferring such equipment to a Person (the "lessor") that will lease such
equipment back to the Borrower, so long as (i) such equipment is sold, or
transferred to the relevant lessor within 180 days of the Borrower's acquisition
thereof, (ii) such equipment is sold or transferred to the lessor for
consideration equal to or greater than the consideration paid by the Borrower
for such equipment and (iii) the lease resulting from such transaction is
permitted under Section 7.2.18.
"Permitted Liens" shall mean the Liens permitted pursuant to clauses (a)
through (n) of Section 7.2.3.
"Permitted Revenue Bond Documents" means, in connection with the Permitted
Revenue Bond Indebtedness, collectively, the loan agreement between the Borrower
and the State of Montana, the indenture between the State of Montana and the
trustee for the holders of the Economic Development Revenue Bonds, and each
other instrument and agreement relating to the Permitted Revenue Bond
Indebtedness or Economic Development Revenue Bonds, in each case, as amended,
supplemented or amended and restated in accordance with clause (b) of Section
7.2.12.
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"Permitted Revenue Bond Indebtedness" means Indebtedness in an aggregate
principal amount not exceeding $30,000,000 incurred by the Borrower upon receipt
of the proceeds of the Economic Development Revenue Bonds, to the extent such
Indebtedness complies with the following terms:
(a) such Indebtedness is not secured by the assets of, or guaranteed
by, any Obligor;
(b) no payments of principal (whether scheduled, mandatory or
otherwise) shall be required prior to September 30, 2012 (provided that
such terms may provide for such Indebtedness to be prepaid in the event
the Economic Development Revenue Bonds are required to be redeemed prior
to their final stated maturity as a result of a final nonappealable
determination by the Internal Revenue Service or a Federal court
determines that the interest paid or payable on any Economic Development
Revenue Bond is or was includable in the gross income of any holder of
such Economic Development Revenue Bond, other than a holder who is a
"substantial user" of the Project or a "related person" within the meaning
of Section 147(a) of the Code (such event, an "Economic Development
Revenue Bond Tax Event"));
(c) the documentation evidencing such Indebtedness does not contain
(i) any provisions permitting the occurrence of an event of default as a
result of the existence of a default or an event of default under the
terms of any other indebtedness (including the Obligations), except in the
case the maturity of such indebtedness is accelerated and the aggregate
principal amount thereof exceeds $30,000,000; and (ii) any
representations, warranties, covenants, events of default or other terms
that are more burdensome on any Obligor than the representations,
warranties, covenants, events of default or other terms contained in the
Loan Documents (as determined by the Administrative Agent in its
reasonable discretion); and
(d) the proceeds of such Indebtedness are used (or are committed to
be used) by the Borrower to pay a portion of the costs and expenses
incurred in connection with the Project consistent with the terms and
conditions of the Economic Development Revenue Bond Resolution.
"Person" means any natural person, corporation, limited liability company,
partnership, joint venture, association, trust or unincorporated organization,
Governmental Authority or any other legal entity, whether acting in an
individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Platform" is defined in Section 9.15.
"Platinum Production" means, for any period, the number of ounces of
refined platinum having a minimum purity of 99.95% produced by the Borrower from
the Mines and available for sale and delivery by the Borrower during such
period.
"Pledged Subsidiary" means, at any time, each Subsidiary in respect of
which the Administrative Agent, for the benefit of the Secured Parties, has been
granted, at such time, a
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security interest in and to, or a pledge of, (i) any of the issued and
outstanding shares of Capital Stock of such Subsidiary or (ii) any intercompany
notes of such Subsidiary owing to the Borrower or another Subsidiary.
"Probable Reserves" means, at any date, reserves of ore palladium and
platinum at each Mine as determined and calculated in accordance with standards
established from time to time by the SEC.
"Pro Forma Balance Sheet" is defined in Section 5.1.6.
"Project" means the "Project" referred to in the Economic Development
Revenue Bond Resolution.
"Proven Reserves" means, at any date, reserves of ore palladium and
platinum at each Mine as determined and calculated in accordance with standards
established from time to time by the SEC.
"Quarterly Payment Date" means the last day of March, June, September and
December, or, if any such day is not a Business Day, the next succeeding
Business Day. Unless the context otherwise requires, the term "Quarterly Payment
Date" shall also include each Incremental Term Loan Repayment Date.
"Redeemable Capital Stock" means Capital Stock of the Borrower or any of
its Subsidiaries that, either by its terms, by the terms of any security into
which it is convertible or exchangeable or otherwise, (i) is or upon the
happening of an event or passage of time would be required to be redeemed (for
consideration other than shares of common stock of the Borrower) on or prior to
the one-year anniversary of the Stated Maturity Date (as such date may be
amended from time to time), except to the extent such mandatory redemption is
required pursuant to a customary change of control provision which expressly
provides that all indebtedness that may be required to be redeemed or prepaid on
account of the relevant change of control shall have been redeemed or prepaid
prior to any such redemption of Capital Stock, (ii) is redeemable at the option
of the holder thereof (for consideration other than shares of common stock of
the Borrower) at any time prior to such date or (iii) is convertible into or
exchangeable for debt securities of the Borrower or any of its Subsidiaries at
any time prior to such anniversary.
"Refinancing" means, as to any Indebtedness, the incurrence of other
Indebtedness to refinance such existing Indebtedness; provided that, in the case
of such other Indebtedness, the following conditions are satisfied:
(i) the weighted average life to maturity of such refinancing
Indebtedness shall be greater than or equal to the weighted average
life to maturity of the Indebtedness being refinanced, and the first
scheduled principal payment in respect of such refinancing
Indebtedness shall not be earlier than the first scheduled principal
payment in respect of the Indebtedness being refinanced;
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(ii) the principal amount of such refinancing Indebtedness
shall be less than or equal to the principal amount then outstanding
of the Indebtedness being refinanced;
(iii) the respective obligor or obligors shall be the same on
the refinancing Indebtedness as on the Indebtedness being
refinanced;
(iv) the security, if any, for the refinancing Indebtedness
shall be the same as that for the Indebtedness being refinanced
(except to the extent that less security is granted to holders of
refinancing Indebtedness);
(v) the refinancing Indebtedness is subordinated to the
Obligations to the same degree, if any, or to a greater degree as
the Indebtedness being refinanced; and
(vi) no material terms applicable to such refinancing
Indebtedness or, if applicable, the related guarantees of such
refinancing Indebtedness (including covenants, events of default,
remedies, acceleration rights) shall be more favorable to the
refinancing lenders than the terms that are applicable under the
instruments and documents governing the Indebtedness being
refinanced.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Fund" means, with respect to any Lender that is a Fund, any other
Fund that is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Related Norilsk Palladium Hedge" is defined in the definition of "Norilsk
Palladium Proceeds".
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 10.11.3.
"Required Lenders" means, at any time,
(a) with respect to any provision of this Agreement or other Loan
Document other than (i) the declaration of the acceleration of the
maturity of all or any portion of the outstanding principal amount of the
Loans and other Obligations to be due and payable pursuant to Section 8.3,
or (ii) the taking of any other remedial action under this Agreement or
any other Loan Document, Non-Defaulting Lenders holding at least a
majority of the sum of (A) the Revolving Loan Commitment Amount held by
Non-Defaulting Lenders (or, following the Revolving Loan Commitment
Termination Date, the aggregate principal amount of the Revolving Loans
held by Non-Defaulting Lenders then outstanding plus the Letter of Credit
Outstandings (after giving effect to the participation of the
Non-Defaulting Lenders therein)) and (B) the Term Loan Commitment Amount
held by Non-Defaulting Lenders (or, if the Term Loans have been made, the
aggregate principal amount of the Term Loans held by Non-Defaulting
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Lenders then outstanding); provided, however, that any termination of the
Revolving Loan Commitments pursuant to Section 8.3 shall only require
Non-Defaulting Lenders having at least a majority of the Revolving Loan
Commitment Amount held by Non-Defaulting Lenders, or
(b) with respect to (i) the declaration of the acceleration of the
maturity of all or any portion of the outstanding principal amount of the
Loans and other Obligations to be due and payable pursuant to Section 8.3
or (ii) the taking of any other remedial action under this Agreement or
any other Loan Document, Lenders holding at least a majority of the sum of
the aggregate principal amount of outstanding Loans plus the Letter of
Credit Outstandings (after giving effect to the participation of the
Lenders therein)
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Restricted Payment" means the declaration or payment of any dividend
(other than dividends payable solely in common stock of the Borrower) on, or the
making of any payment or distribution on account of, or setting apart assets for
a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of any class of Capital Stock of the Borrower or
any Subsidiary or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or the making of any other distribution in
respect thereof, either directly or indirectly, whether in cash or property,
obligations of the Borrower or any Subsidiary or otherwise.
"Revolving Loan" is defined in Section 2.1.1. Unless the context otherwise
requires, the term "Revolving Loans" shall also include Revolving Loans made by
Increasing Revolving Loan Lenders and Augmenting Revolving Loan Lenders pursuant
to Section 2.9.
"Revolving Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Revolving Loans pursuant to Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $40,000,000, as
such amount may be permanently reduced from time to time pursuant to Section
2.2.
"Revolving Loan Commitment Termination Date" means the earliest of
(a) July 31, 2009;
(b) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding clauses (b) or (c),
the Revolving Loan Commitments shall terminate automatically and without any
further action.
"Revolving Loan Lender" is defined Section 2.1.1.
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"Revolving Note" means a promissory note of the Borrower payable to any
Revolving Loan Lender, in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Revolving Loan
Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"RL Percentage" means, relative to any Lender, the applicable percentage
relating to Revolving Loans set forth opposite its name on Schedule II hereto
under the Revolving Loan Commitment column or set forth in a Lender Assignment
Agreement under the Revolving Loan Commitment column, as such percentage may be
adjusted from time to time pursuant to Lender Assignment Agreement(s) executed
by such Lender and its Assignee Lender(s) and delivered pursuant to Section
10.11.1. A Lender shall not have any Revolving Loan Commitment if its percentage
under the Revolving Loan Commitment column is zero (0%).
"S&P" means Standard & Poor's Rating Services.
"SEC" means the Securities and Exchange Commission.
"Secondary Materials" means the platinum group metals that are processed
by the Borrower through the Borrower's metallurgical complex from recycled spent
catalytic converter and petroleum catalyst materials purchased by the Borrower.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Administrative Agent, each counterparty to a Lender Hedging Agreement that is
(or at the time such Lender Hedging Agreement was entered into, was) a Lender or
an Affiliate of a Lender or the Administrative Agent and (in each case) each of
their respective successors, transferees and assigns.
"Security Agreement" means, as the context may require, the Borrower
Security Agreement and each Subsidiary Security Agreement and Foreign Pledge
Agreement, in each case as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Stated Amount" means, on any date and with respect to a particular Letter
of Credit, the total amount then available to be drawn under such Letter of
Credit.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means
(a) with respect to all Term Loans, July 30, 2010;
(b) with respect to all Revolving Loans, July 31, 2009.
"Stockholders Agreement" means the Stockholders Agreement among the
Borrower, Norimet and Norilsk, dated as of June 23, 2003, as amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and hereof.
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"Subordinated Debt" means all unsecured Indebtedness of the Borrower for
money borrowed which is subordinated in right of payment to the payment in full
in cash of all Obligations pursuant to documentation containing terms that are
reasonably satisfactory to the Administrative Agent (provided such terms shall
not include any scheduled principal payment (including any sinking fund
requirement) prior to August 3, 2011 and any cross-default (other than
cross-acceleration) to other Indebtedness).
"Subordinated Debt Documents" means, collectively, the loan agreements,
indentures, note purchase agreements, promissory notes, guarantees, and other
instruments and agreements evidencing the terms of Subordinated Debt, as
amended, supplemented, amended and restated in accordance with Section 7.2.12.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership or other entity of which more than 50% of the
outstanding securities (or other ownership interest) having ordinary voting
power to elect the board of directors, managers or other voting members of the
governing body of such corporation, limited liability company, partnership or
other entity (irrespective of whether at the time securities (or other ownership
interest) of any other class or classes of such corporation, limited liability
company, partnership or other entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled 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. Unless the
context otherwise specifically requires, the term "Subsidiary" shall be a
reference to a Subsidiary of the Borrower.
"Subsidiary Guaranty" means each Subsidiary Guaranty executed and
delivered by a Subsidiary pursuant to the terms of this Agreement, substantially
in the form of Exhibit J hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time.
"Subsidiary Security Agreement" means, collectively, each Security
Agreement executed and delivered by a Subsidiary in favor of the Administrative
Agent for the benefit of the Secured Parties pursuant to the terms of this
Agreement, in substantially the form of Exhibit H, in each case, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Substitute Lender" is defined in Section 4.11.
"Substitution Notice" is defined is Section 4.11.
"Supply Contract Counterparty" means each Material Supply Contract
Counterparty and each other Person who enters into any Supply Contract with the
Borrower or any Subsidiary.
"Supply Contract Counterparty Notice" means a duly completed notice in the
form of Exhibit F-2 attached hereto, with such modification thereto as may be
agreed to by the Administrative Agent or any other form satisfactory to the
Administrative Agent.
"Supply Contracts" means, collectively, (i) each Material Supply Contract
and Additional Supply Contract and (ii) each contract with a term of one year or
more pursuant to which the Borrower agrees to deliver palladium or platinum to a
Supply Contract Counterparty.
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"Synthetic Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (i) that is not a capital lease in accordance
with GAAP and (ii) in respect of which the lessee retains or obtains ownership
of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.
"Taxes" means any and all income, stamp or other taxes, duties, levies,
imposts, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, and all
interest, penalties or similar liabilities with respect thereto.
"TD" is defined in the preamble.
"TDSI" is defined in the preamble.
"Term Loan" is defined in Section 2.1.3. Unless the context shall
otherwise require, the term "Term Loans" shall include Incremental Term Loans.
"Term Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term Loans pursuant to Section 2.1.3. Unless the
context shall otherwise require, the term "Term Loan Commitments" shall also
include the Incremental Term Loan Commitments.
"Term Loan Commitment Amount" means, on any date, $140,000,000, as such
amount may be permanently reduced from time to time pursuant to Section 2.2.
"Term Loan Commitment Termination Date" means the earliest of
(a) August 3, 2004;
(b) the date on which the Term Loan Commitment Amount is terminated
in full or reduced to zero pursuant to the terms of this Agreement; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Term Loan
Commitments shall terminate automatically and without any further action.
"Term Note" means a promissory note of the Borrower payable to any Lender,
in the form of Exhibit A-2 hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding Term
Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Term Percentage" means, relative to any Lender, the applicable percentage
relating to Term Loans set forth opposite its name on Schedule II hereto under
the Term Loan Commitment column or set forth in a Lender Assignment Agreement
under the Term Loan Commitment column, as such percentage may be adjusted from
time to time pursuant to Lender Assignment
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Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.1. A Lender shall not have any Term Loan Commitment if
its percentage under the Term Loan Commitment column is zero (0%).
"Termination Date" means the date on which all Obligations have been paid
in full in cash, all Letters of Credit have been terminated or expired (or the
Administrative Agent shall have received immediately available funds in an
amount equal to all Letter of Credit Outstandings, deposited in a cash
collateral account with the Administrative Agent or its designee on terms
satisfactory to the Administrative Agent), all Lender Hedging Agreements have
been terminated (except as set forth in Section 9.13 hereof) and all Commitments
shall have terminated.
"Title Opinions" is defined in Section 5.1.17.
"Total Exposure Amount" means, on any date of determination (and without
duplication), the outstanding principal amount of all Loans, the aggregate
amount of all Letter of Credit Outstandings and the unfunded amount of the
Commitments.
"Trademark Security Agreement" means any Trademark Security Agreement
executed and delivered by any Obligor for the benefit of the Secured Parties
substantially in the form of Exhibit B to any Security Agreement, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Tranche" means, as the context may require, the Term Loans or the
Revolving Loans and, when used in reference to any Commitment, refers to the
Term Loan Commitment or the Revolving Loan Commitment.
"Transaction" means the Existing CA Refinancing, the financing to be
provided hereunder and all transactions related thereto.
"Transaction Documents" means, collectively, the Loan Documents and the
Initial Supply Contracts, in each case as amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with the terms
hereof.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in effect
in the State of New York.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
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"Welfare Plan" means a "welfare plan", as such term is defined in Section
3(1) of ERISA.
"Wholly Owned Subsidiary" means any Subsidiary all of the outstanding
common stock (or similar equity interest) of which (other than any director's
qualifying shares or investments by foreign nationals mandated by applicable
laws) is owned directly or indirectly by the Borrower.
SECTION 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 each other Loan Document and the
Disclosure Schedule.
SECTION 1.3. Cross-References; Interpretation. 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 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. References in this Agreement
and in each other Loan Document to the term "law" shall be deemed to include any
statute, law, code, rule, treaty, convention, regulation, order, decree, consent
decree, injunction, directive, determination or other requirement (whether or
not having the force of law, but, if not having the force of law, the compliance
with which law would be prudent for the Person subject to such law) and, where
applicable, any interpretation thereof by any Governmental Authority having
jurisdiction with respect thereto or charged with the administration or
interpretation thereof, whether national, federal, supranational, tribal,
regional, state or local.
SECTION 1.4. Accounting and Financial Determinations. (a) Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, and all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, in accordance with,
generally accepted accounting principles ("GAAP"). Unless otherwise expressly
provided, all financial covenants and defined financial terms shall be computed
on a consolidated basis for the Borrower and its Subsidiaries, in each case
without duplication.
(a) If the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VII or any related
definition to eliminate the effect of any change in GAAP occurring after
the date of this Agreement on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish
to amend Article VII or any related definition for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis
of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is
amended in a manner reasonably satisfactory to the Borrower and the
Required Lenders. In the event of any such notification from the Borrower
or the Administrative Agent and until such notice is withdrawn or such
covenant is so amended, the Borrower will furnish to each Lender and the
Administrative Agent, in addition to the financial statements required to
be furnished pursuant to Section 7.1.1 (the "Current GAAP Financials"),
(i) the financial statements described in such Section based upon GAAP as
in effect at the time such covenant was agreed to (the "Prior
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GAAP Financials") and (ii) a reconciliation between the Prior GAAP
Financials and the Current GAAP Financials.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCe
PROCEDURES, NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement, the Lenders and the Issuers severally agree to make Credit
Extensions as set forth below.
SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Revolving Loan Commitment Termination Date, each Lender that has a Revolving
Loan Commitment (referred to as a "Revolving Loan Lender"), will make loans
(relative to such Lender, its "Revolving Loans") to the Borrower equal to such
Lender's RL Percentage of the aggregate amount of each Borrowing of the
Revolving Loans requested by the Borrower to be made on such day. On the terms
and subject to the conditions hereof, the Borrower may from time to time borrow,
prepay and reborrow Revolving Loans.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Revolving Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby letters of credit (relative to such
Issuer, its "Letter of Credit") for the account of the Borrower or any
Guarantor in the Stated Amount requested by the Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby Letter of
Credit previously issued hereunder to a date not later than the earlier of
(x) the Revolving Loan Commitment Termination Date and (y) unless
otherwise agreed to by the Issuer in its sole discretion, one year from
the date of such extension.
SECTION 2.1.3. Term Loan Commitment. In a single Borrowing on any Business
Day occurring from and after the Effective Date but prior to the Term Loan
Commitment Termination Date, each Lender that has a Term Loan Commitment will
make loans (relative to such Lender, its "Term Loans") to the Borrower equal to
such Lender's Term Percentage of the aggregate amount of the Borrowing of Term
Loans requested by the Borrower to be made on such day (with the commitment of
each such Lender described in this clause herein referred to as its "Term Loan
Commitment"). No amounts paid or prepaid with respect to Term Loans may be
reborrowed.
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans. No Lender
shall be permitted or required to make any Loan if, after giving effect thereto,
the aggregate outstanding principal amount of
(a) all Revolving Loans
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(i) of all Revolving Loan Lenders, together with the aggregate
amount of all Letter of Credit Outstandings, would exceed the then
existing Revolving Loan Commitment Amount; or
(ii) of such Revolving Loan Lender, together with such
Lender's RL Percentage of the aggregate amount of all Letter of
Credit Outstandings, would exceed such Lender's RL Percentage of the
then existing Revolving Loan Commitment Amount; or
(b) all Term Loans of all Lenders holding Term Loan Commitments would
exceed the Term Loan Commitment Amount;
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans then outstanding would exceed
the Revolving Loan Commitment Amount.
SECTION 2.1.6. Incremental Term Loan Commitment. Each Lender having an
Incremental Term Loan Commitment hereby agrees, severally and not jointly, on
the terms and subject to the conditions set forth herein and in the applicable
Incremental Term Loan Supplement and in reliance on the representations and
warranties set forth herein and in the other Loan Documents, to make Incremental
Term Loans to the Borrower, as specified in the applicable Incremental Term Loan
Supplement, in an aggregate principal amount not to exceed its Incremental Term
Loan Commitment. Amounts paid or prepaid in respect of Incremental Term Loans
may not be reborrowed.
SECTION 2.2. Reduction of the Commitment Amounts. The Borrower may, from
time to time on any Business Day occurring after the Effective Date, voluntarily
reduce the amount of the Revolving Loan Commitment Amount, the Letter of Credit
Commitment Amount, or the Term Loan Commitment Amount on the Business Day so
specified by the Borrower; provided, however, that all such reductions shall
require at least one Business Day's prior notice to the Administrative Agent and
be permanent, and any partial reduction of any Commitment Amount shall be in a
minimum amount of $1,000,000 and in an integral multiple of $500,000. Any
optional or mandatory reduction of the Revolving Loan Commitment Amount pursuant
to the terms of this Agreement which reduces the Revolving Loan Commitment
Amount below the Letter of Credit Commitment Amount shall result in an automatic
and corresponding reduction of the Letter of Credit Commitment Amount (as
directed by the Borrower in a notice to the Administrative Agent delivered
together with the notice of such voluntary reduction in the Revolving Loan
Commitment Amount) to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of any
Issuer.
SECTION 2.3. Borrowing Procedures. Loans shall be made by the Lenders in
accordance with Section 2.3.1.
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SECTION 2.3.1. Borrowing Procedure. By delivering a Borrowing Request to
the Administrative Agent on or before 10:00 a.m., New York time, on a Business
Day, the Borrower may from time to time irrevocably request, on not less than
one Business Day's notice in the case of Base Rate Loans, or three Business
Days' notice in the case of LIBO Rate Loans, and in either case not more than
five Business Days' notice, that a Borrowing be made, in the case of LIBO Rate
Loans, in a minimum amount of $2,000,000 and in integral multiple of $500,000,
in the case of Base Rate Loans, in a minimum amount of $1,000,000 and an
integral multiple of $100,000 or, in either case, in the unused amount of the
applicable Commitment. On the terms and subject to the conditions of this
Agreement, each Borrowing shall be comprised of the type of Loans, and shall be
made on the Business Day, specified in such Borrowing Request. On or before
11:00 a.m. (New York time) on such Business Day each Lender that has a
Commitment to make the Loans being requested shall deposit with the
Administrative Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the Administrative
Agent shall make such funds available to the Borrower by wire transfer to the
accounts the Borrower shall have specified in its Borrowing Request. No Lender's
obligation to make any Loan shall be affected by any other Lender's failure to
make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 10:00
a.m., New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice in the case of
Base Rate Loans, or three Business Days' notice in the case of LIBO Rate Loans,
and in either case not more than five Business Days' notice, that all, or any
portion in an aggregate minimum amount of $2,000,000 and an integral multiple of
$500,000 be, in the case of Base Rate Loans, converted into LIBO Rate Loans or
be, in the case of LIBO Rate Loans, converted into Base Rate Loans or continued
as LIBO Rate Loans (in the absence of delivery of a Continuation/Conversion
Notice with respect to any LIBO Rate Loan at least three Business Days (but not
more than five Business Days) before the last day of the then current Interest
Period with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that (x) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders that have made such Loans, and (y) no portion
of the outstanding principal amount of any Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
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SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 10:00 a.m., New York time, on a Business
Day, the Borrower may from time to time irrevocably request on not less than
five nor more than ten Business Days' notice, in the case of an initial issuance
of a Letter of Credit and not less than five Business Days' prior notice, in the
case of a request for the extension of the Stated Expiry Date of a standby
Letter of Credit or an increase in the Stated Amount of a Letter of Credit, that
an Issuer issue, or extend the Stated Expiry Date of or increase the Stated
Amount of, as the case may be, an irrevocable Letter of Credit in such form as
may be requested by the Borrower and approved by such Issuer, solely for the
purposes described in Section 7.1.7. Each Letter of Credit shall by its terms be
stated to expire on a date (its "Stated Expiry Date") no later than the earlier
to occur of (i) the thirtieth day preceding the Revolving Loan Commitment
Termination Date or (ii) (unless otherwise agreed to by an Issuer, in its sole
discretion) one year from the date of its issuance. Each Issuer will make
available to the beneficiary thereof the original of the Letter of Credit which
it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by an Issuer pursuant hereto and each increase in the
Stated Amount of an existing Letter of Credit issued pursuant hereto, and
without further action, each Revolving Loan Lender (other than such Issuer)
shall be deemed to have irrevocably purchased, to the extent of its RL
Percentage, a participation interest in such Letter of Credit and any such
increase (including the Contingent Liability and any Reimbursement Obligation
with respect thereto), and each Credit-Linked Revolving Loan Lender shall be
obligated to pay for such purchase at the time of such issuance or increase by
depositing cash (irrespective of any setoff, counterclaim or defense to payment)
in an amount equal to its RL Percentage of the Stated Amount of such Letter of
Credit or the increase of the Stated Amount of such existing Letter of Credit,
as the case may be, into the Credit-Linked Deposit Account. Each Revolving Loan
Lender shall, to the extent of its RL Percentage, be responsible for reimbursing
promptly (and in any event within one Business Day), whether or not any Default
shall have occurred and be continuing, the Issuer for Reimbursement Obligations
which have not been reimbursed by the Borrower in accordance with Section 2.6.3
or which have been so reimbursed but which is subsequently required to be
disgorged or refunded to the Borrower for any reason, provided that, in the case
of a Credit-Linked Revolving Loan Lender that has complied with its obligations
under the immediately preceding sentence with respect to the Letter of Credit
from which such Reimbursement Obligations have arisen, the Administrative Agent
shall reimburse the Issuer for the amount of such Credit-Linked Revolving Loan
Lender's obligation from such Credit-Linked Revolving Loan Lender's
Credit-Linked Deposit on deposit in the Credit-Linked Deposit Account. In
addition, each Revolving Loan Lender shall, to the extent of its RL Percentage,
be entitled to receive a ratable portion of the Letter of Credit fees payable
pursuant to Section 3.3.3 with respect to each Letter of Credit (other than the
issuance fees payable to an Issuer of such Letter of Credit pursuant to the last
sentence of Section 3.3.3) and of interest payable pursuant to Section 3.2 with
respect to any Reimbursement Obligation. To the extent that any Revolving Loan
Lender has reimbursed any Issuer for a Disbursement (including pursuant to a
withdrawal from such Revolving Loan Lender's Credit-Linked Deposit), such Lender
shall be entitled to receive its ratable portion of any amounts subsequently
received (from the Borrower or otherwise) in respect of such Disbursement.
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SECTION 2.6.2. Disbursements. An Issuer will notify the Borrower and the
Administrative Agent promptly of the presentment for payment of any Letter of
Credit issued by such Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit,
the applicable Issuer shall make such payment to the beneficiary (or its
designee) of such Letter of Credit. Prior to 11:00 a.m. New York time, on the
first Business Day following the Disbursement Date, the Borrower will reimburse
the Administrative Agent, for the account of the applicable Issuer, for all
amounts which such Issuer has disbursed under such Letter of Credit, together
with interest thereon at a rate per annum equal to the rate per annum then in
effect for Base Rate Loans (with the then Applicable Margin for Revolving Loans
accruing on such amount) pursuant to Section 3.2 for the period from the
Disbursement Date through the date of such reimbursement. Without limiting in
any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement of a Letter of Credit, and it shall be
deemed to be the obligor for purposes of each such Letter of Credit issued
hereunder (whether the account party on such Letter of Credit is the Borrower or
a Subsidiary).
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse an Issuer with
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrower to reimburse an Issuer, each Revolving Loan Lender's obligation
under Section 2.6.1 to reimburse an Issuer, shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or such Revolving Loan Lender, as the case
may be, may have or have had against such Issuer or any Lender, including any
defense based upon the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in such Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of the Borrower or
such Lender, as the case may be, to commence any proceeding against an Issuer
for any wrongful Disbursement made by such Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or willful misconduct
on the part of such Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default under Section 8.1.9 or any Default under
clause (c) or (d) of Section 8.1.9 which, after the lapse of 60 days, would
constitute an Event of Default or upon notification by the Administrative Agent
(acting at the direction of the Required Lenders) to the Borrower of its
obligations under this Section, following the occurrence and during the
continuation of any other Event of Default,
(a) the aggregate Stated Amount of all Letters of Credit shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the Issuers of such Letters of
Credit (notwithstanding that such amount may not in fact have been paid or
disbursed); and
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(b) the Borrower shall be immediately obligated to reimburse the
Issuers for the amount deemed to have been so paid or disbursed by such
Issuers.
Amounts payable by the Borrower pursuant to this Section shall be deposited in
immediately available funds with the Administrative Agent and held as collateral
security for the Reimbursement Obligations. When all Defaults giving rise to the
deemed disbursements under this Section have been cured or waived the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section which have not been
applied to the satisfaction of the Reimbursement Obligations; provided that each
Credit-Linked Revolving Loan Lender shall have deposited into the Credit-Linked
Deposit Account cash in an amount equal to its RL Percentage of the Stated
Amount of all Letters of Credit outstanding at such time. Each Credit-Linked
Revolving Loan Lender agrees to make such deposit.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower, each
other Obligor and, to the extent set forth in Section 2.6.1, each Revolving Loan
Lender shall assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. No Issuer (except to the extent of its own
gross negligence or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise;
or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter
of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Revolving Loan Lender hereunder.
In furtherance and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by an Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon each
Obligor and each such Secured Party, and shall not put such Issuer under any
resulting liability to any Obligor or any Secured Party, as the case may be.
SECTION 2.6.6. Credit-Linked Deposit Account. (a) The Credit-Linked
Deposits shall be held by the Administrative Agent in the Credit-Linked Deposit
Account, and no party other
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than the Administrative Agent shall have a right of withdrawal from the
Credit-Linked Deposit Account or any other right or power with respect to the
Credit-Linked Deposits.
(b) Each of the Administrative Agent, the Issuer and each Credit-Linked
Revolving Loan Lender hereby acknowledges and agrees that each Credit-Linked
Revolving Loan Lender is funding its Credit-Linked Deposit to the Administrative
Agent for application in the manner contemplated by Section 2.6.1 and that the
Administrative Agent has agreed to invest the Credit-Linked Deposits so as to
earn a return (except during periods when such Credit-Linked Deposits are used
to cover unreimbursed Reimbursement Obligations) for such Credit-Linked
Revolving Loan Lender equal at any time to the LIBO Rate for the Interest Period
in effect for the Credit-Linked Deposits at such time. Such interest will be
paid to the Credit-Linked Revolving Loan Lenders by the Administrative Agent at
the applicable LIBO Rate in arrears on the last day of each Interest Period
applicable to the Credit-Linked Deposits.
(c) The Borrower shall have no right, title or interest in or to the
Credit-Linked Deposits and no obligations with respect thereto, it being
acknowledged and agreed by the parties hereto that the making of the
Credit-Linked Deposits by the Credit-Linked Revolving Loan Lenders, the
provisions of this Section 2.6.6 and the application of the Credit-Linked
Deposits in the manner contemplated by Section 2.6.1 constitute agreements among
the Administrative Agent, the Issuer and each Credit-Linked Revolving Loan
Lender with respect to the funding obligations of each Credit-Linked Revolving
Loan Lender in respect of its participation in Letters of Credit and do not
constitute any additional loan or extension of credit to the Borrower.
(d) Each Credit-Linked Revolving Loan Lender hereby grants to the
Administrative Agent, for the benefit of the Issuer, a security interest in all
right, title and interest of such Credit-Linked Revolving Loan Lender in the
Credit-Linked Deposit of such Credit-Linked Revolving Loan Lender, as security
for the obligations of such Credit-Linked Revolving Loan Lender to the Issuer
under this Section 2.6. For purposes of perfecting such security interest, each
Credit-Linked Revolving Loan Lender hereby instructs The Toronto-Dominion Bank
as the bank in which the Credit-Linked Deposits are maintained, and The
Toronto-Dominion Bank hereby agrees, to follow the instructions of the
Administrative Agent in respect of the Credit-Linked Deposit of such
Credit-Linked Revolving Loan Lender without further consent by such
Credit-Linked Revolving Loan Lender.
SECTION 2.6.7. Return of Credit-Linked Deposits. (a) In the event any
Letter of Credit expires or is terminated or the Stated Amount of any Letter of
Credit is reduced (other than as a result of a Disbursement thereunder), the
Borrower shall notify the Administrative Agent of such expiration, termination
or reduction and, following such notification, the Administrative Agent shall
return to each Credit-Linked Revolving Loan Lender the portion of its
Credit-Linked Deposit that relates to such expired or terminated Letter of
Credit or to such reduction.
(b) In the event the Stated Amount of any Letter of Credit is reduced as a
result of a Disbursement thereunder and to the extent the Borrower has
reimbursed the Issuer with respect to such Disbursement and 91 days has elapsed
following such reimbursement, the Issuer shall notify the Administrative Agent
of such reimbursement and the Administrative Agent, following such notification,
shall return to each Credit-Linked Revolving Loan Lender the portion of its
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Credit-Linked Deposit that relates to such reduction (to the extent the related
Disbursement has been so reimbursed).
(c) To the extent the Borrower has complied with its obligations under
Section 2.6.4 or Sections 3.1.1 and 3.1.2 and 91 days have elapsed from the date
of such compliance, the Administrative Agent shall, so long as an Event of
Default described under Section 8.1.9 has not occurred, return to each
Credit-Linked Revolving Loan Lender the portion of its Credit-Linked Deposit
that relates to the Stated Amount of Letters of Credit as to which the Borrower
has complied with the provisions of Section 2.6.4 or Sections 3.1.1 and 3.1.2,
as the case may be.
(d) In the event that the Issuer and the Administrative Agent are
reasonably satisfied that a Credit-Linked Revolving Loan Lender is a Revolving
Loan Lender, but no longer a Credit-Linked Revolving Loan Lender, the
Administrative Agent shall return to such Revolving Loan Lender its
Credit-Linked Deposit.
SECTION 2.7. Loan Accounts; Notes. (a) Each Lender may maintain in
accordance with its usual practice an account or accounts evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder. In the case of a Lender that does not
request, pursuant to clause (b) below, execution and delivery of a Note
evidencing the Loans made by such Lender to the Borrower, such account or
accounts shall, to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the Borrower
absent manifest error; provided, however, that the failure of any Lender to
maintain such account or accounts shall not limit or otherwise affect any
Obligations of the Borrower or any other Obligor.
(b) The Borrower agrees that, upon the request to the Administrative Agent
by any Lender, the Borrower will promptly execute and deliver to such Lender, as
applicable, a Note evidencing the Loans made by such Lender. The Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender's Notes (or on any continuation of
such grid), which notations, if made, shall evidence, inter alia, the date of,
the outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall, to the extent
not inconsistent with the notations made by the Administrative Agent in the
Register, be conclusive and binding on the Borrower absent manifest error;
provided, however, that the failure of any Lender to make any such notations
shall not limit or otherwise affect any Obligations of the Borrower or any other
Obligor
SECTION 2.8. Increase in Term Loan Commitments. (a) The Borrower may, by
written notice to the Administrative Agent from time to time, request
Incremental Term Loan Commitments in an aggregate amount not to exceed the
Incremental Term Loan Amount; provided that such Incremental Term Loan
Commitment may not be extended to the Borrower without the prior written consent
of the Non-Defaulting Lenders holding at least a majority of the aggregate
principal amount of the Term Loans held by Non-Defaulting Lenders then
outstanding and the Non-Defaulting Lenders holding at least a majority of the
Revolving Loan Commitment Amount held by Non-
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Defaulting Lenders (or, following the Revolving Loan Commitment Termination
Date, the aggregate principal amount of the Revolving Loans held by
Non-Defaulting Lenders then outstanding plus the Letter of Credit Outstandings
(after giving effect to the participation of the Non-Defaulting Lenders
therein)). Upon the receipt of such request by the Administrative Agent, the
Administrative Agent shall deliver a copy thereof to each Lender. Such notice
(i) shall set forth the amount of the Incremental Term Loan Commitments being
requested (which shall be in minimum increments of $5,000,000 and a minimum
amount of $25,000,000 or equal to the remaining Incremental Term Loan Amount),
(ii) shall set forth the date on which such Incremental Term Loan Commitments
are requested to become effective (which shall not be less than fifteen Business
Days nor more than forty-five days after the date of such notice), (iii) shall
offer each existing Lender holding Term Loans the opportunity to make such
Incremental Term Loan Commitment in an amount equal to its Term Percentage and
(iv) shall set forth whether such Incremental Term Loan Commitments are to be
commitments to make term loans under (and subject to the terms of) this
Agreement, but with a different final maturity date, average life to maturity or
yield than the Term Loans (any such term loans, the "Other Term Loans"). Each
Lender shall, by notice to the Borrower and the Administrative Agent given not
more than ten Business Days after the date of the Administrative Agent's notice,
(i) either agree to make such Incremental Term Loan Commitment by all or a
portion of the offered amount or decline to make such Incremental Term Loan
Commitment and (ii) if it is not agreeing to participate in such Incremental
Term Loan Commitment, whether it consents to the extension of such Incremental
Term Loan Commitment by other Persons (and any Lender that does not deliver such
a notice within such period of ten Business Days shall be deemed to have
declined to so participate or consent). In the event that, on the eleventh
Business Day after the Administrative Agent shall have delivered a notice
pursuant to the second sentence of this paragraph, the amount of the Incremental
Term Loan Commitments that the existing Lenders are willing to provide are less
than the Incremental Term Loan Commitments requested by the Borrower and the
Required Lenders have otherwise consented to the extension of such Incremental
Term Loan Commitments, the Borrower may arrange for one or more banks or other
entities to extend Incremental Term Loan Commitments in an aggregate amount
equal to the unsubscribed amount; provided, however, that each Incremental Term
Loan Lender, if not already a Lender hereunder, shall be subject to the prior
approval of the Administrative Agent (which approval shall not be unreasonably
withheld).
(b) The Borrower and each Incremental Term Loan Lender shall execute and
deliver to the Administrative Agent an Incremental Term Loan Supplement and such
other documentation as the Administrative Agent shall reasonably specify to
evidence the Incremental Term Loan Commitment of such Incremental Term Loan
Lender. Each Incremental Term Loan Supplement shall specify the terms of the
Incremental Term Loans to be made thereunder; provided, however, that, without
the prior written consent of Lenders holding a majority in interest of the
outstanding Term Loans and Term Loan Commitments,
(i) the final maturity date of any Other Term Loans shall be
no earlier than (x) the Stated Maturity Date for Term Loans and (y)
if the initial yield (determined as provided below) on such Other
Term Loans exceeds the Applicable Margin then in effect for LIBO
Rate Loans, the date falling six months after the Stated Maturity
Date for Term Loans;
(ii) the average life to maturity of any Other Term Loans
determined as of the date of the proposed borrowing thereof shall be
no shorter than (x) the average
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life to maturity of the Term Loans and (y) if the initial yield
(determined as provided below) on such Other Term Loans exceeds the
Applicable Margin then in effect for Term Loans that are LIBO Rate
Loans, six months longer than the average life to maturity of the
Term Loans; and
(iii) if the initial yield on any Other Term Loans (as
determined by the Administrative Agent to be equal to the sum of (x)
the LIBO Rate (Reserve Adjusted) margins on the Other Term Loans and
(y) if the Other Term Loans are initially made at a discount or the
lenders making the same receive a fee from (or on behalf of) the
Borrower for doing so (the amount of such discount or fee, expressed
as a percentage of the Other Term Loans, being referred to herein as
"OID") and if the amount of such OID divided by the lesser of (A)
the average life to maturity of such Other Term Loans and (B) four
exceeds by more than 25 basis points (the amount of such excess
above 25 basis points being referred to herein as the "Yield
Differential") the Applicable Margin then in effect for Term Loans
that are LIBO Rate Loans, then each Applicable Margin for the Term
Loans shall automatically be increased by the Yield Differential,
effective upon the making of the Other Term Loans.
The Administrative Agent shall promptly notify each applicable Lender as to the
effectiveness of each Incremental Term Loan Supplement. Each of the parties
hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan
Supplement, this Agreement shall be deemed amended to the extent (but only to
the extent) necessary to reflect the existence and terms of the Incremental Term
Loan Commitment evidenced thereby and any increase to the Applicable Margins
required by the foregoing provisions of this clause (b). Any such deemed
amendment may be memorialized in writing by the Administrative Agent with the
Borrower's consent (not to be unreasonably withheld) and furnished to the other
parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment
shall become effective under this Section 2.8 unless (i) on the date of such
effectiveness, the conditions set forth in Section 5.2 shall be satisfied and
the Administrative Agent shall have received a certificate to that effect dated
such date and executed by an Authorized Officer of the Borrower, (ii) if
requested, the Administrative Agent shall have received legal opinions, board
resolutions and other closing certificates and documentation consistent with
those delivered on the Closing Date under Section 5.1 and (iii) the Borrower
would be in pro forma compliance with the terms of this Agreement after giving
effect to such Incremental Term Loan Commitment and the Loans to be made
thereunder and the application of the proceeds therefrom as if made and applied
on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent
may take any and all action as may be reasonably necessary to ensure that all
Incremental Term Loans (other than Other Term Loans), when originally made, are
included in each Borrowing of outstanding Term Loans. This may be accomplished
at the discretion of the Administrative Agent by requiring each outstanding Term
Loan made as a LIBO Rate Loan to be converted into a Base Rate Loan on the date
of each Incremental Term Loan, or by allocating a portion of each Incremental
Term Loan to each outstanding Term Loan made as a LIBO Rate Loan on a pro rata
basis, even though as a result thereof such Incremental Term Loan may
effectively have a shorter
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Interest Period than the Term Loans included in the Borrowing of which they are
a part (and notwithstanding any other provision of this Agreement that would
prohibit such an initial Interest Period). Any conversion of Term Loans made as
LIBO Rate Loans to Base Rate Loans made pursuant to the preceding sentence shall
be subject to Section 4.4. In addition, to the extent any Incremental Term Loans
are not Other Term Loans, the scheduled amortization payments under clause (g)
of Section 3.1.1 required to be made after the making of such Incremental Term
Loans shall be ratably increased by the aggregate principal amount of such
Incremental Term Loans.
SECTION 2.9. Increase in Revolving Loan Commitments. (a) The Borrower may,
at any time prior to January 31, 2005, by written notice to the Administrative
Agent, request that the total Revolving Loan Commitment be increased by an
aggregate amount not to exceed the Incremental Revolving Loan Amount at such
time. Such notice shall set forth the amount of the requested increase (which
shall be in minimum increments of $500,000 and a minimum amount of $2,500,000 or
equal to the remaining Incremental Revolving Loan Amount) and the date on which
such increase is requested to become effective (which shall be not less than 10
days nor more than 60 days after the date of such notice), and shall also set
forth the banks or other entities, which may include any Lender (any such bank
or other entity (other than any such bank or entity that is a Revolving Loan
Lender) being called an "Augmenting Revolving Loan Lender" and each Revolving
Loan Lender so agreeing to increase its Commitments being an "Increasing
Revolving Loan Lender") agreeing to extend or increase (as the case may be)
Revolving Loan Commitments and the amount of each such Commitment; provided,
however, that each Augmenting Revolving Loan Lender shall be subject to the
prior written approval of the Administrative Agent and the Issuer (which
approvals shall not be unreasonably withheld), and the Borrower and each
Increasing Revolving Loan Lender and Augmenting Revolving Loan Lender shall
execute all such documentation as the Administrative Agent shall reasonably
specify to evidence its Revolving Loan Commitment and/or its status as a
Revolving Loan Lender hereunder. Any such increase may be made in an amount that
is less than the increase requested by the Borrower if the Borrower is unable to
arrange for, or chooses not to arrange for, Augmenting Revolving Loan Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent
may take any and all actions as may be reasonably necessary to ensure that,
after giving effect to any increase pursuant to this Section 2.9, the
outstanding Revolving Loans (if any) are held by the Revolving Loan Lenders in
accordance with their new RL Percentages. This may be accomplished at the
discretion of the Administrative Agent, following consultation with the
Borrower, (i) by requiring the outstanding Revolving Loans to be prepaid with
the proceeds of a new Revolving Loan Borrowing, (ii) by causing Non-Increasing
Revolving Loan Lenders to assign portions of their outstanding Revolving Loans
to Increasing Revolving Loan Lenders and/or Augmenting Revolving Loan Lenders,
or (iii) by any combination of the foregoing. Any prepayment or assignment
described in this paragraph (b) shall be subject to Section 4.4, but shall
otherwise be without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Revolving Loan
Commitments shall become effective under this Section 2.9 unless, (i) on the
date of such increase, the conditions set forth in Section 5.2 shall be
satisfied and the Administrative Agent shall have received a certificate to that
effect dated such date and executed by an Authorized Officer of the Borrower,
and (ii) if requested, the Administrative Agent shall have received legal
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opinions and board resolutions consistent with those delivered on the Closing
Date under Section 5.1.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application. The Borrower agrees
that the Loans shall be repaid and prepaid pursuant to the following terms.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan on its Stated Maturity Date (or,
in the case of Incremental Term Loans, on the Incremental Term Loan Maturity
Date). Prior thereto, payments and prepayments of Loans shall or may be made as
set forth below.
(a) From time to time on any Business Day, the Borrower may make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any Loans; provided, however, that
(i) any such voluntary prepayment of Loans of the same type or
Loans with the same Interest Period shall be made pro rata among the
Lenders that made such Loans (and, in the case of Term Loans,
applied pro rata against the remaining amortization payments for the
Term Loans);
(ii) all such voluntary prepayments shall require at least
three (or, in the case of Base Rate Loans, one) but no more than
five Business Days' prior written notice to the Administrative
Agent; and
(iii) all such voluntary partial prepayments shall be, in the
case of LIBO Rate Loans, in an aggregate minimum amount of
$2,000,000 and an integral multiple of $500,000 and, in the case of
Base Rate Loans, in an aggregate minimum amount of $1,000,000 and an
integral multiple of $100,000.
(b) On each date when the sum of (i) the aggregate outstanding
principal amount of all Revolving Loans and (ii) the aggregate amount of
all Letter of Credit Outstandings exceeds the Revolving Loan Commitment
Amount (as it may be reduced from time to time pursuant to this
Agreement), the Borrower shall make a mandatory prepayment of Revolving
Loans and, if necessary, deposit cash collateral with the Administrative
Agent or its designee pursuant to an agreement satisfactory to the
Administrative Agent to collateralize Letter of Credit Outstandings, in an
aggregate amount equal to such excess.
(c) Within three Business Days of the receipt by the Borrower or any
Subsidiary of any Net Equity Proceeds, the Borrower shall deliver to the
Administrative Agent a calculation of such Net Equity Proceeds and make a
mandatory prepayment of the Term Loans in an amount equal to 50% of such
Net Equity Proceeds, to be applied as set forth in Section 3.1.2.
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(d) (i) The Borrower shall, concurrently with the receipt by the
Borrower or any Subsidiary of Net Disposition Proceeds, make a mandatory
prepayment of the Term Loans equal to 100% of such Net Disposition
Proceeds, to be applied as set forth in Section 3.1.2; provided, however,
that any such prepayment shall not be required if the total amount of such
Net Disposition Proceeds, when added to all other Net Disposition Proceeds
received by the Borrower or any Subsidiary in the same calendar year as
such Net Disposition Proceeds and not yet applied in accordance with this
Section 3.1, is less than $1,500,000 and no Default shall have occurred
and be continuing.
(ii) The Borrower shall, following the receipt by the Borrower
or any Subsidiary (or the Administrative Agent pursuant to any loss
payee or similar provision) of any Net Casualty Proceeds deliver to
the Administrative Agent a calculation of the amount of such Net
Casualty Proceeds and make a mandatory prepayment of the Term Loans
equal to 100% of such Net Casualty Proceeds within 30 days of the
receipt thereof to be applied as set forth in Section 3.1.2;
provided, however, that no mandatory prepayment on account of Net
Casualty Proceeds shall be required under this clause if (A) the
aggregate amount of Net Casualty Proceeds with respect to a Casualty
Event will not exceed $1,000,000 and no Default has occurred and is
continuing or (B) the Borrower informs the Administrative Agent in
writing no later than 30 days following the occurrence of the
Casualty Event resulting in such Net Casualty Proceeds of its or
such Subsidiary's good faith intention to apply such Net Casualty
Proceeds to the rebuilding or replacement of the damaged, destroyed
or condemned assets or property and the Borrower or such Subsidiary
in fact uses such Net Casualty Proceeds to rebuild or replace such
assets or property within 360 days following the receipt of such Net
Casualty Proceeds, with the amount of such Net Casualty Proceeds
unused after such 360-day period being applied to the Term Loans
pursuant to Section 3.1.2; provided further, however, that, in the
event in the case of the preceding clause (B) the aggregate amount
of Net Casualty Proceeds with respect to a Casualty Event exceeds
$5,000,000, such Net Casualty Proceeds shall be deposited in an
account maintained with the Administrative Agent (or an agent on its
behalf) to pay for such rebuilding or replacement and shall be
disbursed at the request of the Borrower so long as a Default has
not occurred and is then continuing at the time of such
disbursement.
(ii) The Borrower shall, within 15 days following the last day
of any month in which the Borrower or any Subsidiary has received
Norilsk Palladium Proceeds, make a mandatory prepayment of the Term
Loans equal to 25% of such Norilsk Palladium Proceeds, to be applied
as set forth in Section 3.1.2; provided, however, that, any such
prepayment shall not be required if the total amount of the Norilsk
Palladium Proceeds, when added to all other Norilsk Palladium
Proceeds received by the Borrower or any Subsidiary and not yet
applied in accordance with this Section 3.1(d)(iii), is less than
$24,000,000 (which, for the avoidance of doubt, would require a
mandatory prepayment hereunder of $6,000,000) and no Default shall
have occurred and be continuing.
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(e) The Borrower shall, concurrently with the receipt by the
Borrower or any Subsidiary of any Net Issuance Proceeds arising from the
incurrence of Indebtedness not otherwise permitted under Section 7.2.2,
make a mandatory prepayment of the Term Loans equal to 100% of such Net
Issuance Proceeds, to be applied as set forth in Section 3.1.2; provided,
however, that compliance with this clause (e) shall not be construed as
preventing the occurrence of an Event of Default under Section 8.1.3.
(f) Within 90 days after the end of each Fiscal Year (beginning with
the close of the 2004 Fiscal Year), the Borrower shall make a mandatory
prepayment of the Term Loans in an amount equal to 50% of the Excess Cash
Flow for such Fiscal Year.
(g) On the Stated Maturity Date and on each Quarterly Payment Date
(commencing with September 30, 2004) occurring during the period set forth
below, the Borrower shall make a scheduled repayment of the aggregate
outstanding principal amount of the Term Loans made on the Closing Date in
an amount equal to the amount set forth below opposite the Stated Maturity
Date for Term Loans or such Quarterly Payment Date, as applicable:
Amount of Required
Period Principal Repayment
09/30/04 through (and including) 06/30/10 $ 350,000
the Stated Maturity Date for Term Loans $131,600,000
or the then outstanding
principal amount of all Term
Loans, if different.
(h) Immediately upon any acceleration of the Stated Maturity Date of
any Loans pursuant to Section 8.2 or Section 8.3, the Borrower shall repay
all the Loans, unless, pursuant to Section 8.3, only a portion of all the
Loans is so accelerated (in which case the portion so accelerated shall be
so repaid).
(i) In the event that Incremental Term Loans are outstanding, the
Borrower agrees to repay the Incremental Term Loans on the Incremental
Term Loan Maturity Date and on each Incremental Term Loan Repayment Date,
as set forth in the applicable Incremental Term Loan Supplement.
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans pursuant to clause (a) or (b) of
this Section 3.1.1 shall cause a reduction in the Revolving Loan Commitment
Amount.
SECTION 3.1.2. Application. Amounts to be prepaid pursuant to Section
3.1.1 shall be applied as set forth in this Section.
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(a) Subject to clause (b) below, each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such prepayment
or repayment, first, to the principal amount thereof being maintained as
Base Rate Loans, and second, subject to the terms of Section 4.4, to the
principal amount thereof being maintained as LIBO Rate Loans.
(b) In the case of any event described in clauses (c), (d), (e) or
(f) of Section 3.1.1 that would require the mandatory prepayment of Loans,
the amount of the proceeds arising from each such event shall be applied
(i) first, to a mandatory prepayment of the outstanding principal amount
of all Term Loans (with the amount of such prepayment of the Term Loans
being applied to the remaining scheduled amortization payments of the Term
Loans, in the case of clauses (c), (d)(i), (d)(ii), (e) or (f), in inverse
order, and, in the case of clause (d)(iii), ratably), pro rata among the
holders of Term Loans, and (ii) second, once all Term Loans have been
repaid in full, to a mandatory prepayment of the outstanding principal
amount of all Revolving Loans (and, in the event all Revolving Loans have
been repaid, to the payment and/or cash collateralization of all Letter of
Credit Outstandings) pro rata among the holders of Revolving Loans.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate
Loan, equal to the sum of the Alternate Base Rate from time to time in
effect plus the Applicable Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBOR Rate
(Reserve Adjusted) for such Interest Period plus the Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the first day
of the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such LIBO Rate
Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
any Loan or Reimbursement Obligation is due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise), or after any other monetary
Obligation of the Borrower shall have become due and payable, the Borrower shall
pay, but only to the extent permitted by law, interest (after as well as before
judgment) on such amounts and, for so long as such amounts remain unpaid and the
Required Lenders do not otherwise provide, all other amounts outstanding
hereunder at a rate per annum equal to the Alternate Base Rate from time to time
in effect plus the Applicable Margin for Base Rate Loans, plus an additional
margin of 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
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(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part,
of principal outstanding on such Loan on the principal amount so paid or
prepaid;
(c) with respect to Base Rate Loans, on each Monthly Payment Date
occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the date occurring on each three-month interval occurring
after the first day of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate
Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which
is accelerated pursuant to Section 8.2 or Section 8.3, immediately upon
such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when any of its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Effective Date and continuing through the Revolving Loan Commitment Termination
Date, a commitment fee in an amount equal to the Applicable Commitment Fee, in
each case on such Lender's Percentage of the sum of the average daily unused
portion of the Revolving Loan Commitment Amount (net of Letter of Credit
Outstandings). All commitment fees payable pursuant to this Section shall be
calculated on a year comprised of 360 days and payable by the Borrower in
arrears on each Quarterly Payment Date, commencing with the first Quarterly
Payment Date following the Effective Date, and on the Revolving Loan Commitment
Termination Date.
SECTION 3.3.2. Agent's Fee. The Borrower agrees to pay to the
Administrative Agent, for its own account, the fees in the amounts and on the
dates set forth in the Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the applicable Issuer and each
Revolving Loan Lender, a Letter of Credit fee in an amount equal to the then
effective Applicable Margin for Revolving Loans maintained as LIBO Rate Loans,
multiplied by the Stated Amount of each such Letter of Credit, such fees being
payable quarterly in arrears on each Quarterly Payment Date following the date
of issuance of each Letter of Credit and on the Revolving Loan Commitment
Termination Date. The Borrower further agrees to pay to the applicable Issuer
quarterly in arrears on each Quarterly
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Payment Date following the date of issuance of each Letter of Credit and on the
Revolving Loan Commitment Termination Date an issuance fee as agreed to by the
Borrower and such Issuer.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the
Administrative Agent, be conclusive and binding on the Borrower) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO
Rate Loan shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans payable to such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have
determined that
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to it in its relevant market; or
(b) by reason of circumstances affecting it's relevant market,
adequate means do not exist for ascertaining the interest rate applicable
hereunder to LIBO Rate Loans;
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees to
reimburse each Lender and Issuer for any increase in the cost to such Lender or
Issuer of, or any reduction in the amount of any sum receivable by such Secured
Party in respect of, such Secured Party's Commitments and the making of Credit
Extensions hereunder (including the making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Loans as, or of converting (or of
its obligation to convert) any Loans into, LIBO Rate Loans) that arise in
connection with any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in after the date hereof of, any law
or regulation, directive, guideline, decision or request (whether or not having
the force of law) of any Governmental Authority, except for such changes with
respect to increased capital costs and Taxes which are governed by Sections 4.5
and 4.6, respectively. Each affected Secured Party shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state the reasons therefor and the additional amount
required fully to compensate such Secured Party for such increased cost or
reduced amount. Such additional amounts shall be payable by the Borrower
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directly to such Secured Party within five days of its receipt of such notice,
and such notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.4. 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 deposits or other funds acquired by such Lender to make or
continue any portion of the principal amount of any Loan as, or to convert any
portion of the principal amount of any Loan into, a LIBO Rate Loan) as a result
of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loan or return of all or any portion of a
Credit-Linked Deposit Account to a Revolving Loan Lender on a date other
than the scheduled last day of the Interest Period applicable thereto,
whether pursuant to Section 2.6, Article III or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance with
the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO Rate
Loans in accordance with the Continuation/Conversion Notice therefor;
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
With such notice, the Lender shall provide the Borrower with a certificate
outlining in reasonable detail the computations of any amounts claimed and the
assumptions underlying such computations. Such written notice shall, in the
absence of manifest error, be conclusive and binding on the Borrower. The
Borrower shall have no obligation to make a payment under this Section to a
Secured Party unless such Lender shall have notified the Borrower of its demand
therefor within 60 days of the date on which such Lender has obtained final
internal financial statements with respect to the Fiscal Quarter of such Lender
in which such loss or expense occurred.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by
any Secured Party or any Person controlling such Secured Party, and such Secured
Party determines (in good faith but in its sole and absolute discretion) that
the rate of return on its or such controlling Person's capital as a consequence
of the Commitments or the Credit Extensions made, or the Letters of Credit
participated in, by such Secured Party is reduced to a level below that which
such Secured Party or such controlling Person could have achieved but for the
occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Secured Party to the Borrower, the Borrower shall within
five days following receipt of such notice pay directly to such Secured Party
additional amounts sufficient to compensate such Secured Party or such
controlling Person for such reduction in rate of return. With such notice, the
Secured Party shall provide the Borrower with a certificate outlining in
reasonable detail the computations of any amounts claimed and the assumptions
underlying such computations. A
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statement of such Secured Party as to any such additional amount or amounts
shall, in the absence of manifest error, be conclusive and binding on the
Borrower. In determining such amount, such Secured Party may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable. The Borrower shall have no obligation to make a payment under
this Section to a Secured Party unless such Secured Party shall have notified
the Borrower of its demand therefor within 60 days of the date on which such
Secured Party has obtained final internal financial statements with respect to
the Fiscal Quarter of such Secured Party as to which such additional amount or
amounts are being claimed.
SECTION 4.6. Taxes. The Borrower covenants and agrees as follows with
respect to Taxes.
(a) Any and all payments by the Borrower under this Agreement and
each other Loan Document shall be made without setoff, counterclaim or
other defense, and free and clear of, and without deduction or withholding
for or on account of, any Taxes. In the event that any Taxes are required
by law to be deducted or withheld from any payment required to be made by
the Borrower to or on behalf of any Secured Party under any Loan Document,
then:
(i) subject to clause (f), if such Taxes are Non-Excluded
Taxes, the amount of such payment shall be increased as may be
necessary such that such payment is made, after withholding or
deduction for or on account of such Taxes, in an amount that is not
less than the amount provided for herein or in such other Loan
Document; and
(ii) the Borrower shall withhold the full amount of such Taxes
from such payment (as increased pursuant to clause (a)(i)) and shall
pay such amount to the Governmental Authority imposing such Taxes in
accordance with applicable law.
(b) In addition, the Borrower shall pay any and all Other Taxes
imposed to the relevant Governmental Authority imposing such Other Taxes
in accordance with applicable law.
(c) As promptly as practicable after the payment of any Taxes or
Other Taxes, and in any event within 45 days of any such payment being
due, the Borrower shall furnish to the Administrative Agent a copy of an
official receipt (or a certified copy thereof) evidencing the payment of
such Taxes or Other Taxes. The Administrative Agent shall make copies
thereof available to any Lender upon request therefor.
(d) Subject to clause (f), the Borrower shall indemnify each Secured
Party for any Non-Excluded Taxes and Other Taxes levied, imposed or
assessed on (and whether or not paid directly by) such Secured Party
(whether or not such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority). Promptly upon
having knowledge that any such Non-Excluded Taxes or Other Taxes have been
levied, imposed or assessed, and promptly upon notice thereof by any
Secured Party, the Borrower shall pay such Non-Excluded Taxes or Other
Taxes directly to the relevant Governmental Authority (provided, however,
that no Secured Party shall be
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under any obligation to provide any such notice to the Borrower). In
addition, the Borrower shall indemnify each Secured Party for any
incremental Taxes that may become payable by such Secured Party as a
result of any failure of the Borrower to pay any Taxes when due to the
appropriate Governmental Authority or to deliver to the Administrative
Agent, pursuant to clause (c), documentation evidencing the payment of
Taxes or Other Taxes. With respect to indemnification for Non-Excluded
Taxes and Other Taxes actually paid by any Secured Party or the
indemnification provided in the immediately preceding sentence, such
indemnification shall be made within 30 days after the date such Secured
Party makes written demand therefor. The Borrower acknowledges that any
payment made to any Secured Party or to any Governmental Authority in
respect of the indemnification obligations of the Borrower provided in
this clause shall constitute a payment in respect of which the provisions
of clause (a) and this clause shall apply.
(e) Each Non-U.S. Lender, on or prior to the date on which such
Non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent,
but only for so long as such Non-U.S. Lender is legally entitled to do
so), shall deliver to the Borrower and the Administrative Agent either
(i) two duly completed copies of either (x) Internal Revenue
Service Form W-8BEN or (y) Internal Revenue Service Form W-8ECI, or
in any such case an applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not legally
entitled to deliver either form listed in clause (e)(i), (x) a
certificate of a duly authorized officer of such Non-U.S. Lender to
the effect that such Non-U.S. Lender is not (A) a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code (such certificate, an "Exemption
Certificate") and (y) two duly completed copies of Internal Revenue
Service Form W-8BEN or applicable successor form.
(f) The Borrower shall not be obligated to gross up any payments to
any Lender pursuant to clause (a)(i), or to indemnify any Lender pursuant
to clause (d), in respect of United States federal withholding taxes to
the extent imposed as a result of (i) the failure of such Lender to
deliver to the Borrower the form or forms and/or an Exemption Certificate,
as applicable to such Lender, pursuant to clause (e), (ii) such form or
forms and/or Exemption Certificate not establishing a complete exemption
from U.S. federal withholding tax or the information or certifications
made therein by the Lender being untrue or inaccurate on the date
delivered in any material respect, or (iii) the Lender designating a
successor lending office at which it maintains its Loans which has the
effect of causing such Lender to become obligated for tax payments in
excess of those in effect immediately prior to such designation; provided,
however, that the Borrower shall be obligated to gross up any payments to
any such Lender pursuant to clause (a)(i), and to indemnify any such
Lender pursuant to clause (d), in respect of United States federal
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withholding taxes if (i) any such failure to deliver a form or forms or an
Exemption Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted from a
change in any applicable statute, treaty, regulation or other applicable
law or any interpretation of any of the foregoing occurring after the date
hereof, which change rendered such Lender no longer legally entitled to
deliver such form or forms or Exemption Certificate or otherwise
ineligible for a complete exemption from U.S. federal withholding tax, or
rendered the information or certifications made in such form or forms or
Exemption Certificate untrue or inaccurate in a material respect, (ii) the
redesignation of the Lender's lending office was made at the request of
the Borrower or (iii) the obligation to gross up payments to any such
Lender pursuant to clause (a)(i) or to indemnify any such Lender pursuant
to clause (d) is with respect to an Assignee Lender that becomes an
Assignee Lender as a result of an assignment made at the request of the
Borrower.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided in a Loan Document, all payments by the Borrower pursuant to this
Agreement or any other Loan Document shall be made by the Borrower to the
Administrative Agent for the pro rata account of the Secured Parties entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 1:00 p.m., New York time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Secured Party its share, if any, of such payments
received by the Administrative Agent for the account of such Secured Party. All
interest (including interest on LIBO Rate Loans) 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 (or, in the case of interest on a Base
Rate Loan (calculated at other than the Federal Funds Rate), 365 days or, if
appropriate, 366 days). Whenever any payment to be made shall otherwise be due
on a day which is not a Business Day, such payment shall (except as otherwise
required by clause (c) of the definition of the term "Interest Period") be made
on the next succeeding Business Day and such extension of time shall be included
in computing interest and fees, if any, in connection with such payment.
SECTION 4.8. Sharing of Payments. If any Secured Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in
excess of its pro rata share of payments obtained by all Secured Parties, such
Secured Party shall purchase from the other Secured Parties such participations
in Credit Extensions made by them as shall be necessary to cause such purchasing
Secured Party to share the excess payment or other recovery ratably (to the
extent such other Secured Parties were entitled to receive a portion of such
payment or recovery) 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 Secured Party, the purchase shall be rescinded and each Secured
Party which has sold a participation to the purchasing Secured Party shall repay
to the purchasing Secured
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Party the purchase price to the ratable extent of such recovery together with an
amount equal to such selling Secured Party's ratable share (according to the
proportion of
(a) the amount of such selling Secured Party's required repayment to
the purchasing Secured Party
to
(b) total amount so recovered from the purchasing Secured Party)
of any interest or other amount paid or payable by the purchasing Secured Party
in respect of the total amount so recovered. The Borrower agrees that any
Secured Party so purchasing a participation from another Secured Party pursuant
to this Section may, to the fullest extent permitted by law, exercise all its
rights of payment (including pursuant to Section 4.9) with respect to such
participation as fully as if such Secured Party were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Secured Party receives a
secured claim in lieu of a setoff to which this Section applies, such Secured
Party shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Secured Parties
entitled under this Section to share in the benefits of any recovery on such
secured claim.
SECTION 4.9. Setoff. Each Secured Party shall, upon the occurrence and
during the continuance of any Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence
and during the continuance of any other Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to it (whether or
not then due), and (as security for such Obligations) the Borrower hereby grants
to each Secured Party a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Secured Party; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 4.8.
Each Secured Party agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Secured Party;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Secured Party under
this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Secured Party may
have.
SECTION 4.10. Change of Lending Office. Each Lender agrees that if it
makes any demand for payment under Sections 4.3, 4.5 or 4.6, or if any
introduction or change of the type described in Section 4.1 shall occur with
respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in good faith in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under Section 4.3, 4.5 or 4.6, or would eliminate or reduce the effect of any
introduction or change described in Section 4.1.
SECTION 4.11. Replacement of Lenders. If any Lender (an "Affected Lender")
makes a demand upon the Borrower for (or if the Borrower is otherwise required
to pay) amounts
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pursuant to Section 4.3, 4.5 or 4.6 (and the payment of such amounts are more
onerous in the reasonable judgment of the Borrower than with respect to the
other Lenders), or gives notice pursuant to Section 4.1 requiring a conversion
of such Affected Lender's LIBO Rate Loans to Base Rate Loans or suspending such
Lender's obligation to make Loans as, or to convert Loans into, LIBO Rate Loans,
the Borrower may, within 30 days of receipt by the Borrower of such demand or
notice, as the case may be, give notice (a "Substitution Notice") in writing to
such Affected Lender, the Administrative Agent and, in the case such Affected
Lender has a Revolving Loan Commitment, the Issuer of its intention to replace
such Affected Lender with an Eligible Assignee (a "Substitute Lender")
designated in such Substitution Notice; provided, however, that no Substitution
Notice may be given by the Borrower and no such replacement may occur if (i)
such replacement conflicts or would conflict with any applicable law or
regulation, (ii) unless the Administrative Agent otherwise consents, any Event
of Default shall have occurred and be continuing at the time of the giving of
such notice or the time of such replacement or (iii) prior to the giving of such
notice or the time of any such replacement, such Lender shall have taken any
necessary action under Section 4.3, 4.5 or 4.6 (if applicable) so as to
eliminate the continued need for payment of amounts owing pursuant to Section
4.3, 4.5 or 4.6. If the Administrative Agent shall, in the exercise of its
reasonable discretion and within five Business Days of its receipt of such
Substitution Notice, notify the Borrower and such Affected Lender in writing
that the Substitute Lender is satisfactory to the Administrative Agent and, in
the case such Affected Lender has a Revolving Loan Commitment, the Issuer (each
such consent not being required where the Substitute Lender is already a
Lender), then such Affected Lender shall, subject to the payment of any amounts
due to the Affected Lender pursuant to Section 4.4, assign, in accordance with
Section 10.11.1, all of its Commitments, Credit-Linked Deposits, Loans, Notes
(if any) and other rights and obligations under this Agreement and all other
Loan Documents (including Reimbursement Obligations, if applicable) to such
Substitute Lender; provided, however, that (i) such assignment shall be without
recourse, representation or warranty (other than that such affected Lender owns
the Commitments, Loans and Notes being assigned, free and clear of any Liens)
and shall be on terms and conditions substantially similar to the terms set
forth in the form of Lender Assignment Agreement attached hereto, (ii) the
purchase price paid by such Substitute Lender shall be in the amount of such
Affected Lender's Loans and its Percentage of outstanding Reimbursement
Obligations, together with all accrued and unpaid interest and fees in respect
thereof, plus all other amounts (other than the amounts demanded and
unreimbursed under Sections 4.3, 4.5 and 4.6, which amounts shall be paid by the
Borrower as a condition to such assignment), owing to such Affected Lender
hereunder and (iii) the Borrower shall pay to the Affected Lender and the
Administrative Agent to the extent so requested all reasonable out-of-pocket
expenses incurred by the Affected Lender and the Administrative Agent in
connection with such assignment and assumption (including the processing fees
described in Section 10.11.1). Upon the effective date of an assignment
described above, the Substitute Lender shall become a "Lender" for all purposes
under this Agreement and the other Loan Documents.
SECTION 4.12. Existing Letters of Credit. Each Existing Letter of Credit
shall be deemed to be a Letter of Credit issued hereunder.
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ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders and,
if applicable, the Issuer to fund the initial Credit Extension shall be subject
to the prior or concurrent satisfaction of each of the conditions precedent set
forth in this Section 5.1 (the date on which such conditions precedent are
satisfied or waived by the Lenders being herein referred to as the "Closing
Date").
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each Obligor, as applicable, (i) a copy of a good standing
certificate, as well as certificate(s) of qualification to do business in each
foreign jurisdiction in which such Obligor conducts material operations, dated a
date reasonably close to the Closing Date, for each such Person and (ii) a
certificate, dated the Closing Date with counterparts for each Lender, duly
executed and delivered by such Person's Secretary or Assistant Secretary,
managing member or general partner, as applicable, as to
(a) resolutions of each such Person's Board of Directors (or other
managing body, in the case of any Person that is not a corporation) then
in full force and effect authorizing, to the extent relevant, all aspects
of the Transaction applicable to such Person and the execution, delivery
and performance of this Agreement, each other Loan Document to be executed
by such Person and the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its officers, managing
member or general partner, as applicable, authorized to act with respect
to this Agreement and each other Loan Document to be executed by such
Person; and
(c) the full force and validity of each Organic Document of such
Person and copies thereof;
upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
SECTION 5.1.2. Closing Date Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, the Closing Date Certificate,
dated as of the Closing Date and duly executed and delivered by an Authorized
Officer of the Borrower, in which certificate the Borrower shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of the Borrower as of such date, and, at
the time each such certificate is delivered, such statements shall in fact be
true and correct in each case, in all material respects. All documents and
agreements required to be appended to the Closing Date Certificate shall be in
form and substance reasonably satisfactory to the Administrative Agent.
SECTION 5.1.3. Delivery of Notes. The Administrative Agent shall have
received for the account of each Lender that has requested a Note, such Lender's
Notes duly executed and delivered by an Authorized Officer of the Borrower.
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SECTION 5.1.4. Payment of Outstanding Indebtedness, etc. All Indebtedness
with respect to the Existing Credit Facility, together with all interest, all
prepayment premiums and other amounts due and payable with respect thereto,
shall have been paid in full and the commitments in respect of such Indebtedness
shall have been terminated, and all Liens securing payment of any such
Indebtedness shall have been released and the Administrative Agent shall have
received all Uniform Commercial Code Form UCC-3 termination statements or other
instruments as may be suitable or appropriate in connection therewith.
SECTION 5.1.5. Closing Fees, Expenses, etc. The Administrative Agent shall
have received for its own account, or for the account of each Lender, as the
case may be, all fees, costs and expenses due and payable pursuant to Sections
3.3 and 10.3, if then invoiced by the Administrative Agent.
SECTION 5.1.6. Financial Information, etc. The Administrative Agent shall
have received, with copies for each Lender,
(a) (i) the audited consolidated balance sheet and related audited
consolidated statements of income and cash flow of the Borrower and its
Subsidiaries for the 2003 Fiscal Year and (ii) the unaudited interim
consolidated balance sheet and related unaudited consolidated statements
of income and cash flow for the first Fiscal Quarter of the 2004 Fiscal
Year;
(b) a pro forma consolidated balance sheet of the Borrower and its
Subsidiaries, as of the Closing Date (the "Pro Forma Balance Sheet"),
certified by the chief financial or accounting Authorized Officer of the
Borrower, giving effect to all aspects of the Transaction that have been
consummated on or prior to such date, which balance sheet shall be
reasonably satisfactory to the Administrative Agent and the Lenders; and
(c) projected seven-year financial information regarding the
Borrower and its Subsidiaries, in form and substance satisfactory to the
Administrative Agent.
SECTION 5.1.7. Compliance Certificate. The Administrative Agent shall have
received, with counterparts for each Lender, an initial Compliance Certificate
on a pro forma basis (as if (i) Credit Extensions to be made on the Closing Date
had been made as of June 30, 2004 and (ii) the aspects of the Transaction that
have been consummated on or prior to the Closing Date had been consummated as of
June 30, 2004, and as to such items therein as the Administrative Agent and the
Lenders reasonably request, dated as of the Closing Date, duly executed (and
with all schedules thereto duly completed) and delivered by the chief executive,
financial or accounting Authorized Officer of the Borrower.
SECTION 5.1.8. Due Diligence by Mining Consultant. The Administrative
Agent shall have received and be satisfied with (i) the report of the Mining
Consultant with respect to the Facilities, including with respect to the
Borrower's actual and projected capital expenditures, operating costs, mine
development schedules, proven reserves and production volume for both the Nye
Mine and the East Boulder Mine and (ii) the report of Behre Dolbear & Company,
Inc. (the "Behre Dolbear Report"), dated June 2004 with respect to the proven
and probable reserves of the Nye Mine and the East Boulder Mine as of December
31, 2003.
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SECTION 5.1.9. Mine Plans. The Administrative Agent, the Mining Consultant
and the Lenders shall be reasonably satisfied with the Borrower's Mine Plans for
the Nye Mine and the East Boulder Mine.
SECTION 5.1.10. Solvency, etc. The Administrative Agent shall have
received, with counterparts for each Lender, a certificate duly executed and
delivered by the chief financial or principal accounting Authorized Officer of
the Borrower, dated as of the Closing Date, in the form of Exhibit M attached
hereto.
SECTION 5.1.11. Security Agreements. The Administrative Agent shall have
received, with counterparts for each Lender, executed counterparts of the
Borrower Security Agreement dated as of the date hereof, duly executed and
delivered by an Authorized Officer of the Borrower and, in the event the
Borrower has any Subsidiaries, executed counterparts of each Subsidiary Security
Agreement dated as of the date hereof, duly executed and delivered by an
Authorized Officer of each such Subsidiary, together with
(a) Uniform Commercial Code financing statements (Form UCC-1),
naming the Borrower and each such Subsidiary (if any) as a debtor and the
Administrative Agent, on behalf of the Secured Parties, as the secured
party, or other similar instruments or documents, to be filed under the
Uniform Commercial Code of all jurisdictions as may be necessary or, in
the opinion of the Administrative Agent, desirable to perfect the security
interests of the Administrative Agent pursuant to such Security Agreement;
(b) the applicable Perfection Certificate (as defined in such
Security Agreement);
(c) proper Uniform Commercial Code Form UCC-3 termination
statements, if any, necessary to release all Liens (except for Permitted
Liens) of any Person
(i) in any collateral described in any Security Agreement
previously granted to any Person, and
(ii) securing any of the Indebtedness in respect to the
Existing Credit Facility,
together with such other Uniform Commercial Code Form UCC-3 termination
statements as the Administrative Agent may reasonably request from such
Obligors;
(d) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified
by a party acceptable to the Administrative Agent, dated a date reasonably
near to the Closing Date, listing all effective financing statements which
name the Borrower and each Subsidiary (under its present name and any
previous names) as the debtor and which are filed in the jurisdictions in
which filings were made pursuant to clause (a) above, together with copies
of such financing statements (none of which shall cover any collateral
described in any Security Agreement except for Permitted Liens);
(e) (i) all applicable Counterparty Notices required to be delivered
pursuant to Sections 3.6 and 4.10(i) of a Security Agreement and Sections
2.10 and 3.3(c) of a
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Mortgage (to the extent such notices may be obtained by the Borrower with
the exercise of its commercially reasonable efforts) and (ii) all landlord
lien notices with respect to each lessor of premises leased to the
Borrower or any Subsidiary after the date of this Agreement with respect
to the assets of the Borrower or any Subsidiary located on such premises;
(f) in the event the Borrower has any Subsidiaries, certificates
evidencing all of the issued and outstanding shares of Capital Stock owned
by the Borrower in each such Subsidiary or owned by any other Subsidiary,
which certificates shall be accompanied by undated stock powers duly
executed in blank; and
(g) all Pledged Notes (as defined in the Borrower Security Agreement
and the Subsidiary Security Agreement, as applicable), if any, evidencing
Indebtedness payable to the Borrower or to any Subsidiary duly endorsed to
the order of the Administrative Agent, together with Uniform Commercial
Code Financing Statements (or similar instruments) in respect of such
Pledged Notes executed by the Borrower or a Guarantor to be filed in such
jurisdictions as the Administrative Agent may reasonably request.
The Administrative Agent and its counsel shall be satisfied that (i) the Lien
granted to the Administrative Agent, for the benefit of the Secured Parties in
the collateral described above is a first priority (or local equivalent thereof)
security interest; and (ii) no Lien exists on any of the collateral described
above other than Permitted Liens and the Lien created in favor of the
Administrative Agent, for the benefit of the Secured Parties, pursuant to a Loan
Document.
SECTION 5.1.12. Patent Security Agreement, Copyright Security Agreement
and Trademark Security Agreement. The Administrative Agent shall have received
the Patent Security Agreement, the Copyright Security Agreement and the
Trademark Security Agreement, as applicable, each dated as of the date of the
initial Credit Extension, duly executed and delivered by each Obligor that has
delivered a Security Agreement.
SECTION 5.1.13. Mortgage. The Administrative Agent shall have received
counterparts of each Mortgage, dated as of the date hereof, duly executed by the
Borrower, together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of each Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to create a valid, perfected first priority Lien against the
properties purported to be covered thereby;
(b) (i) mortgagee's title insurance policies with respect to
property purported to be covered by each Mortgage (except patented and
unpatented mining and millsite claims) in favor of the Administrative
Agent for the benefit of the Secured Parties in amounts and in form and
substance and issued by insurers reasonably satisfactory to the
Administrative Agent, addressed to the Administrative Agent and the
Lenders, insuring that title to such property is marketable and that the
interests created by each Mortgage constitute valid, perfected first
priority Liens thereon free and clear of all defects and encumbrances
other than as approved by the Administrative Agent, and such policies
shall also include a survey reading, and, if required by the
Administrative Agent and if
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available, revolving credit endorsement, comprehensive endorsement,
variable rate endorsement, access and utilities endorsements, mechanic's
lien endorsement and such other endorsements as the Administrative Agent
shall reasonably request and shall be accompanied by evidence of the
payment in full of all premiums thereon, and (ii) the Title Opinions to be
provided pursuant to Section 5.1.17(b) with respect to patented mining
claims and Key Unpatented Claims purported to be covered by each Mortgage
in favor of the Administrative Agent for the benefit of the Secured
Parties addressed to the Administrative Agent and the Lenders and in form
and substance reasonably satisfactory to the Administrative Agent;
(c) Uniform Commercial Code Financing Statements related to the
security interests created by each Mortgage, together with evidence of the
completion (or satisfactory arrangements for the completion) of all
recordings and filings of such financing statements in the appropriate
offices and records as may be necessary or, in the reasonable opinion of
the Administrative Agent, desirable to create valid, perfected first
priority Liens against the improvements purported to be covered thereby;
and
(d) such other approvals, opinions or documents as the
Administrative Agent may reasonably request, including a current survey
(or, in the case of property in respect of a Mine, the most recently
completed mineral survey) of each property purported to be covered by a
Mortgage in form and substance satisfactory to the Administrative Agent
and the title insurer.
SECTION 5.1.14. Subsidiary Guaranty. In the event the Borrower has any
Subsidiaries, the Administrative Agent shall have received, with counterparts
for each Lender, a Subsidiary Guaranty for the benefit of the Secured Parties,
dated as of the date hereof, duly executed and delivered by each such
Subsidiary.
SECTION 5.1.15. Insurance. The Administrative Agent shall have received,
with copies for each Lender, (a) certified copies of the insurance policies from
one or more insurance companies, or binders in respect thereof certified by the
Borrower's insurance broker, Hilb, Rogal and Hobbs, satisfactory to the
Administrative Agent, evidencing coverage required to be maintained as of the
Closing Date pursuant to Section 7.1.4 and each Loan Document, (b) a certificate
from such insurance broker, certifying that all insurance required pursuant to
this Agreement to be maintained by the Borrower or the contracting parties
described in clauses (b) and (c) of Section 7.1.4 is in full force and effect
with no default by the Borrower, is (to the knowledge of such broker) fully paid
and is not subject to cancellation without prior written notice to the
Administrative Agent, and (c) a report from such insurance broker that concludes
that the Borrower maintains insurance with financially sound and reputable
insurance companies with respect to property and risks of a character usually
maintained by Persons of comparable size engaged in the same or similar business
and similarly situated and against loss, damage and liability of the kinds and
in the amounts customarily maintained by such Persons.
SECTION 5.1.16. Consents. To the extent requested by the Administrative
Agent, the Administrative Agent shall have received copies of governmental and
third party authorizations, approvals, permits or consents described in Section
6.3.
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SECTION 5.1.17. Opinions of Counsel. The Administrative Agent shall have
received opinions, dated the Closing Date and addressed to the Administrative
Agent and all Lenders, from
(a) Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the
Obligors, substantially in the form of Exhibit N-1 hereto;
(b) Davis, Graham & Stubbs LLP, special counsel to the Borrower, as
to the title of the Borrower to the patented mining claims and Key
Unpatented Claims described in Section 5.1.13(b)(ii), substantially in the
form of Exhibit N-2 hereto (the "Title Opinions"); and
(c) Holland & Hart, Montana counsel to the Obligors, substantially
in the form of Exhibit N-3 hereto.
SECTION 5.1.18. Consents and Acknowledgements. The Administrative Agent
has received from the Borrower (a) the letter from the Borrower to Newmont
Capital Limited, successor-in-interest to Franco-Nevada Mining Corporation
("Newmont") executed by Newmont whereby Newmont consents to, among other things,
the execution and delivery of the Mortgage and the assignment of the Claims (as
defined in such letter) by the Borrower to the Administrative Agent pursuant to
the Mortgage as security for the Obligations and (b) the letter from the
Borrower to William G. Mouat, Shirley M. Mouat, Fort Stockton Investments, Inc.
and Mouat Nickel Mines, Inc. (collectively, the "Mouats") executed by the Mouats
pursuant to which the Mouats consent to, among other things, the execution and
delivery of the Mortgage and the assignment the Claims (as defined in such
letter) by the Borrower to the Administrative Agent pursuant to the Mortgage as
security for the Obligations. The Administrative Agent shall have received
evidence satisfactory to it that the Borrower has delivered to each refiner,
warehouseman and Specified Assigned Agreement Counterparty (as such term is
defined in the Mortgage) a Counterparty Notice and that Borrower has used all
commercially reasonable efforts to receive an executed acknowledgement of such
Counterparty Notice from each such Person.
SECTION 5.1.19. Supply Contract Counterparty Notices. The Administrative
Agent shall have received evidence satisfactory to it that the Borrower has
delivered to each Material Supply Contract Counterparty and Additional Supply
Contract Counterparty a Supply Contract Counterparty Notice and that the
Borrower has used its reasonable best efforts to receive an executed
acknowledgement of such Supply Contract Counterparty Notice from such Material
Supply Contract Counterparty and Additional Supply Contract Counterparty.
SECTION 5.1.20. Credit-Linked Revolving Loan Lenders. Except to the extent
waived by the Issuer, each Credit-Linked Revolving Loan Lender (if any) shall
have deposited cash into the Credit-Linked Deposit Account in an amount equal to
such Credit-Linked Revolving Loan Lender's RL Percentage of the aggregate Stated
Amount of the Existing Letters of Credit.
SECTION 5.1.21. Rating of Loans. The Loans shall have been assigned a
preliminary rating of at least BB by S&P and Ba3 by Moody's.
SECTION 5.1.22. Norilsk Palladium Depository Arrangement. The
Administrative Agent shall have received documentation, in form and substance
reasonably satisfactory to the
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Administrative Agent, that the Norilsk Palladium is being held by JPMorgan Chase
Bank pursuant to an arrangement that would satisfy the Borrower's obligations
under Section 7.1.17.
SECTION 5.1.23. Information pursuant to Terrorism Laws. The Borrower shall
have supplied the Lenders and the Administrative Agent with all information
required by Section 326 of the Patriot Act (as set forth in Section 10.16
hereof) or necessary for the Administrative Agent or any Lender to verify the
identity of such Borrower as required by Section 326 of the Patriot Act.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and each
Issuer to make any Credit Extension (including the initial Credit Extension)
shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension (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 thereof) the following statements shall be true and
correct:
(a) the representations and warranties set forth in Article VI and
in each other Loan Document shall, in each case, 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 in all material respects as of
such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. Subject to Section 2.3.1,
the Administrative Agent shall have received a Borrowing Request if Loans are
being requested, or an Issuance Request if a Letter of Credit is being
requested, extended or increased. Each of the delivery of a Borrowing Request or
Issuance Request and the acceptance by the Borrower of the proceeds of such
Credit Extension (including any Letter of Credit or modification thereto) shall
constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such
Credit Extension and the application of the proceeds or benefits thereof) the
statements made in Section 5.2.1 are true and correct in all material respects.
SECTION 5.2.3. Letters of Credit. Except to the extent waived by the
Issuer, prior to the issuance of any Letter of Credit or the increase of the
Stated Amount of any existing Letter of Credit, each Credit-Linked Revolving
Loan Lender (if any) shall have deposited cash into the Credit-Linked Deposit
Account in an amount equal to such Credit-Linked Revolving Loan Lender's RL
Percentage of the Stated Amount of such Letter of Credit or the increase of the
Stated Amount of such existing Letter of Credit, as the case may be.
SECTION 5.2.4. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel; the Administrative Agent
and its counsel shall have received all information, approvals,
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opinions, documents or instruments as the Administrative Agent or its counsel
may reasonably request. Delivery of a photocopy of an executed counterpart of a
signature page to any Loan Document (other than a Note) shall be effective as
delivery of an original executed counterpart.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Secured Parties to enter into this Agreement and to
make Credit Extensions hereunder, the Borrower represents and warrants to each
Secured Party as set forth in this Article.
SECTION 6.1. Organization, etc. The Borrower and each of its Subsidiaries
is validly organized and existing and in good standing under the laws of the
state or jurisdiction of its incorporation or organization, is duly qualified to
do business and is in good standing as a foreign entity in each jurisdiction
where the nature of its business requires such qualification, and has full power
and authority and holds all requisite governmental licenses, permits and other
approvals to enter into and perform its Obligations under this Agreement and
each other Loan Document to which it is a party and to own and hold under lease
its property and to conduct its business substantially as currently conducted by
it.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement and each other Loan
Document executed or to be executed by it, the execution, delivery and
performance by each other Obligor of each Loan Document executed or to be
executed by it, the Borrower's and each such other Obligor's participation in
the consummation of all aspects of the Transaction, and the execution, delivery
and performance by the Borrower or (if applicable) any Obligor of the agreements
executed and delivered in connection with the Transaction are in each case
within each such Person's powers, have been duly authorized by all necessary
action, and do not
(a) contravene any such Person's Organic Documents;
(b) contravene any contractual restriction binding on or affecting
any such Person;
(c) contravene (i) any court decree or order binding on or affecting
any such Person or (ii) any law or governmental regulation binding on or
affecting any such Person; or
(d) result in, or require the creation or imposition of, any Lien on
any of such Person's properties (except as permitted by this Agreement).
SECTION 6.3. Government Approval, Regulation, Compliance with Laws, etc.
(a) The Borrower has received, has timely applied for renewals of, or has the
benefit of all governmental and third party authorizations, approvals, licenses,
permits or consents (including those related to environmental matters) which are
necessary or advisable: (i) for the execution, delivery and performance by the
Borrower of the Loan Documents; (ii) to operate the Nye Mine and the East
Boulder Mine at a production capacity of 2800 and 1650 tons of ore,
respectively, per day, or
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such higher production capacity as may be reflected from time to time in the
applicable Mine Plans (and to conduct such construction as may be necessary to
achieve such production levels); and (iii) in order to continue operations of
the Borrower and its Subsidiaries. All such authorizations, approvals, licenses,
permits and consents have been duly issued to and held by the Borrower and are
in valid and good standing and in full force and effect, free of any material
violation thereof, and all applicable waiting periods have expired without any
action being taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the Transaction or
the financing thereof.
(b) Other than the authorizations, approvals and consents described in
Section 6.3(a) above, no other authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body or
other Person is required for the consummation of the Transaction or the due
execution, delivery or performance by the Borrower or any other Obligor of any
Loan Document to which it is a party, or for the due execution, delivery and/or
performance of Transaction Documents, in each case by the parties thereto or the
consummation of the Transaction. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended
(c) The Borrower and each of its Subsidiaries are in compliance with (in
all material respects) all laws, rules, regulations and orders applicable to the
conduct of its businesses or the ownership of its properties.
SECTION 6.4. Validity, etc. Each Loan Document required to be executed by
the Borrower has been duly executed and delivered by the Borrower and
constitutes the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with its terms; and each Loan
Document required to be executed by each other Obligor (if any) has been duly
executed and delivered by such Obligor and constitutes the legal, valid and
binding obligation of such Obligor enforceable against such Obligor in
accordance with its terms (except, in any case, as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and by principles of equity).
SECTION 6.5. Financial Information. The financial statements of the
Borrower and its Subsidiaries furnished to the Administrative Agent and each
Lender pursuant to Section 5.1.6 have been prepared in accordance with GAAP
consistently applied, and present fairly the consolidated financial condition of
the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. All balance sheets, all statements of
operations, shareholders' equity and cash flow and all other financial
information of each of the Borrower and its Subsidiaries furnished pursuant to
Section 7.1.1 have been and will for periods following the Effective Date be
prepared in accordance with GAAP consistently applied, and do or will present
fairly the consolidated financial condition of the Persons covered thereby as at
the dates thereof and the results of their operations for the periods then
ended.
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SECTION 6.6. No Material Adverse Change. There has been no material
adverse change in the business, assets, financial condition, operations or
prospects of the Borrower or any of its Subsidiaries since December 31, 2003.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending or,
to the knowledge of the Borrower or its Subsidiaries, threatened litigation,
action, proceeding or labor controversy
(a) except as disclosed in Item 6.7 of the Disclosure Schedule,
affecting the Borrower any of its Subsidiaries or any other Obligor, or
any of their respective properties, businesses, assets or revenues, which
could reasonably be expected to have a Material Adverse Effect, and no
development has occurred in any labor controversy, litigation, arbitration
or governmental investigation or proceeding disclosed in Item 6.7 which
could reasonably be expected to have a Material Adverse Effect; or
(b) which purports to affect the legality, validity or
enforceability of this Agreement, any other Loan Document, the Transaction
Documents or the Transaction.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries, except those
Subsidiaries which are permitted to have been organized or acquired in
accordance with Section 7.2.5 or 7.2.10.
SECTION 6.9. Ownership of Properties. (a) The Borrower and each of its
Subsidiaries owns (i) in the case of owned real property (other than unpatented
mining and millsite claims), good and marketable fee title to, and (ii) in the
case of owned personal property, good and valid title to, or in the case of
leased real or personal property, valid and enforceable leasehold interests (as
the case may be) in, all of its properties and assets, real and personal,
tangible and intangible, of any nature whatsoever, free and clear in each case
of all Liens or claims, except for Permitted Liens.
(b) (i) Subject to the paramount title of the United States, the matters
described in Item 6.9(b) of the Disclosure Schedule, the existence of overlaps
between unpatented and patented mining and millsite claims and the rights of the
United States and third parties to use the surface of unpatented mining and
millsite claims under applicable laws, so long as such overlaps and rights do
not interfere with the Borrower's use or development of such unpatented mining
and millsite claims, (A) all unpatented mining and millsite claims material to
the development and completion of any Mine or otherwise material to the Borrower
(including the unpatented mining and millsite claims described in the legal
opinion referred to in clause (b) of Section 5.1.17) (the "Key Unpatented
Claims") have been properly located and monumented; (B) location notices and
certificates have been properly posted and properly filed and recorded for each
of the Key Unpatented Claims, including in the official records of the county in
which such Key Unpatented Claim is situated and the authorized office of the
Bureau of Land Management in accordance with applicable law (and all fees and
charges payable in respect thereof have been properly and timely paid); (C) all
filings and recordings required to maintain the Key Unpatented Claims in good
standing through the date that this representation and warranty is being made,
including evidence of proper performance of annual assessment work or payment of
required claim maintenance fees, have been timely and properly made in all
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appropriate governmental offices; (D) assessment work, performed reasonably and
in good faith in accordance with accepted industry practice, has been performed
through the assessment year ending on September 1, 1992; and (E) all required
annual claim maintenance fees and other payments necessary to maintain the Key
Unpatented Claims through the assessment year ending on the immediately
succeeding September 1 in accordance with applicable law have been timely and
properly made (and all affidavits and other filings required by applicable state
law for each such assessment year have been properly and timely made).
(i) Subject to the paramount title of the United States, the
matters described in Item 6.9(b) of the Disclosure Schedule, the
existence of overlaps between unpatented and patented mining and
millsite claims and the rights of the United States and third
parties to use the surface of unpatented mining and millsite claims
under applicable laws, so long as such overlaps and rights do not
interfere with the Borrower's use or development of such unpatented
mining and millsite claims, to the Borrower's knowledge (A) all
unpatented mining and millsite claims other than the Key Unpatented
Claims (the "Additional Claims") have been properly located and
monumented; (B) location notices and certificates have been properly
posted and properly filed and recorded for each of the Additional
Claims, including in the official records of the county in which
such Additional Claim is situated and the authorized office of the
Bureau of Land Management in accordance with applicable law (and all
fees and charges payable in respect thereof have been properly and
timely paid); (C) all filings and recordings required to maintain
the Additional Claims in good standing through the date that this
representation and warranty is being made, including evidence of
proper performance of annual assessment work or payment of required
claim maintenance fees, have been timely and properly made in all
appropriate governmental offices; (D) assessment work, performed
reasonably and in good faith in accordance with accepted industry
practice, has been performed through the assessment year ending on
September 1, 1992; and (E) all required annual claim maintenance
fees and other payments necessary to maintain the Additional Claims
through the assessment year ending on the immediately succeeding
September 1 in accordance with applicable law have been timely and
properly made (and all affidavits and other filings required by
applicable state law for each such assessment year have been
properly and timely made).
(ii) The foregoing representations in this subsection (b) do
not include any representations concerning the existence of a
discovery of valuable minerals within the boundaries of any
individual Key Unpatented Claim or Additional Claim, provided that
it is acknowledged and agreed by the Borrower that this subsection
(b)(iii) does not qualify or limit in any way the representations
and warranties set forth in Section 6.13.
(c) The Excluded Real Property does not include any Key Unpatented
Claims, any interest in either Mine or any right described in Section 6.17
or any other interest material to, or necessary for operation of, the
Facilities consistent with the Mine Plans.
(d) The real property listed in Item 6.9(d) of the Disclosure
Schedule constitutes, as of the Closing Date, all of the real property
owned or leased by the Borrower and each of its Subsidiaries as of the
Closing Date. The Borrower enjoys peaceful and undisturbed possession
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under all such leases. All of such leases are valid and subsisting and no
material default by the Borrower exists under any of such leases.
SECTION 6.10. Taxes. The Borrower and each of its Subsidiaries has filed
all tax returns and reports required by law to have been filed by it and has
paid all taxes and governmental charges thereby shown to be due and owing,
except any such taxes or charges 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 its books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Credit Extension hereunder, no
steps have been taken to terminate any Pension Plan, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which might result in the incurrence
by the Borrower or any member of the Controlled Group of any material liability,
fine or penalty. Except as disclosed in Item 6.11 of the Disclosure Schedule,
neither the Borrower nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title I of
ERISA.
SECTION 6.12. Environmental Warranties. Except as set forth in Item 6.12
of the Disclosure Schedule (none of which items disclosed therein, singly or in
the aggregate, have, or may reasonably be expected to have, a Material Adverse
Effect):
(a) all facilities and property owned or leased by the Borrower or
any of its Subsidiaries have been, and continue to be, owned or leased by
the Borrower and its Subsidiaries in material compliance with all
Environmental Laws;
(b) there are no pending or threatened claims, complaints, notices,
inquiries or requests for information received by the Borrower or any of
its Subsidiaries with respect to any alleged violation of, or potential
liability under, any Environmental Law which could reasonably be expected
to result in liability for the Borrower and its Subsidiaries in an
aggregate amount exceeding $5,000,000;
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or previously owned or leased by the Borrower or
any of its Subsidiaries (including Releases of Hazardous Materials into
underlying groundwater) that have, or could reasonably be expected to
have, a Material Adverse Effect;
(d) no property now or previously owned or leased by the Borrower or
any of its Subsidiaries is listed or, to the Borrower's knowledge,
proposed for listing (with respect to owned property only) on the National
Priorities List pursuant to CERCLA, on any similar state lists of sites
requiring investigation or clean-up of Hazardous Materials (such as the
Superfund Site Tracking System pursuant to the Montana Comprehensive
Environmental Cleanup and Responsibility Act) or on any state or federal
lists of sites with leaking underground storage tanks ("LUSTs");
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(e) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by the Borrower or any of its Subsidiaries
that, singly or in the aggregate, have, or could reasonably be expected to
have, a Material Adverse Effect;
(f) neither the Borrower nor any Subsidiary has directly transported
or directly arranged for the transportation of any Hazardous Material to
any location which is listed or, to the Borrower's knowledge, proposed for
listing on the National Priorities List pursuant to CERCLA or on any
similar state lists of sites requiring investigation or clean-up of
Hazardous Materials (such as the Superfund Site Tracking System pursuant
to the Montana Comprehensive Environmental Cleanup and Responsibility Act)
which could reasonably result in a liability for the Borrower or any
Subsidiary in an aggregate amount exceeding $5,000,000;
(g) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the Borrower
or any Subsidiary that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect; and
(h) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower which, with the passage of
time, or the giving of notice or both, would give rise to liability under
any Environmental Law (excluding any liability covered by a reclamation
bond or letter of credit issued in lieu of a reclamation bond) exceeding
$5,000,000.
SECTION 6.13. Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to or for the benefit of
any Secured Party (including information furnished to the Mining Consultant) by
or on behalf of the Borrower or any other Obligor for purposes of or in
connection with this Agreement or any transaction contemplated hereby (including
the Transaction), contains any untrue statement of a material fact, and no other
factual information hereafter furnished in writing in connection with this
Agreement or any other Loan Document by the Borrower or any other Obligor to or
for the benefit of any Secured Party (including information furnished to the
Mining Consultant) will contain any untrue statement of a material fact on the
date as of which such information is dated or certified or, if the information
so certified speaks as of another date, as of such date, and, as of the date of
the execution and delivery of this Agreement by the Secured Parties, the factual
information delivered prior to the date of execution and delivery of this
Agreement does not, and the factual information hereafter furnished shall not on
the date as of which such information is dated or certified or, if the
information so certified speaks as of another date, as of such date, omit to
state any material fact necessary to make any such information not misleading,
in each case, in light of the circumstances in which such information was
provided; provided that all of such information is to be viewed in conjunction
with the reports, statements, schedules and registration statements included in
filings made by the Borrower with the SEC prior to the delivery of such
information, including disclosures made pursuant to the Private Securities
Litigation Reform Act of 1995 to the extent provided to the Secured Parties. In
furtherance, and not in limitation, of the preceding sentence, all projections
and estimates contained in any Mine Plan have been prepared in good faith and
based on reasonable assumptions, and all projections and estimates hereafter
furnished
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pursuant to the terms of this Agreement shall be prepared in good faith and
based, as of the date so prepared, on reasonable assumptions; provided that all
of such information, projections and estimates are to be viewed in conjunction
with the reports, statements, schedules and registration statements included in
filings made by the Borrower with the SEC prior to the delivery of such
information, projections and estimates, including disclosures made pursuant to
the Private Securities Litigation Reform Act of 1995 to the extent provided to
the Secured Parties; provided further, it being recognized by the Administrative
Agent and the Lenders that projected or estimated information is not to be
viewed as fact and that actual results may differ from such projected or
estimated results set forth therein by a material amount.
SECTION 6.14. Regulations U and X. No Obligor is engaged in the business
of extending credit for the purpose of purchasing or carrying margin stock, and
no proceeds of any Credit Extensions will be used to purchase or carry margin
stock or otherwise for a purpose which violates, or would be inconsistent with,
F.R.S. Board Regulation U or Regulation X. Terms for which meanings are provided
in F.R.S. Board Regulation U or Regulation X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such
meanings.
SECTION 6.15. Good Neighbor Agreement. The Borrower is in full compliance
with the terms and provisions of the Good Neighbor Agreement, except where the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect.
SECTION 6.16. Status of Obligations as Senior Indebtedness, etc. The
subordination provisions of the Subordinated Debt, if any, contained in the
Subordinated Debt Documents are enforceable against the holders of the
Subordinated Debt by the holder of any "Senior Debt" or similar term referring
to the Obligations (as defined in the relevant Subordinated Debt Documents). All
Obligations, including those to pay principal of and interest (including
post-petition interest, whether or not allowed as a claim under bankruptcy or
similar laws) on the Loans and Reimbursement Obligations, and fees and expenses
in connection therewith, constitute "Senior Debt" and "Designated Senior Debt"
or similar terms relating to the Obligations (as defined in the relevant
Subordinated Debt Documents) and all such Obligations are entitled to the
benefits of the subordination created by the Subordinated Debt Documents. The
Borrower acknowledges that the Administrative Agent, each Lender and each Issuer
is entering into this Agreement and is extending its Commitments in reliance
upon the subordination provisions of the Subordinated Debt Documents.
SECTION 6.17. Mining Rights. The Borrower has acquired all Mining Rights
which are required in connection with the operation of the Facilities consistent
in all material respects with the Mine Plans and has obtained such other surface
and other rights as are necessary for access rights, water rights, plant sites,
tailings disposal, waste dumps, ore dumps, abandoned heaps or ancillary
facilities which are required in connection with the operation of the Facilities
consistent in all material respects with the Mine Plans (other than, in each
case, those permits pertaining to future operations that are to be obtained in
the ordinary course of business and as to which the Borrower has no reason to
believe will not be so obtained). All such Mining Rights and other rights are
sufficient in scope and substance for the operation of the Facilities consistent
in all material respects with the Mine Plans and no part of the purchase price
payable in connection with the acquisition of such Mining Rights and other
rights (other than royalty payments, if any,
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described in Item 6.17 of Disclosure Schedule) remains unpaid. All fixtures,
equipment, facilities and improvements necessary for (i) the efficient and
proper operation of the Nye Mine (consistent in all material respects with the
Mine Plan with respect to the Nye Mine and the Approvals (as defined in the
Mortgage dated as of the date thereof) relating thereto), (ii) the efficient and
proper operation of the East Boulder Mine (consistent in all material respects
with the Mine Plan with respect to the East Boulder Mine and the Approvals (as
defined in the Mortgage dated as of the date hereof) relating thereto) and (iii)
the efficient and proper operation of the Borrower's smelter and refinery
located in Columbus, Montana are either located on lands encumbered by such
Mortgage or will be located on lands encumbered by such Mortgage. The Borrower
has all the Mining Rights necessary to mine the Proven Reserves and Probable
Reserves reported in that certain due diligence audit dated as of June 18, 2004
prepared by the Mining Consultant and delivered to the Borrower and the Secured
Parties prior to the date hereof (the "Pincock Allen Report") and/or in the
Behre Dolbear Report (as defined in Section 5.1.8) or in the most recent update
of the Borrower's Proven Reserves and Probable Reserves furnished in accordance
with clause (k) of Section 7.1.1; all such Proven Reserves and Probable Reserves
are located on or under lands to which such Mining Rights relate; a Mortgage
encumbers and grants a Lien to the Administrative Agent, for the benefit of the
Secured Parties, in all such Mining Rights; and all facilities and improvements
(whether now existing or hereafter created or acquired) described or otherwise
necessary for conducting the operations consistent in all material respects with
the Mine Plans are or, in the case hereafter created or acquired, will be
located entirely on real property as to which the representations and warranties
set forth in Section 6.9 are true and correct and as to which the Administrative
Agent, for the benefit of the Secured Parties, has been granted a Lien pursuant
to a Mortgage.
SECTION 6.18. Technology. The Borrower owns or has the right to use all
technology and processes required to operate the Mines consistent in all
material respects with the Mine Plans. There are no material license agreements
granting the Borrower or any other Person rights in any patented process or the
right to use technical or secret know-how that are required for the operation of
the Mines.
SECTION 6.19. Supply Contracts. The Borrower is in material compliance
with the terms and provisions of each Material Supply Contract and Additional
Supply Contract.
SECTION 6.20. Labor Matters. (a) Neither the Borrower nor any Subsidiary
is a party to any labor dispute and there are no strikes or walkouts relating to
any labor contracts to which the Borrower or any of its Subsidiaries is a party
or is otherwise subject; (b) there is no unfair labor practice complaint pending
against the Borrower or any Subsidiary or, to the knowledge of the Borrower,
threatened against any of them, before the National Labor Relations Board that
is reasonably likely to have a Material Adverse Effect; (c) there is no
grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement pending against the Borrower or any Subsidiary
or, to the knowledge of the Borrower, threatened against any of them that is
reasonably likely to have a Material Adverse Effect; (d) no slowdown or stoppage
is pending against the Borrower or any Subsidiary, or to the knowledge of the
Borrower, threatened against the Borrower or any Subsidiary, that is reasonably
likely to have a Material Adverse Effect; (e) neither the Borrower nor any
Subsidiary is engaged in any unfair labor practice that is likely to have a
Material Adverse Effect; and (f) except as set forth in Item 6.20 of the
Disclosure Schedule (none of which items disclosed therein, singly or in the
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aggregate, have, or may reasonably be expected to have, a Material Adverse
Effect), there are no pending or threatened claims, complaints, notices,
inquiries or requests for information received by the Borrower or any of its
Subsidiaries with respect to any alleged violation of, or potential liability
under, any law relating to employee health and safety (including the
Occupational Safety and Health Act, 29 U.S.C.A. Section 651 et. seq. and the
Federal Mine Safety and Health Act, 30 U.S.C.A. Section 801 et. seq.) which
could reasonably be expected to result in liability for the Borrower and its
Subsidiaries in an aggregate amount exceeding $5,000,000 (exclusive of amounts
fully covered by insurance (less any applicable deductible) and as to which the
insurer has acknowledged its responsibility to cover) or which could reasonably
be expected to result in a Material Adverse Effect.
SECTION 6.21. Utilities. All utility services necessary for the operation
of the Facilities as contemplated by the Mine Plans (including electrical and
water supply) are available to the Facilities and the Borrower has entered into
agreements on commercially reasonable terms for the providing of such services.
SECTION 6.22. Solvency. Each of the Borrower and each Guarantor has (a)
assets which have a present fair saleable value greater on a going-concern basis
than its liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities), (b) has sufficient cash flow to enable it to pay its
debts as they mature and (c) does not have unreasonably small capital.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each Lender,
each Issuer and the Administrative Agent that until the Termination Date has
occurred, the Borrower will, and will cause its Subsidiaries to, perform or
cause to be performed the obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The Borrower
will furnish or cause to be furnished to the Administrative Agent (with
sufficient copies for each Lender) copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, an
unaudited consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such Fiscal Quarter and consolidated statements of income
and cash flow of the Borrower and its Subsidiaries for such Fiscal Quarter
and for the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, and including (in each case),
in comparative form the figures for the corresponding Fiscal Quarter in,
and year to date portion of, the immediately preceding Fiscal Year,
certified as complete and correct by the chief financial or accounting
Authorized Officer of the Borrower;
(b) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries, and the related consolidated statements of
income and cash flow of the
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Borrower and its Subsidiaries for such Fiscal Year, setting forth in
comparative form the figures for the immediately preceding Fiscal Year,
audited (without any Impermissible Qualification) by KPMG LLP (or Deloitte
& Touche, Ernst & Young, Price Waterhouse Coopers or any accounting firm
resulting from the merger or combination of any of the foregoing), which
shall include a calculation of Excess Cash Flow and of the financial
covenants set forth in Section 7.2.4 and stating that, in performing the
examination necessary to deliver the audited financial statements of the
Borrower, no knowledge was obtained of any Event of Default;
(c) concurrently with the delivery of the financial information
pursuant to clauses (a) and (b), (i) a Compliance Certificate, executed by
the chief financial or accounting Authorized Officer of the Borrower,
showing compliance with the financial covenants set forth in Section 7.2.4
and stating that no Default has occurred and is continuing (or, if a
Default has occurred, specifying the details of such Default and the
action that the Borrower or such Obligor has taken or proposes to take
with respect thereto) and (ii) a summary with respect to the Fiscal
Quarter as to which such Compliance Certificate is being delivered of (A)
the ounces of palladium and platinum sold under each Material Supply
Contract and all Supply Contracts in the aggregate, (B) with respect to
ounces sold under Material Supply Contracts, the prices at which such
ounces were sold, and with respect to ounces sold under other Supply
Contracts, the highest and lowest prices at which such ounces were sold
and (C) the Borrower's position under Hedging Agreements to which it is a
party;
(d) as soon as possible and in any event within three days after the
Borrower or any other Obligor obtains knowledge of the occurrence of a
Default, a statement of an Authorized Officer of the Borrower setting
forth details of such Default and the action which the Borrower or such
Obligor has taken and proposes to take with respect thereto;
(e) as soon as possible and in any event within three days after the
Borrower or any other Obligor obtains knowledge of (i) the occurrence of
any material adverse development with respect to any litigation, action,
proceeding or labor controversy described in Item 6.7 of the Disclosure
Schedule or in the Title Opinions or (ii) the commencement of any
litigation, action, proceeding or labor controversy of the type and
materiality described in Section 6.7 or in the Title Opinions, notice
thereof and, to the extent the Administrative Agent requests, copies of
all documentation relating thereto;
(f) promptly after the sending or filing thereof, copies of all
reports, notices, prospectuses and registration statements which any
Obligor files with the SEC or any national securities exchange;
(g) promptly upon becoming aware of (i) the institution of any steps
by any Person to terminate any Pension Plan, (ii) the failure to make a
required contribution to any Pension Plan if such failure is sufficient to
give rise to a Lien under Section 302(f) of ERISA, (iii) the taking of any
action with respect to a Pension Plan which could result in the
requirement that any Obligor furnish a bond or other security to the PBGC
or such Pension Plan, or (iv) the occurrence of any event with respect to
any Pension Plan which
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could reasonably be expected to result in the incurrence by any Obligor of
any material liability, fine or penalty, notice thereof and copies of all
documentation relating thereto;
(h) promptly following the mailing or receipt of any notice or
report delivered under the terms of any Subordinated Debt, copies of such
notice or report;
(i) as soon as available, and in any event within 30 days after the
end of each calendar month, a monthly financial and operating report
executed by the chief financial or principal accounting Authorized Officer
of the Borrower, which report shall include, among other information, a
written discussion detailing a comparison of all operating and cost
parameters on an actual versus budget basis (it being acknowledged and
agreed by the Borrower that the first such monthly report to be delivered
in any calendar year shall contain a written discussion detailing a
comparison of the operations of the Borrower and its Subsidiaries for the
prior calendar year to the Mine Plans in effect during such calendar
year);
(j) as soon as available and, in any event, within 30 days (in the
case of capital and operating budgets) and 90 days (in the case of Mine
Plans) after the end of each Fiscal Year updated capital and operating
budgets and Mine Plans;
(k) within 15 days of receipt thereof by the Borrower, copies of
each update to the Borrower's Proven Reserves and Probable Reserves
prepared by a third party acceptable to the Administrative Agent and the
Required Lenders (it being acknowledged and agreed by the Administrative
Agent and the Lenders that Behre Dolbear & Company, Inc. is an acceptable
third party). The initial update pursuant to this clause (k) shall be
prepared no later than March 31, 2005 and, following the preparation
thereof, at least annually thereafter and shall reflect year-over-year
changes, including a reconciliation of actual tons and grade mined
compared to projections for the areas mined and an explanation of any
changes to the parameters related to the geologic model with respect to
such reserves. The Borrower shall continue to report its Proven Reserves
and Probable Reserves at each of the Nye Mine and the East Boulder Mine in
each of its filings with the SEC on Form 10-K (which reports the Borrower
acknowledges shall constitute, for the avoidance of doubt, information
furnished to the Lenders for purposes of Section 6.13);
(l) as soon as available and in any event within 60 days after the
end of each Fiscal Year, projected five-year financial information
regarding the Borrower and its Subsidiaries, in form and scope reasonably
satisfactory to the Administrative Agent;
(m) notice of any unscheduled shutdowns of the mining and smelting
operations of the Borrower and its Subsidiaries which might have a
Material Adverse Effect;
(n) as soon as possible, but in no event later than 10 days after
execution and delivery thereof, copies of each Supply Contract not
previously delivered to the Administrative Agent;
(o) annually, not later than fifteen days prior to the expiry of
each insurance policy maintained by the Borrower and its Subsidiaries,
information confirming the
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renewal of such policy and a summary of the insurance maintained
thereunder, together with a certificate from a representative of the
Borrower, with respect to the accuracy and completeness of such
information and summary, and, if requested by the Administrative Agent,
certificates addressed to the Administrative Agent from the companies
issuing such insurance confirming the renewal of and specifying such
insurance coverage and the Borrower's compliance with Section 7.1.4;
(p) promptly notify the Administrative Agent and provide copies upon
receipt of all written claims, complaints, notices or inquiries relating
to, or as to compliance with, laws relating to employee health and safety
(including the Occupational Safety and Health Act, 29 U.S.C.A. Section 651
et. seq. and the Federal Mine Safety and Health Act, 30 U.S.C.A. Section
801 et. seq.), to the extent conditions described in such claims,
complaints, notices and inquiries could reasonably be expected to result
in a liability for the Borrower and its Subsidiaries in an aggregate
amount exceeding $2,500,000 and shall promptly resolve any material
non-compliance with such laws and keep its property free of any Lien
imposed by such laws; and
(q) such other financial and other information as any Lender or
Issuer through the Administrative Agent may from time to time reasonably
request (including hedging positions (if applicable), environmental
assessment/audit reports, and other information and reports in such detail
as the Administrative Agent may reasonably request).
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc. The
Borrower will, and will cause each of its Subsidiaries to,
(a) except as otherwise permitted by Section 7.2.10, preserve and
maintain its legal existence; and
(b) comply in all material respects with all applicable laws, rules,
regulations and orders, including the payment (before the same become
delinquent), of all taxes, assessments and governmental charges imposed
upon the Borrower or its Subsidiaries or upon their property except to the
extent being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP have been set
aside on the books of the Borrower or its Subsidiaries, as applicable.
SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep:
(a) all its and their ownership, lease, use, license and other
interests in the Facilities (including all unpatented and patented mining
claims) as are necessary or reasonably advisable for the Borrower to be
able to operate the Mines substantially in accordance with sound mining
and business practice, in compliance with the Mortgages and in a manner
such that the requirements of, and projections contained in, the Mine
Plans can reasonably be expected to be achieved in all material respects;
and
(b) its and their respective properties in good repair, working
order and condition (ordinary wear and tear excepted), and make necessary
repairs, renewals and replacements so that the business carried on by the
Borrower and its Subsidiaries may be
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properly conducted at all times, unless the Borrower or such Subsidiary
determines in good faith that the continued maintenance of any such
property is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to property and risks of a character
usually maintained by Persons of comparable size engaged in the same or similar
business and similarly situated, against loss, damage and liability of the kinds
and in the amounts customarily maintained by such Persons and shall use its best
efforts to ensure that each refiner, processor, warehouseman, transporter or
other Person that at any time has possession of any inventory or other assets of
the Borrower or its Subsidiaries maintains insurance with financially sound and
reputable insurance companies over such inventory or other assets with respect
to property and risks of a character usually maintained by Persons of comparable
size engaged in the same or similar business and similarly situated against
loss, damage and liability of the kinds and in the amounts customarily
maintained by such Persons. In any event, the following insurance will be
maintained as indicated below.
(a) Borrower's Insurance. The Borrower will maintain at a minimum
(with respect to itself and each of its Subsidiaries):
(i) Property, Boiler & Machinery & Business Interruption
Insurance. Insurance (including loss of use of operating facilities
and business interruption insurance) against loss (including loss of
profits) and damage covering all of the tangible real and personal
property and improvements of the Borrower and each of its
Subsidiaries (including tunnel boring machines) by reason of any
Insured Peril (as defined below) for an amount not less than
$250,000,000, and as shall be reasonable and customary and
sufficient to avoid the insured named therein from becoming a
co-insurer of any loss under such policy.
(ii) Comprehensive General Liability Insurance, Workers'
Compensation and/or Umbrella/Excess Insurance. A general liability
policy against claims for bodily injury, death or property damage
and products and completed operations liability occurring on, in or
about the properties owned or operated by the Borrower and its
Subsidiaries and workers' compensation insurance and employers'
liability insurance covering the Borrower and its Subsidiaries, in
amounts and coverages comparable in all respects with insurance
carried by responsible owners and operators of businesses similar to
those of the Borrower and its Subsidiaries and for property similar
in use in the jurisdictions where such properties are located, but
in no event less than $20,000,000 inclusive per occurrence and in
the aggregate (except in the case of workers' compensation
insurance), and such insurance shall contain all standard extensions
customary for such policy.
(iii) Automobile Liability Insurance for Bodily Injury and
Property Damage. Insurance against liability for bodily injury and
property damage in respect of all vehicles (whether owned, hired or
rented by the Borrower or any of its Subsidiaries) at any time
located at, or used in connection with, its properties
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or operations in such amounts as are then customary for
vehicles used in connection with similar properties and
businesses and to the extent required by law, but in no event
less than $1,000,000 combined single limit liability.
(b) Third Party Construction Insurance. The Borrower will
ensure that each Person contracted by the Borrower or any of its
Subsidiaries to perform construction or related services with
respect to, or to provide equipment with respect to, the Facilities
maintains at a minimum the following insurance:
(i) Equipment Insurance. Contractors equipment insurance
covering equipment and tools, owned, rented or leased, for the
full cost of replacement of such equipment on an "all risks"
basis.
(ii) Comprehensive General Liability Insurance. A
general liability policy with limits customary for such Person
engaged in such construction or services inclusive per
occurrence against claims for bodily injury, death or property
damage including loss of use thereof. Coverage shall
specifically include, but not be limited to, coverage for
damage to property adjacent to the property owned or operated
by the Borrower or its Subsidiaries. Such insurance shall
contain all standard extensions customary for such policy and
a waiver by the insurer of subrogation rights against the
Borrower.
(iii) Workers' Compensation and Employers' Liability
Insurance. Workman's compensation insurance as required under
applicable law covering all persons employed by the insured,
including, but not limited to, state workers' compensation,
and employers' liability insurance with a limit customary for
such Person engaged in such construction or services.
(iv) Automobile Liability Insurance for Bodily Injury
and Property Damage. Insurance against liability for bodily
injury and property damage in respect of all vehicles (whether
owned, hired or rented by such Person) at any time located at,
or used in connection with, the property owned or operated by
the Borrower or its Subsidiaries in such amounts as are then
customary for vehicles used in connection with similar
properties and businesses and to the extent required by law.
Such insurance shall contain a waiver by the insurer of
subrogation rights against the Borrower.
(c) Third Party Engineering/Design Insurance. The Borrower will
ensure that each Person contracted by the Borrower or any of its
Subsidiaries to perform engineering and/or design or related services with
respect to the Facilities maintains at a minimum professional liability
insurance relating to errors and omissions in an amount not less than that
which is customary for a Person performing such services.
All such insurance shall be written by financially responsible companies
selected by the Borrower and (except for automobile insurance) having an A.M.
Best rating of "A-" or better and being in a financial size category of VII or
larger (or an equivalent rating of any successor publication of a similar
nature), or by other companies acceptable to the Administrative Agent,
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and (other than workers' compensation) shall name the Administrative Agent as
loss payee (to the extent covering risk of loss or damage to tangible property)
and as an additional insured as its interests may appear (to the extent covering
any other risk). Each policy referred to in this Section 7.1.4 shall provide
that it will not be canceled or reduced, or allowed to lapse without renewal,
except after not less than 30 days' notice to the Administrative Agent and shall
also provide that the interests of the Administrative Agent and the Lenders
shall not be invalidated by any foreclosure or other proceedings relating to
such property. The Borrower will advise the Administrative Agent promptly of any
significant policy cancellation (other than any such cancellation in connection
with the replacement thereof), reduction or amendment.
On or before the Closing Date, the Borrower will deliver to the
Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required to be
maintained by the Borrower hereunder setting forth the respective coverages,
limits of liability, carrier, policy number and period of coverage. The Borrower
will not, and will not permit any of its Subsidiaries to, obtain or carry
separate insurance concurrent in form or contributing in the event of loss with
that required by this Section 7.1.4 unless the Administrative Agent is, with
respect to property loss or damage, a named insured, or otherwise an additional
insured thereunder, for the benefit of the Secured Parties, with loss payable as
provided herein. The Borrower will immediately notify the Administrative Agent
whenever any such separate insurance is obtained and shall deliver to the
Administrative Agent the certificates evidencing the same.
Without limiting the obligations of the Borrower under the foregoing
provisions of this Section 7.1.4, in the event the Borrower shall fail to
maintain in full force and effect insurance as required by the foregoing
provisions of this Section 7.1.4, then the Administrative Agent may (upon notice
to the Borrower), but shall have no obligation so to do, procure insurance
covering the interests of the Lenders and the Administrative Agent in such
amounts and against such risks as the Administrative Agent (or the Required
Lenders) shall deem appropriate, and the Borrower shall reimburse the
Administrative Agent in respect of any premiums paid by the Administrative Agent
in respect thereof.
For purposes hereof, the term "Insured Peril" shall mean, collectively,
all risks (as such term is customarily used in the market for insurance) of
physical loss including flood, earthquake and windstorm in the jurisdictions
where the properties owned or operated by the Borrower or any of its
Subsidiaries are located.
SECTION 7.1.5. Books and Records; Annual Assessment Meeting. (a) The
Borrower will, and will cause each of its Subsidiaries to, keep books and
records in accordance with GAAP which accurately reflect all of its business
affairs and transactions and permit the Administrative Agent or any of its
representatives (including the Mining Consultant), at reasonable times and
intervals upon reasonable notice to the Borrower, to inspect any and all of the
properties and operations of the Borrower (including the Mines) and to visit
each Obligor's offices so long as such inspections are conducted in accordance
with U.S. Mine Safety and Health Administration regulations (it being understood
that, without limiting the generality of this paragraph, the Mining Consultant
shall be permitted to visit and inspect each Mine not less than once every three
(3) month period), to discuss such Obligor's financial matters with its officers
and employees and its independent public accountants (and, so long as reasonable
notice has been
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provided to the Borrower, the Borrower hereby authorizes such independent public
accountant to discuss the Borrower's and each Obligor's financial matters with
the Administrative Agent or its representatives whether or not any
representative of the Borrower or such Obligor is present) and to examine (and
photocopy extracts from) any of its books and records. The Borrower shall be
afforded an opportunity to be present at, or party to, each such inspection,
visit and discussion, provided that the right of the Administrative Agent and
its representatives to conduct any such inspection, visit or discussion shall
not be adversely affected by the Borrower's failure to be so present or to be a
party thereto. Unless a Default has occurred and is continuing, the Borrower
shall only be required to pay the costs and expenses incurred in connection with
the Administrative Agent's exercise of its rights pursuant to this Section with
respect to two inspections per calendar year.
(b) If requested by the Required Lenders or the Administrative Agent, the
Borrower shall arrange an annual meeting of the Lenders, at a location to be
determined by the Administrative Agent in consultation with the Borrower,
pursuant to which meeting the Lenders will be given an opportunity to discuss
the operations of the Borrower and its Subsidiaries with the officers and
employees of the Borrower, including an opportunity to visit and inspect the
Borrower's operations with such officers and/or employees. The Borrower shall
provide at least 30 days' prior written notice of such meeting and such meeting
shall occur on a Business Day. Unless a Default has occurred and is continuing,
the costs and expenses of a Lender attending such annual meeting shall be the
responsibility of such Lender.
SECTION 7.1.6. Environmental Law Covenant. The Borrower will, and will
cause each of its Subsidiaries to,
(a) use and operate all of its and their facilities and properties
in material compliance with all Environmental Laws, keep, or timely apply
for renewal of, all necessary permits, approvals, certificates, licenses
and other authorizations relating to environmental matters and required
for current operations in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance with
all applicable Environmental Laws; and
(b) promptly notify the Administrative Agent and provide copies upon
receipt of all written claims, complaints, notices or inquiries relating
to the condition of its facilities and properties in respect of, or as to
compliance with, Environmental Laws, to the extent conditions described in
such claims, complaints, notices and inquiries could reasonably be
expected to result in a liability for the Borrower and its Subsidiaries in
an aggregate amount exceeding $2,500,000 and shall promptly resolve any
material non-compliance with Environmental Laws and keep its property free
of any Lien imposed by any Environmental Law.
SECTION 7.1.7. Use of Proceeds. The Borrower will apply the proceeds of
the Credit Extensions as follows:
(a) the proceeds of the Term Loans shall be used to provide for the
general corporate needs of the Borrower, to refinance amounts outstanding
under the Existing Credit Facility and to pay fees and expenses related to
the Transaction;
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(b) the proceeds of Revolving Loans shall be used to provide for the
general corporate and working capital needs of the Borrower and to pay
fees and expenses related to the Transaction, including for the issuing of
Letters of Credit for the account of the Borrower; and
(c) the proceeds of any Incremental Term Loans shall be used solely
as set forth in the applicable Incremental Term Loan Supplement.
SECTION 7.1.8. Additional Real Property. The Borrower shall, and shall
cause each of its Subsidiaries to, cause the Administrative Agent and the
Lenders to have at all times a first priority perfected security interest
(subject only to Permitted Liens) in all of the real property acquired from time
to time by the Borrower and its Subsidiaries (other than any such real property
that, when added to the net book value of all other real property acquired by
the Borrower and its Subsidiaries in the calendar year in which such
determination is being made, has a net book value of less than $1,000,000);
provided, however, that, in the event such real property is owned by a Foreign
Subsidiary (other than a Foreign Subsidiary that (i) is treated as a partnership
under the Code or (ii) is not treated as an entity that is separate from (A) the
Borrower, (B) any Person that is treated as a partnership under the Code or (C)
any "United States person" (as defined in Section 7701(a)(30) of the Code)),
such Subsidiary shall not be required to grant such security interest (1) if the
Required Lenders have otherwise agreed or (2) to the extent such grant could
reasonably be expected to constitute at any time an investment of earnings in
United States property under Section 956 (or any successor provision thereto) of
the Code that would increase the amount of United States federal income tax that
would otherwise be payable by the Borrower and the other members of the
affiliated group of corporations filing a consolidated federal income tax return
with the Borrower in the absence of such grant, as determined by the Borrower
based on existing financial statements and on financial projections prepared in
good faith based upon assumptions which the Borrower believes to be reasonable
and as evidenced by a certificate of the chief financial Authorized Officer of
the Borrower that is accepted in writing by the Administrative Agent (such
acceptance not to be unreasonably withheld and which acceptance shall be deemed
to have occurred in the absence of a written notice from the Administrative
Agent that is given to the Borrower within five Business Days of the
Administrative Agent's receipt of such certificate, indicating the reasons for
not accepting such certificate); provided, further, however, that, in the event
of any change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive or guideline
of any Governmental Authority that could reasonably be expected to alter the
conclusion set forth in such certificate, the Administrative Agent or the
Required Lenders may request the Borrower to deliver another such certificate in
light of such event and, in the absence of the delivery and acceptance of such
certificate as provided above, require the grant of such security interest.
Without limiting the generality of the foregoing, the Borrower shall, and shall
cause each such Subsidiary to, execute and deliver or cause to be executed and
delivered Mortgages, that may be necessary or, in the opinion of the
Administrative Agent, desirable to create a valid, perfected Lien against such
real property, together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of each such Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to create a valid, perfected and
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(subject to Permitted Liens) first priority Lien against the properties
purported to be covered thereby;
(b) (i) mortgagee's title insurance policies with respect to
property purported to be covered by such Mortgage (except patented and
unpatented mining and millsite claims) in favor of the Administrative
Agent for the benefit of the Secured Parties in amounts and in form and
substance and issued by insurers reasonably satisfactory to the
Administrative Agent addressed to the Administrative Agent and the
Lenders, insuring that title to such property is marketable and that the
interests created by such Mortgage constitute valid, perfected first
priority Liens thereon free and clear of all defects and encumbrances
other than as approved by the Administrative Agent, and such policies
shall also include a survey reading, and, if required by the
Administrative Agent and if available, revolving credit endorsement,
comprehensive endorsement, variable rate endorsement, access and utilities
endorsements, mechanic's lien endorsement and such other endorsements as
the Administrative Agent shall reasonably request and shall be accompanied
by evidence of the payment in full of all premiums thereon, and (ii)
mortgagee's title opinions with respect to patented and unpatented mining
and millsite claims purported to be covered by such Mortgage in favor of
the Administrative Agent for the benefit of the Secured Parties addressed
to the Administrative Agent and the Lenders and in form and substance
reasonably satisfactory to the Administrative Agent;
(c) Uniform Commercial Code Financing Statements related to the
security interests created by each such Mortgage, together with evidence
of the completion (or satisfactory arrangements for the completion) of all
recordings and filings of such financing statements in the appropriate
offices and records as may be necessary or, in the reasonable opinion of
the Administrative Agent, desirable to create valid, perfected and
(subject to Permitted Liens) first priority Liens against the improvements
purported to be covered thereby; and
(d) such other approvals, opinions or documents as the
Administrative Agent may reasonably request, including a current survey
(or, in the case of property in respect of a Mine, the most recently
completed mineral survey) of each property purported to be covered by each
such Mortgage in form and substance satisfactory to the Administrative
Agent and the title insurer.
SECTION 7.1.9. Future Subsidiaries. Without limiting the effect of any
provision contained herein (including Section 7.2.5), upon any Person becoming
either a direct or indirect Subsidiary of the Borrower,
(a) such Person, if not theretofore a party to a Subsidiary Security
Agreement and Subsidiary Guaranty, shall execute and deliver to the
Administrative Agent a Subsidiary Security Agreement and Subsidiary
Guaranty for the benefit of the Secured Parties; provided, however, that,
in the event such Subsidiary is a Foreign Subsidiary (other than a Foreign
Subsidiary that (i) is treated as a partnership under the Code or (ii) is
not treated as an entity that is separate from (A) the Borrower, (B) any
Person that is treated as a partnership under the Code or (C) any "United
States person" (as defined in Section
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7701(a)(30) of the Code)), such Subsidiary shall not be required to become
a guarantor under Subsidiary Guaranty or execute and deliver a Subsidiary
Security Agreement (1) if the Required Lenders have otherwise agreed or
(2) to the extent such guaranty could reasonably be expected to constitute
at any time an investment of earnings in United States property under
Section 956 (or any successor provision thereto) of the Code that would
increase the amount of United States federal income tax that would
otherwise be payable by the Borrower and the other members of the
affiliated group of corporations filing a consolidated federal income tax
return with the Borrower in the absence of such guaranty, as determined by
the Borrower based on existing financial statements and on financial
projections prepared in good faith based upon assumptions which the
Borrower believes to be reasonable and as evidenced by a certificate of
the chief financial Authorized Officer of the Borrower that is accepted in
writing by the Administrative Agent (such acceptance not to be
unreasonably withheld and which acceptance shall be deemed to have
occurred in the absence of a written notice from the Administrative Agent
that is given to the Borrower within five Business Days of the
Administrative Agent's receipt of such certificate, indicating the reasons
for not accepting such certificate); provided, further, however, that, in
the event of any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive or guideline of any Governmental Authority that could reasonably
be expected to alter the conclusion set forth in such certificate, the
Administrative Agent or the Required Lenders may request the Borrower to
deliver another such certificate in light of such event and, in the
absence of the delivery and acceptance of such certificate as provided
above, require the execution and delivery by such Person of such
Subsidiary Guaranty;
(b) the Borrower or, if not the Borrower, the Subsidiary of the
Borrower (provided such Subsidiary is not a Foreign Subsidiary exempted
from the requirement of becoming a Guarantor as a result of the proviso to
the preceding clause (a)) that will own shares of the Capital Stock of
such Person (which Subsidiary, if not theretofore a party to a Subsidiary
Security Agreement, shall execute and deliver to the Administrative Agent
a Subsidiary Security Agreement for the purpose of becoming a pledgor
thereunder), shall, pursuant to the applicable Security Agreement, pledge
to the Administrative Agent, for the benefit of the Secured Parties, (i)
all of the outstanding shares of the Capital Stock of such Person owned by
the Borrower or such Subsidiary, together with (A) undated stock powers or
equivalent instruments of transfer satisfactory to the Administrative
Agent for such certificates or such other evidence of beneficial
ownership, executed in blank (or, if any such shares of Capital Stock are
uncertificated, confirmation and evidence satisfactory to the
Administrative Agent that the security interest in such uncertificated
securities has been perfected by the Administrative Agent in accordance
with the U.C.C. or any similar or local law which may be applicable) and
(B) Uniform Commercial Code Financing Statements naming the Borrower or
such Subsidiary as the debtor and the Administrative Agent as the secured
party, suitable for filing under the U.C.C. of all jurisdictions as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the security interest of the Administrative Agent in
the interests of the Borrower or such Subsidiary in such Person pledged
pursuant to such Security Agreement; provided, however, that the Borrower
or such Subsidiary shall not be required to pledge the shares of Capital
Stock of a Foreign Subsidiary required to be
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pledged hereunder (1) if the Required Lenders have otherwise agreed or (2)
to the extent such pledge could reasonably be expected to constitute at
any time an investment of earnings in United States property under Section
956 (or any successor provision thereto) of the Code that would increase
by a material amount the amount of United States federal income tax that
would otherwise be payable by the Borrower and the other members of the
affiliated group of corporations filing a consolidated federal income tax
return with the Borrower in the absence of such pledge, as determined by
the Borrower based on existing financial statements and on financial
projections prepared in good faith based upon assumptions which the
Borrower believes to be reasonable and as evidenced by a certificate of
the chief financial Authorized Officer of the Borrower that is accepted in
writing by the Administrative Agent (such acceptance not to be
unreasonably withheld and which acceptance shall be deemed to have
occurred in the absence of a written notice from the Administrative Agent
that is given to the Borrower within five Business Days of the
Administrative Agent's receipt of such certificate, indicating the reasons
for not accepting such certificate); provided further, however, that, in
the event of any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive or guideline of any Governmental Authority that could reasonably
be expected to alter the conclusion set forth in such certificate, the
Administrative Agent or the Required Lenders may request the Borrower to
deliver another such certificate in light of such event and, in the
absence of the delivery and acceptance of such certificate as provided
above, require the pledge of such shares of Capital Stock;
(c) the Administrative Agent shall have received from each such
Person certified copies of U.C.C. Requests for Information or Copies (Form
UCC-11), or a similar search report certified by a party acceptable to the
Administrative Agent, dated a date reasonably near (but prior to) the date
of any such Person becoming a direct or indirect Subsidiary of the Person,
listing all effective financing statements, tax liens and judgment liens
which name such Person as the debtor and which are filed in the
jurisdictions in which filings are to be made pursuant to this Agreement
and the other Loan Documents, and in such other jurisdictions as the
Administrative Agent may reasonably request, together with copies of such
financing statements (none of which (other than financing statements (i)
filed pursuant to the terms hereof in favor of the Administrative Agent,
if such Form UCC-11 or search report, as the case may be, is current
enough to list such financing statements, (ii) being terminated pursuant
to termination statements that are to be delivered on or prior to the date
such Person becomes such Subsidiary or (iii) in respect of Liens permitted
under Section 7.2.3) shall cover any of the collateral described in the
Security Agreements);
(d) the Administrative Agent shall have received from each such
Person (i) Uniform Commercial Code Financing Statements naming each such
Person as the debtor and the Administrative Agent as the secured party,
for the benefit of the Secured Parties, suitable for filing under the
U.C.C. of all jurisdictions as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable to perfect the security
interest of the Administrative Agent pursuant to the Security Agreement
entered into by such Person, and (ii) an executed Perfection Certificate
(as defined in the applicable Security Agreement); and
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(e) the Administrative Agent shall have received from such Person or
the Borrower (i) all applicable Counterparty Notices required to be
delivered pursuant to Sections 3.6 and 4.10(h) of a Security Agreement
and/or Sections 2.10 and 3.3(c) of a Mortgage, and (ii) landlord lien
notices with respect to each lessor of premises leased to such Subsidiary
with respect to the assets of such Subsidiary located on such premises,
together, in each case, with such opinions of legal counsel as the
Administrative Agent may reasonably request, which legal opinions shall be in
form and substance reasonably satisfactory to the Administrative Agent.
SECTION 7.1.10. Additional Collateral. Without limiting the provisions of
Sections 7.1.8 and 7.1.9, the Borrower shall, and shall cause each Subsidiary
(other than a Subsidiary exempted from the requirement of granting a security
interest as a result of the proviso to the first sentence of Section 7.1.8) to,
cause the Lenders to have at all times a first priority perfected security
interest (subject only to Liens and encumbrances permitted under Section 7.2.3
and the exclusions set forth in Sections 7.1.8 and 7.1.9) in all of the property
(real and personal) owned from time to time by the Borrower and such Subsidiary
(other than Excluded Real Property) to the extent the same constitutes or would
constitute collateral under a Security Agreement or Mortgage.
SECTION 7.1.11. Provision of Staff. The Borrower shall ensure that there
are sufficient competent technical and management employees engaged in
connection with the Mines with a view to enabling the operation and maintenance
of the Mines substantially in accordance with the Mine Plans.
SECTION 7.1.12. Supply Contracts. The Borrower shall comply in all
material respects with all terms and provisions of the Material Supply Contracts
and Additional Supply Contracts and shall promptly notify the Administrative
Agent and provide copies upon receipt of all notices or claims relating to any
non-compliance or breach by either the Borrower or any Material Supply Contract
Counterparty or Additional Supply Contract Counterparty under any Material
Supply Contract or Additional Supply Contract and information detailing the
nature of such non-compliance or breach and any proposed plans and time periods
for remedying such non-compliance or breach.
SECTION 7.1.13. Material Supply Contracts, Additional Supply Contracts;
Counterparty Notices. The Borrower shall use its reasonable best efforts to
provide the Administrative Agent with Supply Contract Counterparty Notices duly
executed by each Material Supply Contract Counterparty and Additional Supply
Contract Counterparty as soon as practicable following the Closing Date to the
extent such executed Supply Contract Counterparty Notices were not delivered to
the Administrative Agent on or prior to the Closing Date.
SECTION 7.1.14. Economic Development Revenue Bond Tax Event. The Borrower
shall use its reasonable best efforts to contest, either directly or in the name
of the holder of any Economic Development Revenue Bond, to the fullest extent
permitted by the Permitted Revenue Bond Documents and applicable law, any
determination by the Internal Revenue Service or a Federal court that any
interest paid or payable on any Economic Development Revenue Bond is or was
includable in the gross income of any holder of such Economic Development
Revenue
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Bond, other than a holder who is a "substantial user" of the Project or a
"related person" within the meaning of Section 147(a) of the Code.
SECTION 7.1.15. Interest Rate Protection. In the event that, at any time
after September 30, 2004, the LIBO Rate for a loan in a principal amount equal
to the then outstanding principal amount of the Term Loans and with an Interest
Period of three months would equal or exceed 4.5%, the Borrower shall, within
forty-five days of receiving notice from the Administrative Agent or the
Required Lenders to comply with the terms of this Section 7.1.15, enter into an
interest rate swap or similar interest rate protection arrangement with a Lender
or the Administrative Agent or an Affiliate of a Lender or the Administrative
Agent for the purpose of protecting the Borrower against fluctuations in
interest rates to the extent necessary to provide that at least 50% of the
outstanding aggregate principal amount of the Term Loans (which may take into
account the scheduled amortization thereof as set forth in clause (g) of Section
3.1.1 hereof) is subject to a fixed interest rate (after giving effect to such
arrangement), with the terms and conditions of such arrangement being reasonably
satisfactory to the Administrative Agent, and thereafter maintain such
arrangement in full force and effect through December 31, 2007. It is understood
and agreed that the terms of the preceding sentence shall not be deemed to limit
the Borrower from entering into an interest rate swap or similar interest rate
protection arrangement that provides for a greater percentage of the outstanding
aggregate principal amount of the Term Loans being subject to a fixed interest
rate, to the extent permitted by clause (j) of Section 7.2.2.
SECTION 7.1.16. Maintenance of Ratings. The Borrower shall cause the Loans
to at all times be rated by both S&P and Moody's.
SECTION 7.1.17. Norilsk Palladium. Prior to the sale of any Norilsk
Palladium, possession of such Norilsk Palladium shall be maintained by JPMorgan
Chase Bank or any other Person consented to by the Administrative Agent (the
"Depository"), for the benefit of the Borrower (as beneficial owner) and the
Administrative Agent (as agent for the Secured Parties in their capacity as
holders of a security interest in such Norilsk Palladium), and the Borrower
shall cause the Depository to provide written notice to the Administrative Agent
of each transfer of Norilsk Palladium within two (2) Business Days of such
transfer.
SECTION 7.2. Negative Covenants. The Borrower covenants and agrees with
each Lender, each Issuer and the Administrative Agent that until the Termination
Date has occurred, the Borrower will, and will cause its Subsidiaries to,
perform or cause to be performed the obligations set forth below.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Subsidiaries to:
(a) engage in any business activity except those business activities
engaged in on the date of this Agreement and activities reasonably
incidental thereto; and
(b) cease operations at the principal operating properties of the
Borrower and of its Subsidiaries, respectively, other than for (i)
scheduled maintenance and repair as provided for in the Mine Plan, (ii)
emergency repair in order to prevent potential serious harm to human life
or the occurrence of a Material Adverse Effect, (iii) acts of God and
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other events beyond the reasonable control of the Borrower, such as
explosions, fires, floods, accidents, war or warlike hostilities, riots,
earthquakes, power shortages, labor disputes (to the extent the period of
time any such labor dispute (inclusive of all related labor disputes) is
in effect does not exceed 45 days) and acts of military or police
authority (each of the foregoing events described in this subclause (iii)
being a "Force Majeure Event") or (iv) compliance with the directives of
any Governmental Authority; provided that, in each such case of cessation,
such operations or work are resumed as soon as reasonably practicable (it
being understood and agreed that the occurrence of any such cessation
shall not be deemed to excuse or prevent the occurrence of any other
Default or Event of Default hereunder).
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, other than:
(a) Indebtedness in respect of the Obligations;
(b) until the date of the initial Credit Extension, Indebtedness
related to the Existing Credit Facility;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) of the Disclosure Schedule, and Refinancing or
renewal of such Indebtedness;
(d) unsecured Indebtedness (i) incurred in the ordinary course of
business of the Borrower and its Subsidiaries (including open accounts
extended by suppliers on normal trade terms in connection with purchases
of goods and services which are not overdue for a period of more than 90
days or, if overdue for more than 90 days, as to which a dispute exists
and adequate reserves in conformity with GAAP have been established on the
books of the Borrower or such Subsidiary) and (ii) in respect of
performance, reclamation, surety or appeal bonds provided in the ordinary
course of business or letters of credit issued in lieu of such bonds, but
excluding (in each case), Indebtedness incurred through the borrowing of
money or Contingent Liabilities in respect thereof;
(e) Indebtedness (i) in respect of industrial revenue bonds or other
similar governmental or municipal bonds, (ii) evidencing the deferred
purchase price of newly acquired property or incurred to finance the
acquisition of equipment of the Borrower and its Subsidiaries (pursuant to
purchase money mortgages or otherwise, whether owed to the seller or a
third party) used in the ordinary course of business of the Borrower and
its Subsidiaries (provided that such Indebtedness is incurred within 60
days of the acquisition of such property) and (iii) in respect of
Capitalized Lease Liabilities; provided that the aggregate amount of all
Indebtedness outstanding pursuant to this clause, together with the
aggregate amount of the Capitalized Lease Liabilities permitted pursuant
to clause (c) of this Section 7.2.2 outstanding, shall not at any time
exceed $15,000,000 (it being understood and agreed that Permitted Revenue
Bond Indebtedness (which Indebtedness is permitted pursuant to clause (h)
hereof) shall not be deemed to have been incurred under this clause (e)
and shall therefore not be counted against such $15,000,000);
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(f) Indebtedness of any Guarantor that is a Wholly Owned Subsidiary
owing to the Borrower or any other Guarantor that is a Wholly Owned
Subsidiary, which Indebtedness
(i) shall be evidenced by one or more promissory notes in form
and substance satisfactory to the Administrative Agent, duly
executed and delivered in pledge to the Administrative Agent
pursuant to a Loan Document, and shall not be forgiven or otherwise
discharged for any consideration other than payment in full or in
part in cash (provided that only the amount repaid in part shall be
discharged); and
(ii) if incurred by a Foreign Subsidiary, shall not (when
aggregated with the amount of Investments made by the Borrower and
the Guarantors in Foreign Subsidiaries under clause (e)(i) of
Section 7.2.5), exceed $1,000,000;
(g) unsecured Indebtedness of the Borrower owing to a Subsidiary
that has previously executed and delivered to the Administrative Agent for
the benefit of the Secured Parties the Intercompany Subordination
Agreement;
(h) Permitted Revenue Bond Indebtedness;
(i) Indebtedness of a Person that becomes a Subsidiary of the
Borrower pursuant to a Permitted Acquisition and Indebtedness otherwise
assumed by the Borrower or any of its Subsidiaries in connection with a
Permitted Acquisition; provided that (A) such Indebtedness existed prior
to the applicable Permitted Acquisition and was not incurred or created in
anticipation thereof and (B) all such Indebtedness so assumed in all
Acquisitions consummated since the date hereof, does not exceed
$50,000,000;
(j) Hedging Obligations (i) arising under an interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
other arrangement designed to protect the Borrower against fluctuations in
interest rates on the Term Loans, provided that the notional amount under
any such arrangement does not exceed the aggregate principal amount of the
Term Loans then outstanding, (ii) arising under a currency exchange
agreement or other arrangement designed to protect the Borrower against
fluctuations in currency exchange rates, provided that such agreement or
arrangement was not entered into for speculative purposes and would be
permitted under Section 7.2.16 or (iii) arising under commodity swaps,
commodity hedging agreements or other arrangements designed to protect the
Borrower against fluctuations in commodity prices, provided that such
swap, agreement or arrangement would be permitted under Section 7.2.16;
(k) obligations of the Borrower or any of its Subsidiaries to
repurchase from a Person palladium, platinum or rhodium that was sold for
cash by the Borrower or such Subsidiary to such Person from that portion
of the Borrower's or such Subsidiary's inventory of palladium, platinum or
rhodium that was not subject to delivery to ultimate purchasers prior to
the date such obligation to repurchase would mature; provided that (i)
such obligation to repurchase is incurred at the time the relevant
palladium, platinum
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or rhodium was sold to such Person and matures within 180 days (or, in the
case of rhodium, 360 days) of the date the relevant palladium, platinum or
rhodium was sold to such Person (the number of days between the date of
such sale and the maturity of such obligation, the "Relevant Term") and
(ii) the aggregate amount of such obligation to repurchase does not exceed
the sum of (A) the aggregate amount received by the Borrower or such
Subsidiary from the sale of such palladium, platinum or rhodium to such
Person and (B) the amount of interest on such aggregate amount that would
accrue during the Relevant Term assuming a rate of interest equal to the
Alternate Base Rate;
(l) Indebtedness in respect of Subordinated Debt of the Borrower to
the extent the aggregate principal amount of all such Indebtedness
outstanding at any time does not exceed $125,000,000; provided that, prior
to the incurrence of such Indebtedness, the Borrower shall have delivered
to the Administrative Agent a Compliance Certificate for the period of
four full Fiscal Quarters immediately preceding the incurrence of such
Indebtedness (prepared in good faith and in a manner and using such
methodology which is consistent with the most recent financial statements
delivered pursuant to Section 7.1.1 and, to the extent applicable,
Regulation S-X under the Securities Act of 1933, as amended) giving pro
forma effect to the incurrence of such Indebtedness and to each Permitted
Acquisition (if any) financed with the proceeds of such Indebtedness and
each other Permitted Acquisition (if any) consummated during such period
of four Fiscal Quarters (together with all Indebtedness and other
liabilities incurred or assumed in connection with such Permitted
Acquisitions) as if all such Indebtedness and liabilities had been
incurred or assumed and all such Permitted Acquisitions consummated as of
the first day of such period and evidencing compliance with the covenants
set forth in Section 7.2.4;
(m) Contingent Obligations consisting of (i) guarantees by the
Borrower or any Subsidiary that is a Guarantor hereunder of obligations of
the Borrower or any Subsidiary that is a Guarantor hereunder and (ii)
obligations arising under indemnity agreements with title insurers in
connection with title insurance policies that have been issued to the
Administrative Agent (for the benefit of the Secured Parties); and
(n) other Indebtedness of the Borrower and its Subsidiaries (other
than Indebtedness of Foreign Subsidiaries owing to the Borrower or
Domestic Subsidiaries) in an aggregate amount at any time outstanding not
to exceed $10,000,000.
provided, however, that no Indebtedness otherwise permitted by clause (e),
(f)(ii), (i) or (m) shall be assumed or otherwise incurred if a Default has
occurred and is then continuing or would result therefrom.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or permit to exist any Lien upon any
of its property (including Capital Stock of any Person), revenues or assets,
whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations;
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(b) until the date of the initial Credit Extension, Liens securing
payment of Indebtedness of the type described in clause (b) of Section
7.2.2;
(c) Liens existing as of the Effective Date and disclosed in Item
7.2.3(c) of the Disclosure Schedule securing Indebtedness described in
such Item 7.2.3(c), and Refinancings or renewals of such Indebtedness;
provided that no such Lien shall encumber any additional property and the
amount of Indebtedness secured by such Lien is not increased from that
existing on the Effective Date (as such Indebtedness may have been
permanently reduced subsequent to the Effective Date);
(d) Liens securing Indebtedness of the type permitted under clause
(e) of Section 7.2.2; provided that (i) such Lien is granted within 60
days after such Indebtedness is incurred, (ii) the Indebtedness secured
thereby does not exceed 80% (or, in the case of Indebtedness of the type
permitted by subclause (iii) of clause (e) of Section 7.2.2, 100%) of the
lesser of the cost or the fair market value of the applicable property,
improvements or equipment at the time of such acquisition (or
construction), (iii) in the event such Liens secure Indebtedness of the
type permitted under subclause (e)(i) of Section 7.2.2, such Liens do not
encumber any interest of the Borrower or any Subsidiary in either Mine or
the J-M Reef or any other asset of the Borrower or any Subsidiary directly
or indirectly involved in, or otherwise related to, the construction or
operation of the Mines and (iv) such Lien secures only the assets that are
the subject of the Indebtedness referred to in such clause;
(e) Liens securing Indebtedness permitted by clause (i) of Section
7.2.2; provided that such Liens existed prior to the acquisition of such
Person or Person's assets, were not created in anticipation thereof and
attach only to specific tangible assets of such Person (and not assets of
such Person generally);
(f) Liens in favor of carriers, warehousemen, mechanics, materialmen
and landlords granted in the ordinary course of business for amounts not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books, and which at no time exceed, in the
aggregate, $5,000,000;
(g) Liens (other than Liens in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, bids, leases or other similar obligations (other
than for borrowed money or reclamation bonds) entered into in the ordinary
course of business or to secure obligations on surety and appeal bonds or
performance bonds (other than reclamation bonds);
(h) judgment Liens in existence for less than 45 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies and which do not
otherwise result in an Event of Default under Section 8.1.6;
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(i) easements, rights-of-way, zoning restrictions, minor defects or
irregularities in title and other similar encumbrances not interfering in
any material respect with the value or use of the property to which such
Lien is attached;
(j) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(k) any interest of a lessor under any equipment leases permitted
pursuant to clause (e) of Section 7.2.2;
(l) rights of set-off and bankers' liens arising under Section 4-210
of the U.C.C. upon deposits of cash made in the ordinary course of
business in deposit or disbursement accounts (other than in connection
with borrowed money) in favor of the banks and other depository
institutions that are maintaining such accounts;
(m) Liens encumbering cash, cash equivalents or securities that
secure Indebtedness in respect of reclamation bonds or letters of credit
(other than Letters of Credit) issued in lieu of or as security for
reclamation bonds, so long as each such reclamation bond or letter or
credit was obtained by the Borrower when the unused portion of the
Revolving Loan Commitment Amount was less than the lesser of (x)
$10,000,000 and (y) 25% of the Revolving Loan Commitment Amount; provided
that (i) the total amount available to be drawn under all such reclamation
bonds and letters of credit at any time does not exceed $10,000,000 and
(ii) the fair market value of the cash, cash equivalents and securities
subject to such Liens does not exceed at any time 105% of such total
amount available to be drawn; and
(n) other Liens (except Liens that encumber Mining Rights or rights
of the Borrower under Supply Contracts) securing Indebtedness in an
aggregate amount not to exceed $2,500,000 at any time outstanding.
SECTION 7.2.4. Financial Condition and Operations. The Borrower will not
permit to occur any of the events set forth below.
(a) The Borrower will not permit the Debt to EBITDA Ratio at any
time occurring during any period set forth below to be greater than the
ratio set forth opposite such period:
Debt to
Period EBITDA Ratio
- ----------------------------------------------------- ------------
Effective Date through (and including)
December 31, 2004 2.50:1.0
January 1, 2005 through (and including) June 30, 2005 2.25:1.0
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Debt to
Period EBITDA Ratio
- ----------------------------------------------------- ------------
July 1, 2005 and thereafter 2.00:1.0
(b) The Borrower will not permit the Debt Service Coverage Ratio as
of the last day of any Fiscal Quarter occurring during any period set
forth below to be less than the ratio set forth opposite such period:
Debt Service
Period Coverage Ratio
- -------------------------------------- --------------
Effective Date through (and including)
September 30, 2004 3.50:1.0
October 1, 2004 and thereafter 4.00:1.0
(c) The Borrower shall at all times while any Term Loans are
outstanding maintain Minimum Liquidity of at least the amount set forth
below opposite the principal amount of the Term Loans that are outstanding
as at such date:
Principal Amount of Term Loans Minimum
Outstanding Liquidity
- ------------------------------------ ------------
> or = $90,000,000 $ 45,000,000
> or = $60,000,000 and < $90,000,000 $ 30,000,000
> or = $30,000,000 and < $60,000,000 $ 15,000,000
< $30,000,000 $ 0
SECTION 7.2.5. Investments. The Borrower will not, and will not permit any
of its Subsidiaries to, purchase, make, incur, assume or permit to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified in
Item 7.2.5(a) of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication and subject to the proviso contained in
clause (e), Investments to the extent permitted as Indebtedness pursuant
to Section 7.2.2;
(d) Investments permitted as Capital Expenditures pursuant to
Section 7.2.7;
(e) Investments by way of contributions to capital or purchases of
equity (i) by the Borrower or any Guarantor that is a Wholly Owned
Subsidiary in other Guarantor that is a Wholly Owned Subsidiary; provided
that the aggregate amount of intercompany
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loans made pursuant to clause (f)(ii) of Section 7.2.2 and Investments
under this clause made by the Borrower and Guarantors in Foreign
Subsidiaries shall not exceed $1,000,000 at any time, or (ii) by any
Subsidiary in the Borrower; provided, however, that no interests of the
Borrower in either Mine or the J-M Reef and no assets of the Borrower
directly or indirectly involved in, or otherwise related to, the
construction or operation of the Mines may be used to make any such
Investment;
(f) Investments constituting (i) accounts receivable arising, (ii)
trade debt granted or (iii) deposits made in connection with, the sale or
purchase price of goods or services, in each case in the ordinary course
of business;
(g) Investments in respect of Permitted Acquisitions;
(h) Investments consisting of any deferred portion of the
consideration received by the Borrower or any Subsidiary in connection
with any Disposition permitted under Section 7.2.11;
(i) Investments consisting of loans to officers and employees in an
aggregate principal amount not to exceed $500,000 at any time outstanding;
(j) Investments in securities of account debtors received pursuant
to any plan of reorganization or similar plan upon the bankruptcy or
insolvency of such account debtors; and
(k) other Investments in an amount not to exceed $5,000,000 over the
term of this Agreement;
provided, however, that
(i) any Investment which when made complies with the
requirements of clause (a), (b) or (c) of the definition of the term
"Cash Equivalent Investment" may continue to be held notwithstanding
that such Investment if made thereafter would not comply with such
requirements; and
(ii) no Investment otherwise permitted by clause (d), (e), (g)
or (i) shall be permitted to be made if any Default has occurred and
is continuing or would result therefrom.
SECTION 7.2.6. Restricted Payments, etc. The Borrower will not, and will
not permit any of its Subsidiaries to, declare or make a Restricted Payment, or
make any deposit for any Restricted Payment, other than:
(a) dividends or distributions payable in common stock of the
Borrower (it being understood and agreed that only issuances of shares of
the common stock of the Borrower (whether treasury shares or otherwise)
are permitted pursuant to this clause);
(b) Restricted Payments made by Subsidiaries to the Borrower or to
Wholly Owned Subsidiaries; and
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(c) after April 1, 2005, Restricted Payments not otherwise permitted
under this Section 7.2.6, so long as (i) both before and after giving
effect to any such Restricted Payment, no Default shall have occurred and
be continuing and (ii) such Restricted Payment to be made pursuant to this
clause (c), when added to the aggregate amount of all Restricted Payments
made pursuant to this clause (c) during the Fiscal Year in which such
Restricted Payment is to be made, does not exceed 25% of the Excess Cash
Flow for the most recently ended Fiscal Year.
SECTION 7.2.7. Capital Expenditures, etc. The Borrower will not, and will
not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year, except (subject (in the case of Capitalized
Lease Liabilities) to clause (e) of Section 7.2.2) Capital Expenditures
(exclusive of interest capitalized in accordance with GAAP) which do not
aggregate in excess of the amount set forth below opposite such Fiscal Year:
Capital
Expenditure Amount
Fiscal Year (in millions)
- ----------- -------------
2004 $ 90.0
2005 $110.0
2006 $ 95.0
2007 $ 81.0
2008 $ 81.0
2009 $ 81.0
provided, however, that
(i) in the event Capital Expenditures described in any capital
budget for any Fiscal Year furnished pursuant to clause (j) of
Section 7.1.1 are not made or committed to be made by the Borrower
during such Fiscal Year, but will be made or committed to be made in
the immediately succeeding Fiscal Year (such Capital Expenditures,
"Deferred Capital Expenditures"), the Borrower may increase the
maximum amount of Capital Expenditures permitted in the immediately
succeeding Fiscal Year as specified opposite such Fiscal Year in the
table set forth above by an amount equal to such Deferred Capital
Expenditures, so long as (A) such Deferred Capital Expenditures do
not exceed $15,000,000 for such Fiscal Year, (B) such Deferred
Capital Expenditures, when added to the Capital Expenditures
actually made or committed to be made in the Fiscal Year in which
such Deferred Capital Expenditures were initially expected to be
made, would not exceed the maximum amount of Capital Expenditures
permitted in such Fiscal Year as specified opposite such Fiscal Year
in the table set forth above, (C) the Borrower furnishes to the
Administrative Agent an officer's certificate describing such
Deferred Capital Expenditures and the reason for the deferral of
such Capital Expenditures and stating that the deferral of such
Capital Expenditures will not adversely affect in any material
respect the Borrower's ability to meet the Mine Plans then in effect
and (D) the Administrative Agent is reasonably satisfied that the
contents of such certificate are true and correct; and
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(ii) (A) to the extent Capital Expenditures are made or
committed to be made in any Fiscal Year set forth above in an amount
less than the maximum amount permitted for such Fiscal Year as
specified opposite such Fiscal Year in the table set forth above
(after decreasing such maximum amount by the amount of Deferred
Capital Expenditures (if any) that the Borrower has indicated will
be made or committed to be made in the immediately succeeding Fiscal
Year), the Capital Expenditures which the Borrower or its
Subsidiaries may make or commit to make in the immediately
succeeding Fiscal Year shall be increased by 50% of the amount of
the permitted Capital Expenditures not so made or committed to be
made in the immediately preceding Fiscal Year (the "Carry-Forward
Amount");
(B) no further carry forward of such Carry-Forward Amount to
any other succeeding Fiscal Year shall be permitted; and
(C) no portion of any Carry-Forward Amount shall be used in
the applicable Fiscal Year until the entire amount of the Capital
Expenditures permitted to be made or committed to be made in such
Fiscal Year as provided in this Section shall have been used.
SECTION 7.2.8. No Prepayment of Subordinated Debt or Permitted Revenue
Bond Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to,
(a) make any payment or prepayment of principal of, or premium or
interest on, any Subordinated Debt or Permitted Revenue Bond Indebtedness
(i) other than the stated, scheduled date for such payment of principal
and interest set forth in the Subordinated Debt Documents governing such
Subordinated Debt or the Permitted Revenue Bond Documents, or (ii) in the
case of such Subordinated Debt, which would violate the terms of this
Agreement or the Subordinated Debt Documents governing such Subordinated
Debt;
(b) redeem, retire, purchase, defease, refinance or otherwise
acquire any Subordinated Debt or Permitted Revenue Bond Indebtedness; or
(c) make any deposit (including the payment of amounts into a
sinking fund or other similar fund) for any of the foregoing purposes;
provided, however, that the Borrower may prepay or redeem Permitted Revenue Bond
Indebtedness (or make a deposit for either of the foregoing purposes) upon the
occurrence of an Economic Development Revenue Bond Tax Event in the event the
Borrower has complied with Section 7.1.14 (provided that the inclusion of this
proviso herein shall not prevent the occurrence of an Event of Default under
Section 8.1.5).
SECTION 7.2.9. Stock of Subsidiaries. Except as permitted in clause (e) of
Section 7.2.5 above, the Borrower will not permit any of its Subsidiaries to (i)
issue any Capital Stock (whether for value or otherwise) to any Person other
than (in the case of Subsidiaries) to the Borrower or another Wholly Owned
Subsidiary or (ii) except to the extent permitted by Section 7.2.6, become
liable in respect of any obligation (contingent or otherwise) to purchase,
redeem, retire, acquire or make any other payment in respect of any shares of
Capital Stock of
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the Borrower or any Subsidiary or any option, warrant or other right to acquire
any such shares of Capital Stock.
SECTION 7.2.10. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other Person, or otherwise enter into or
consummate any Acquisition, except
(a) any Subsidiary may liquidate or dissolve voluntarily into, and
may merge with and into, the Borrower or any other Wholly Owned Subsidiary
(provided, however, that a Guarantor may only liquidate or dissolve into,
or merge with and into, the Borrower or another Guarantor that is a Wholly
Owned Subsidiary), and the assets or stock of any Subsidiary may be
purchased or otherwise acquired by the Borrower or any other Wholly Owned
Subsidiary (provided, however, that the assets or stock of any Guarantor
may only be purchased or otherwise acquired by the Borrower or another
Guarantor); provided, further, that in no event shall any Pledged
Subsidiary consolidate with or merge with and into any Subsidiary other
than another Pledged Subsidiary that is a Wholly Owned Subsidiary unless
after giving effect thereto, the Administrative Agent shall have a
perfected pledge of, and security interest in and to, at least the same
percentage of the issued and outstanding shares of Capital Stock of the
surviving Person as the Administrative Agent had immediately prior to such
merger or consolidation in form and substance satisfactory to the
Administrative Agent and its counsel, pursuant to such documentation and
opinions as shall be necessary in the opinion of the Administrative Agent
to create, perfect or maintain the collateral position of the
Administrative Agent and the Secured Parties therein as contemplated by
this Agreement; and
(b) the Borrower or any of its Subsidiaries may consummate a
Permitted Acquisition or an acquisition described in clause (g) of Section
7.2.11.
SECTION 7.2.11. Permitted Dispositions. The Borrower will not, and will
not permit any of its Subsidiaries to, Dispose of any of the Borrower's or such
Subsidiaries' assets (including accounts receivable and Capital Stock of
Subsidiaries) to any Person, including to a Subsidiary, in one transaction or
series of transactions unless (a) subject to clause (f) below, such Disposition
is of inventory or obsolete equipment sold in the ordinary course of business,
(b) (i) such Disposition is for not less than the fair market value of the
assets to be Disposed, (ii) the consideration received by the Borrower or
applicable Subsidiary consists of at least 80% cash and (iii) the net book value
of such assets, together with the net book value of all other assets Disposed of
pursuant to this clause (b) in the Fiscal Year during which such Disposition is
to occur, does not exceed $1,500,000 (provided that, immediately upon any such
Disposition the Debt to EBITDA Ratio shall be recalculated excluding the cash
earnings attributable to the assets so Disposed (excluding any gain or any
losses attributable to such Disposition)), (c) such Disposition is permitted by
clause (a) of Section 7.2.10, (d) such Disposition is a Permitted Lease
Disposition, (e) such Disposition is of Excluded Real Property or other real
property which the Borrower reasonably determines is immaterial to the present
and projected operations of either Mine and which property's fair market value,
when combined with the fair market value of all other immaterial real property
Disposed of pursuant to this clause (e) in the Fiscal Year during which such
Disposition is to occur, does not exceed $2,000,000, (f) such Disposition is of
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Norilsk Palladium or any other palladium acquired from Norilsk or any of its
Affiliates for consideration consisting of 100% cash upon delivery or within
thirty days thereafter, (g) (i) such Disposition is of real property which the
Borrower reasonably determines is immaterial to the present and projected
operations of either Mine, (ii) the consideration received by the Borrower or
applicable Subsidiary is real property of substantially similar value, (iii) the
Administrative Agent receives a first priority security interest in such real
property and (iv) the net book value of such real property, when combined with
the aggregate net book value of all other real property Disposed of pursuant to
this clause (g) in the Fiscal Year during which such Disposition is to occur,
does not exceed $2,000,000 or (h) such Disposition is pursuant to a transaction
permitted by Section 7.2.15; provided, however, that the Disposition of any of
the Borrower's interests in either Mine or the mineral interests in the J-M Reef
would not constitute a Disposition conducted in the Borrower's ordinary course
of business for purposes of this Section 7.2.11.
SECTION 7.2.12. Modification of Certain Agreements. The Borrower will not,
and will not permit any of its Subsidiaries to, consent to any amendment,
supplement, waiver or other modification of, or enter into any forbearance from
exercising any rights with respect to the terms or provisions contained in,
(a) the Subordinated Debt Documents, other than any amendment,
supplement, waiver or modification which (i) extends the date or reduces
the amount of any required repayment, prepayment or redemption of the
principal of the Subordinated Debt subject to such Subordinated Debt
Documents, (ii) reduces the rate or extends the date for payment of the
interest, premium (if any) or fees payable on the Subordinated Debt
subject to such Subordinated Debt Documents or (iii) makes the covenants,
events of default or remedies in such Subordinated Debt Documents less
restrictive on the Borrower;
(b) the Permitted Revenue Bond Documents, other than any amendment,
supplement, waiver or modification which (i) extends the date or reduces
the amount of any required repayment, prepayment or redemption of the
principal of the Permitted Revenue Bond Indebtedness or the Economic
Development Revenue Bonds, (ii) reduces the rate or extends the date for
payment of the interest, premium (if any) or fees payable on the Permitted
Revenue Bond Indebtedness or the Economic Development Revenue Bonds, or
(iii) makes the covenants, events of default, remedies or other terms in
such Permitted Revenue Bond Documents less restrictive on the Borrower and
the State of Montana;
(c) the Stockholders Agreement or the Good Neighbor Agreement, other
than any amendment, supplement, waiver or modification which could not
reasonably be expected to be adverse in any material respect to the
Lenders or which is consented to by the Administrative Agent; and
(d) any Material Supply Contracts, other than any amendment,
supplement waiver or modification that does not adversely affect the
Borrower or any other Obligor.
SECTION 7.2.13. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into or cause or permit to
exist any arrangement or
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contract (including for the purchase, lease or exchange of property or the
rendering of services) with any of its Affiliates (collectively, an "Affiliate
Transaction"), unless such arrangement or contract is on fair and reasonable
terms no less favorable to the Borrower or such Subsidiary than it could obtain
in an arm's-length transaction with a Person that is not an Affiliate; provided
that solely with respect to any such Affiliate Transaction between the Borrower
or any Subsidiary, on the one hand, and Norilsk, Norimet or any of their
respective Affiliates (other than the Borrower and its Subsidiaries), on the
other hand, the Borrower delivers to the Administrative Agent a resolution of
the Board of Directors of the Borrower set forth in an officer's certificate,
executed by an Authorized Officer of the Borrower, certifying that such
Affiliate Transaction complies with this Section 7.2.13 and has been approved by
a majority of the Public Directors (as defined in the Stockholders Agreement)
who do not have a direct interest in such arrangement or contract, and attaching
thereto a copy of any opinion as to the fairness of such Affiliate Transaction
from a financial point of view to the stockholders of the Borrower (other than
Norilsk, Norimet or any of their respective Affiliates) that is issued in
connection with such Affiliate Transaction.
SECTION 7.2.14. Restrictive Agreements, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any agreement prohibiting
(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired;
(b) the ability of any Obligor to amend or otherwise modify this
Agreement or any other Loan Document; or
(c) the ability of any Subsidiary to make any payments, directly or
indirectly, to the Borrower, including by way of dividends, advances,
repayments of loans, reimbursements of management and other intercompany
charges, expenses and accruals or other returns on investments.
The foregoing prohibitions shall not apply to restrictions contained (i) in this
Agreement and any other Loan Document, (ii) in the case of clause (a), any
agreement governing any Indebtedness permitted by clause (e) of Section 7.2.2 as
to the assets financed with the proceeds of such Indebtedness, or (iii) in the
case of clauses (a) and (c), any agreement of a Foreign Subsidiary governing the
Indebtedness permitted by clause (j)(ii) of Section 7.2.2 or any agreement
governing Indebtedness permitted by clause (l) of Section 7.2.2.
SECTION 7.2.15. Sale and Leaseback. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly enter into any
agreement or arrangement providing for the sale or transfer by it of any
property (now owned or hereafter acquired) to a Person and the subsequent lease
or rental of such property or other similar property from such Person, except
for the sale and leaseback of (i) equipment subject to a Permitted Lease
Disposition or (ii) other property to the extent the aggregate fair market value
of all such property so sold does not exceed $2,000,000 and the lease resulting
from such transaction is permitted under Section 7.2.2 or Section 7.2.18.
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SECTION 7.2.16. Commodity Hedging; Purchase of Platinum and Palladium.
The Borrower will not and will not permit any of its Subsidiaries to enter
into or be subject to
(a) any agreement or arrangement pursuant to which it and such
Subsidiaries are required to sell and physically deliver in any calendar
year (i) palladium in an aggregate amount equal to more than the sum of
(x) 100% of the Borrower's Annual Palladium Production for such calendar
year, plus (y) any Norilsk Palladium not yet subject to any contract or
arrangement relating to its Disposition, plus (z) any palladium acquired
during such calendar year under any Norilsk Metal Agreement or (ii)
platinum in an aggregate amount equal to more than 100% of the Borrower's
Annual Platinum Production, or
(b) (i) any Hedging Agreement (other than any agreement permitted
pursuant to the preceding clause (a)) relating to any commodity that would
require physical delivery of such commodity, (ii) any Hedging Agreement
(other than any agreement permitted pursuant to the preceding clause (a))
relating to any commodity if, upon the effective date of such Hedging
Agreement, the aggregate quantity of such commodity subject to Hedging
Agreements (other than any agreement permitted pursuant to the preceding
clause (a)) of the Borrower and its Subsidiaries would exceed 100% of the
projected production of the Borrower and its Subsidiaries of such
commodity during the period covered by such Hedging Agreements plus any
commodity acquired by the Borrower under any Norilsk Metal Agreement plus,
in the case of palladium, Norilsk Palladium, (iii) any Hedging Agreement
which, when taken together with all other Hedging Agreements entered into
by the Borrower or such Subsidiary concurrently with such Hedging
Agreement, has a negative marked-to-market value at the time such
agreement is effective and enforceable against the parties thereto or (iv)
any Hedging Agreement relating to any commodity pursuant to which the
obligations of the parties to such Hedging Agreement are determined,
subject to any "floor" or "cap" set forth in such Hedging Agreement, on
any basis other than a direct linear function of the price of such
commodity or an index customarily applicable to such commodity; provided
that this Section 7.2.16 shall not prohibit the Borrower or any Subsidiary
from entering into a Hedging Agreement with respect to Secondary Materials
or By-Product Metals so long as such Hedging Agreement is not entered into
for speculative purposes.
SECTION 7.2.17. Take or Pay Contracts. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into or be a party to any arrangement
for the purchase of materials, supplies, or other property or services if such
arrangement by its express terms requires that payment be made by the Borrower
or such Subsidiary regardless of whether such materials, supplies, or other
property or services are delivered or furnished to it except to the extent that
the maximum amount payable by the Borrower and its Subsidiaries during any
Fiscal Year for all such arrangements could not reasonably be expected to exceed
$10,000,000 or as otherwise consented to by the Administrative Agent. It is
understood and agreed that the inclusion of customary and reasonable liquidated
damages provisions in any Norilsk Metal Agreement that is consented to by the
Administrative Agent pursuant to Section 7.2.21, to the extent such provisions
would become operative in the event of a default by the Borrower in
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complying with its obligations under such Norilsk Palladium Agreement, shall not
be deemed to be a breach of this Section 7.2.17.
SECTION 7.2.18. Certain Lease Arrangements. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into or be a party to any
lease or similar arrangement with respect to any property (whether real,
personal or mixed) that is not a capital lease in accordance with GAAP, unless
the present value of all of the net "minimum future lease payments" (as defined
below) required to be made pursuant to such lease or similar arrangement
(discounted at the Discount Rate), when added to the present value of all of the
net "minimum future lease payments" to be made pursuant to all other such
arrangements which shall then be in effect (discounted at the Discount Rate),
does not exceed $15,000,000. For purposes of this Section 7.2.18, "minimum
future lease payments" means, with respect to any such lease or similar
arrangement, the sum of: the minimum rent required to be paid during the term of
such lease or arrangement, any payment or guarantee that the lessee is required
to make relating to the property subject thereto at the end of the term of such
lease or arrangement, including any amount stated to purchase such property, any
amount stated to make up any specified deficiency and any amount payable for
failure to renew or extend such lease or arrangement at the expiration of such
lease or arrangement.
SECTION 7.2.19. Contracts. The Borrower will not, and will not permit any
of its Subsidiaries enter into any Material Supply Contract or Additional Supply
Contract (other than the Initial Supply Contracts) which authorizes the Supply
Contract Counterparty to set off any claim against the Borrower or any of its
Subsidiaries under any other agreement by withholding payment for any platinum,
palladium or other minerals actually delivered without the prior written consent
from the Administrative Agent (in consultation with the Lenders).
SECTION 7.2.20. Accounting Changes. The Borrower will not, and will not
permit any of its Subsidiaries to, change its Fiscal Year from twelve
consecutive calendar months ending on December 31.
SECTION 7.2.21. Norilsk Metal Agreements; Additional Supply Contracts. The
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any Norilsk Metal Agreement or into any Additional Supply Contract, without the
prior written consent of the Administrative Agent, which consent shall not be
unreasonably withheld or delayed.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Article shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default in
the payment or prepayment when due of
(a) any principal of or interest on any Loan, or any Reimbursement
Obligation or any deposit of cash for collateral purposes pursuant to
Section 2.6.4; or
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(b) any fee described in Article III or any other monetary
Obligation, and such default shall continue unremedied for a period of
three days after such amount was due.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of any
Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. (a)
The Borrower shall default in the due performance or observance of any of its
obligations under clauses (d), (e), (g), (h) and (m) of Section 7.1.1 or Section
7.2 (provided that any Default under Section 7.2.1 in respect of the cessation
of any of the principal operating properties of the Borrower and its
Subsidiaries or of work with respect to any aspect of the Facilities that arises
from an inability of the Borrower to obtain a required governmental
authorization, approval, license, permit or consent or a required modification
to an existing governmental authorization, approval, license, permit or consent,
notwithstanding the Borrower's best efforts to do so, shall not constitute an
Event of Default unless such Default remains unremedied for more than 15 days)
or any Obligor shall default in the due performance or observance of its
obligations under Sections 4.2, 4.3, 4.4, or 4.9 of a Security Agreement.
(b) The Borrower shall default in the due performance or observance of any
of its obligations under clauses (a), (b), (c), (f), (i), (j), (k), (n) and (o)
of Section 7.1.1 or Section 7.1.8, 7.1.9, or 7.1.10 and such default shall
continue unremedied for a period of five days.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent or any
Lender.
SECTION 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) of the Borrower or any of its Subsidiaries or any
other Obligor having a principal amount, individually or in the aggregate, in
excess of $10,000,000 or a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness if the effect
of such default is to accelerate the maturity of any such Indebtedness or 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 or declare such Indebtedness to become due and
payable or to require such Indebtedness to be prepaid, redeemed, purchased or
defeased, or require an offer to purchase or defease such Indebtedness to be
made, prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money
in excess of $5,000,000 (exclusive of any amounts fully covered by insurance
(less any applicable deductible) and as to which the insurer has acknowledged
its responsibility to cover such judgment or order) shall be rendered against
the Borrower or any of its Subsidiaries or any other
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Obligor and such judgment shall not have been vacated or discharged or stayed or
bonded pending appeal within 30 days after the entry thereof.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension 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
expect to 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.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower, any of its
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness generally to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in the appointment of a
trustee, receiver, sequestrator or other custodian for any substantial
part of the property of any thereof, or make a general assignment for the
benefit of creditors;
(c) in the absence of such application, consent or acquiescence in
or permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for a substantial part of the property of
any thereof, and such trustee, receiver, sequestrator or other custodian
shall not be discharged within 60 days; provided that the Borrower, each
Subsidiary and each other Obligor hereby expressly authorizes each Secured
Party to appear in any court conducting any relevant proceeding during
such 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,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law or any dissolution, winding up or liquidation
proceeding, in respect thereof, and, if any such case or proceeding is not
commenced by the Borrower, any Subsidiary or any Obligor, such case or
proceeding shall be consented to or acquiesced in by the Borrower, such
Subsidiary or such Obligor, as the case may be, or shall result in the
entry of an order for relief or shall remain for 60 days undismissed;
provided that the Borrower, each Subsidiary and each Obligor hereby
expressly authorizes each Secured Party to appear in any court conducting
any such case or proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of the
foregoing.
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SECTION 8.1.10. Impairment of Security, etc. Any Loan Document or any Lien
granted thereunder shall (except in accordance with its terms), in whole or in
part, terminate, cease to be effective or cease to be the legally valid, binding
and enforceable obligation of any Obligor party thereto; any Obligor or any
other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien.
SECTION 8.1.11. Failure of Subordination. Unless otherwise waived or
consented to by the Administrative Agent, the Lenders and the Issuers in
writing, the subordination provisions relating to any Subordinated Debt (the
"Subordination Provisions") shall fail to be enforceable by the Administrative
Agent, the Lenders and the Issuers in accordance with the terms thereof, or the
monetary Obligations shall fail to constitute "Senior Debt" and "Designated
Senior Debt" (or similar terms) under the applicable Subordination Provisions;
or the Borrower or any of its Subsidiaries shall, directly or indirectly,
disavow or contest in any manner (i) the effectiveness, validity or
enforceability of any of the Subordination Provisions, (ii) that the
Subordination Provisions exist for the benefit of the Administrative Agent, the
Lenders and the Issuers or (iii) that all payments of principal of or premium
and interest on the Subordinated Debt, or realized from the liquidation of any
property of any Obligor, shall be subject to the applicable Subordination
Provisions.
SECTION 8.1.12. Non-Performance or Impairment of Material Supply
Contracts. (a) The occurrence of any failure by a Material Supply Contract
Counterparty to perform under any Material Supply Contract which continues
unremedied for more than 15 days beyond any applicable grace period set forth
therein (other than any failure to pay amounts thereunder which in the aggregate
for all Material Supply Contracts and all Material Supply Contract
Counterparties does not exceed $5,000,000); provided, however, that no such
failure to perform shall constitute an Event of Default if the Required Lenders
conclude that such failure will not be reasonably likely to have a material
adverse effect on the ability of the Borrower or any other Obligor to pay when
due any of its monetary Obligations.
(b) Any Material Supply Contract shall, in whole or in material part,
terminate, cease to be effective or cease to be the legally valid, binding and
enforceable obligation of any Person party thereto prior to its stated
termination date or any Material Supply Contract Counterparty party thereto
shall, directly or indirectly, contest such effectiveness, validity, binding
nature or enforceability by the filing of a claim, complaint or notice with an
arbitrator or any court or other Governmental Authority.
SECTION 8.1.13. Mine Plans; Proven and Probable Reserves. The Borrower
shall fail to own or control at any time (i) 12,500,000 tons of Proven Reserves
and Probable Reserves at the Mines (assuming a weighted average sales price for
palladium and platinum of not less than $400 per ounce (based on a weighting of
3.6 ounces of palladium for each ounce of platinum)) and (ii) as compared to
projected "Ore Tons" in the then current Mine Plans, (A) 18 months of Proven
Reserves (measured in tons) at the Nye Mine, (B) commencing on the Effective
Date, 13 months of Proven Reserves (measured in tons) at the East Boulder Mine,
(C) commencing December 31, 2004, 14 months of Proven Reserves (measured in
tons) at the East Boulder Mine, (D) commencing December 31, 2005, 15 months of
Proven Reserves (measured in tons) at the
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East Boulder Mine and (E) commencing December 31, 2006, 18 months of Proven
Reserves (measured in tons) at the East Boulder Mine, in each case, as reported
in the Borrower's then most current filing with the SEC or, if more current, the
then most current update furnished pursuant to clause (k) of Section 7.1.1.
SECTION 8.1.14. Regulatory Action; Expropriation. (a) Any Governmental
Authority shall take any action with respect to the Borrower, the Mines, the
operation thereof or the sale of the production therefrom (including any action
that would cause any license, permit, consent or other Mining Right to cease to
be in full force and effect or to be held to be illegal or invalid and including
any action (including the commencement of an action or proceeding) that results
or may result in the revocation, termination or substantial and adverse
modification of any such license, permit, consent or other Mining Right) which
would have a Material Adverse Effect, unless such action is set aside, dismissed
or withdrawn within 30 days of its institution or such action is being contested
in good faith and its effect is stayed during such contest.
(a) Any Governmental Authority or other Person purporting to be, or acting
as, any Governmental Authority condemns, nationalizes, seizes or otherwise
expropriates all or any substantial portion of the property or other assets
(including, unpatented mining and millsite claims) of the Borrower or of its
share capital or other ownership interests, or assumes custody or control of
such property or other assets or of the business or operations of the Borrower
to the extent such action (together with any prior or similar action) would
prevent the Borrower from carrying on its obligations under the Transaction
Documents, and such condemnation, nationalization, seizure, expropriation,
assumption or action is not withdrawn, rescinded, reversed, or in the case of
any such action with respect to property or assets, the same are not replaced
with equivalent property or assets within 30 days.
SECTION 8.1.15. Abandonment; Mining Rights. (a) The Borrower shall abandon
all or any significant portion of its interest in the Mines or surrender, cancel
or release, or suffer any termination or cancellation of any of its rights or
interests in the Mines, other than as specifically permitted by the Loan
Documents or other than as the Borrower and the Mining Consultant shall have
certified to the Administrative Agent and the Lenders is not required in
connection with the operation of the Facilities consistent in all material
respects with the Mine Plans.
(b) Any Person other than the Borrower shall acquire or assert a claim to
Mining Rights in respect of all or any portion of properties owned or claimed
under unpatented mining and millsite claims by the Borrower in connection with
the operation of the Facilities consistent in all material respects with the
Mine Plans, other than (i) Mining Rights affecting any portion of properties
that are not material to the operation of any Mine consistent in all material
respects with the Mine Plans and (ii) such rights or claims as the
Administrative Agent (in consultation with the Lenders) and the Mining
Consultant determine could not reasonably be expected to have a Material Adverse
Effect.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations (including
Reimbursement Obligations) shall automatically be and become immediately due and
payable, without notice or demand to any Person and the Borrower and
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each other Obligor shall automatically and immediately be obligated to deposit
with the Administrative Agent cash collateral in an amount equal to all Letter
of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable and/or the Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and 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 and
the Borrower shall automatically and immediately be obligated to deposit with
the Administrative Agent cash collateral in an amount equal to all Letter of
Credit Outstandings.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. Actions. Each Lender hereby appoints TD as its Administrative
Agent under and for purposes of this Agreement and each other Loan Document.
Each Lender authorizes the Administrative Agent to act on behalf of such Lender
under this Agreement, the Notes and each other Loan Document and, in the absence
of other written instructions from the Required Lenders received from time to
time by the Administrative Agent (with respect to which the Administrative Agent
agrees that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel in order to avoid contravention of applicable law),
to exercise such powers hereunder and thereunder as are specifically delegated
to or required of the Administrative Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto (including the
power to release any Lien granted to or held by the Administrative Agent for the
benefit of the Lenders with respect to any collateral constituting collateral
Disposed of in compliance with this Agreement and the other Loan Documents).
Each Lender hereby indemnifies (which indemnity shall survive any termination of
this Agreement) the Administrative Agent, pro rata according to such Lender's
proportionate Total Exposure Amount, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against, the Administrative Agent in any way relating to or arising out of this
Agreement and any other Loan Document, including reasonable attorneys' fees, to
the extent the Administrative Agent has not been reimbursed by the Borrower;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final proceeding
to have resulted from the Administrative Agent's gross negligence or wilful
misconduct. The Administrative 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 hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in the Administrative Agent's
determination, inadequate, the Administrative Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until
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such additional indemnity is given. Notwithstanding any provision to the
contrary contained elsewhere in any Loan Document, the Administrative Agent
shall not have any duties or responsibilities except those expressly set forth
herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into any Loan
Document or otherwise exist against the Administrative Agent.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 3:00
p.m., New York time, on the Business Day prior to a Borrowing that such Lender
will not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative 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 Administrative Agent, such Lender and the Borrower severally
agree to repay the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date the
Administrative Agent made such amount available to the Borrower to the date such
amount is repaid to the Administrative Agent, at the interest rate applicable at
the time to Loans comprising such Borrowing (in the case of the Borrower) and
(in the case of a Lender), at the Federal Funds Rate for the first two Business
Days after which such amount has not been repaid and, thereafter, at the
interest rate applicable to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative Agent, nor any of its
successors or assigns, 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, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower or
any other Obligor of its obligations hereunder or under any other Loan Document.
Any such inquiry which may be made by the Administrative Agent shall not
obligate it to make any further inquiry or to take any action. The
Administrative Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which the Administrative Agent believes to be genuine and to have been presented
by a proper Person.
SECTION 9.4. Successor. The Administrative Agent may resign as such at any
time upon at least 30 days' prior notice to the Borrower and all Lenders. If the
Administrative Agent at any time shall resign, the Required Lenders may appoint
another Lender as a successor Administrative Agent which shall thereupon become
the Administrative Agent hereunder. If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be one of the
Lenders or a commercial banking institution organized under the laws of the U.S.
(or any State thereof) or a U.S. branch
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or agency of a commercial banking institution, and having a combined capital and
surplus of at least $500,000,000; provided, however, that if, such retiring
Administrative Agent is unable to find a commercial banking institution which is
willing to accept such appointment and which meets the qualifications set forth
in above, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall assume and perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor as provided for above. Upon the acceptance
of any appointment as the Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall be entitled to
receive from the retiring Administrative Agent such documents of transfer and
assignment as such successor Administrative Agent may reasonably request, and
shall thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to its
benefit.
SECTION 9.5. Loans by the Administrative Agent. TD shall have the same
rights and powers with respect to (x) the Credit Extensions made by it or any of
its Affiliates and (y) the Notes held by it or any of its Affiliates as any
other Lender and may exercise the same as if it were not the Administrative
Agent hereunder. TD and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or Affiliate of the Borrower as if TD were not the Administrative Agent
hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Administrative Agent and each other Lender, and based on
such Lender's review of the financial information of the Borrower, this
Agreement, the other Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it will,
independently of the Administrative 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.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement or any other
Loan Document.
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SECTION 9.8. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telecopy, telegram, electronic mail or
cable) believed by it to be genuine and correct and to have been signed or sent
by or on behalf of the proper Person, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided for by this
Agreement or any other Loan Document, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder or
thereunder in accordance with instructions given by the Required Lenders or all
of the Lenders as is required in such circumstance, and such instructions of
such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. For purposes of applying amounts in accordance
with this Article, the Administrative Agent shall be entitled to rely upon any
Secured Party that has entered into a Lender Hedging Agreement with any Obligor
for a determination (which such Secured Party agrees to provide or cause to be
provided upon request of the Administrative Agent) of the outstanding Secured
Obligations owed to such Secured Party under any Lender Hedging Agreement.
Unless it has actual knowledge evidenced by way of written notice from any such
Secured Party and the Borrower to the contrary, the Administrative Agent, in
acting hereunder and each other Loan Document, shall be entitled to assume that
no Lender Hedging Agreements or Obligations in respect thereof are in existence
or outstanding between any Secured Party and any Obligor.
SECTION 9.9. Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 10.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Required Lenders or all Lenders.
SECTION 9.10. Application of Proceeds. After payment of all amounts then
due and payable to the Administrative Agent pursuant to (i) Sections 10.3 and
10.4, (ii) Section 6.3 of the Borrower Security Agreement and the Subsidiary
Security Agreements, (iii) Sections 5.10 and 5.13 of each Mortgage and (iv) each
similar provision under any other Loan Document, all cash proceeds received by
the Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral, as defined in the Borrower
Security Agreement, or of the Encumbered Property, as defined in the Mortgage,
shall be applied by the Administrative Agent against, all or any part of the
Obligations as follows:
(a) first, to the payment and satisfaction of all costs and expenses
incurred in connection with the collection of such proceeds;
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(b) second, to the equal and ratable payment of Obligations, in
accordance with each Secured Party's Obligations owing to it under or
pursuant to the Credit Agreement or any other Loan Document (including
Obligations under or pursuant to any Lender Hedging Agreements of which
the Administrative Agent has actual knowledge evidenced by written notice
satisfactory to the Administrative Agent from any such Secured Party or
the Borrower), applied
(i) first to fees and expense reimbursements then due to such
Secured Party,
(ii) then to interest (including interest accruing after the
commencement of a proceeding in bankruptcy, insolvency or similar
law, whether or not permitted as a claim under such law) and fees
due to such Secured Party,
(iii) then to pay or prepay principal of the Loans (and
Reimbursement Obligations) owing to, or to reduce the "credit
exposure" of, such Secured Party under such Lender Hedging
Agreements, as the case may be, and
(iv) then to pay the remaining outstanding Obligations and
cash collateralize all Letter of Credit Outstandings,
(c) third, without duplication of any amounts paid pursuant to
clause (b) above, to the Indemnified Parties to the extent of any amounts
owing pursuant to Section 10.4 of the Credit Agreement; and
(d) fourth, to be held as additional collateral security until the
payment in full in cash of all of the Obligations, the termination or
expiration of all Letters of Credit, the termination of all Lender Hedging
Agreements and the termination of all Commitments, after which such
remaining cash proceeds shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive such surplus.
For purposes of this Section, the "credit exposure" at any time of any
Secured Party with respect to a Lender Hedging Agreement to which such Secured
Party is a party shall be determined at such time in accordance with the
customary methods of calculating credit exposure under similar arrangements by
the counterparty to such arrangements, taking into account potential interest
rate movements and the respective termination provisions and notional principal
amount and term of such Lender Hedging Agreement.
SECTION 9.11. Sub-Agents. Without limiting any other rights that the
Administrative Agent may have, the Administrative Agent may appoint, upon notice
in writing to the Borrower, any Person to act as a sub-agent with such rights
(including the right to remuneration and indemnity), duties and obligations of
the Administrative Agent as may be conferred or imposed by the Administrative
Agent to or on such sub-agent in the applicable instrument of appointment;
provided that in performing such duties or obligations such sub-agent shall not
be held to any lesser standard of care than that which the Administrative Agent
would have otherwise been held. The Administrative Agent shall not be
responsible for the acts or omissions of any such sub-agent that it selects with
reasonable care. The possession of any collateral by any such sub-agent shall be
deemed to be possession by the Administrative Agent. The Administrative Agent
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may agree to pay such sub-agents reasonable fees, together with any reasonable
costs, charges, liabilities and expenses incurred by such sub-agents in
performing their functions as such sub-agents, and such fees, costs, charges,
liabilities and expenses shall for purposes of this Agreement and the other Loan
Documents be treated as costs, charges, liabilities and expenses incurred by the
Administrative Agent. The Borrower hereby agrees to promptly execute and deliver
all documents related to the appointment of a sub-agent that may be necessary,
or that the Administrative Agent may reasonably request, in order to effectuate
such appointment and allow any such sub-agent to perform its functions as a
sub-agent.
SECTION 9.12. Release of Collateral. Each Secured Party irrevocably
authorizes the Administrative Agent at its option and in its discretion, to
release any Guarantor from its obligations under the Subsidiary Guaranty and any
Lien granted to or held by or in favor of the Administrative Agent for the
benefit of the Secured Parties upon the occurrence of the Termination Date or in
connection with (i) collateral under the Loan Documents being Disposed of or
(ii) the release of any Guarantor so long as, in either the case of clause (i)
or (ii), such Disposition or release is otherwise permitted under the terms of a
Loan Document; provided, however, that the Administrative Agent may, prior to
any such release, request that the Borrower certify in a written notice
delivered to the Administrative Agent (with such detail as the Administrative
Agent may reasonably request) that the Disposition or release is made in
compliance with the terms of the Loan Documents. In addition, each Secured Party
irrevocably authorizes the Administrative Agent to subordinate any Lien granted
to or held by or in favor of the Administrative Agent for the benefit of the
Secured Parties to conservation easements granted by the Borrower and its
Subsidiaries pursuant to the requirements of the Good Neighbor Agreement, and to
execute and deliver all instruments and documents necessary to effect the same,
so long as (x) the Borrower has furnished to the Administrative Agent an
officer's certificate certifying (with such supporting documentation as the
Administrative Agent may reasonably require) that the granting of each such
conservation easement will not (1) adversely affect in any material respect the
Borrower's ability to meet any aspect of the Mine Plans then in effect or the
Borrower's present or future operations, (2) adversely affect in any material
respect the rights and remedies for any Secured Party under any Loan Document
and (3) adversely affect in any material respect the market value of the real
property interests that would be burdened by such easement and (y) the
Administrative Agent is reasonably satisfied that the contents of such officer's
certificate are true and correct. Upon request by the Administrative Agent at
any time, each Secured Party will confirm in writing the Administrative Agent's
authority to release any Guarantor or release or subordinate particular types or
items of collateral under the Loan Documents pursuant to this Section 9.12.
SECTION 9.13. Lender Hedging Agreements; Release of Liens. Notwithstanding
anything herein to the contrary or in any other Loan Document, the collateral
securing the Obligations hereunder shall secure obligations under Lender Hedging
Agreements solely to the extent that this Agreement remains in effect and the
collateral securing the Obligations and the Guarantors providing guarantees of
the Obligations have not otherwise been released pursuant to the terms hereof.
In furtherance of the foregoing, upon the satisfaction of the Obligations
(excluding obligations owing to counterparties under Lender Hedging Agreements
that are not then due) owed to the Lenders under this Agreement and the
termination of this Agreement, the security interests granted in the collateral
securing the Obligations and the guarantees provided
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by the Guarantors of the Obligations shall automatically terminate without
regard to obligations that may be owing under Lender Hedging Agreements.
SECTION 9.14. Documentation Agent. The Lender identified in this Agreement
as the "Documentation Agent" shall not have any right, power, obligation,
liability, responsibility or duty under this Agreement (or any other Loan
Document) other than those applicable to all Lenders as Lenders. Without
limiting the effect of any provision set forth in this Article IX, the Lender so
identified as the "Documentation Agent" shall not have or be deemed to have any
fiduciary relationship with any other Lender. Each Lender acknowledges that it
has not relied, and will not rely, on the Lender so identified as the
"Documentation Agent" in deciding to enter into this Agreement and or any Loan
Document to which it is a party or in taking or not taking action hereunder or
thereunder.
SECTION 9.15. Posting of Approved Electronic Communications. (a) The
Borrower hereby agrees, unless directed otherwise by the Administrative Agent,
that it will provide to the Administrative Agent all information, documents and
other materials that it is obligated to furnish to the Administrative Agent
pursuant to the Loan Documents, including all notices, requests, financial
statements, financial and other reports, certificates and other information
materials, but excluding any such communication that (i) is or relates to a
Borrowing Request, a Continuation/Conversion Notice or an Issuance Request, (ii)
relates to the payment of any principal or other amount due under this Agreement
prior to the scheduled date therefor, (iii) provides notice of any Default or
Event of Default under this Agreement or any other Loan Document or (iv) is
required to be delivered to satisfy any condition precedent to the effectiveness
of this Agreement and/or any Borrowing or other extension of credit hereunder
(all such non-excluded communications being referred to herein collectively as
"Communications"), by transmitting the Communications in an electronic/soft
medium that is properly identified in a format acceptable to the Administrative
Agent to Ian.Murray@tdsecurities.com, Jimmie.Bridwell@tdsecurities.com and
Steven.Silverstein@tdsecurities.com (or at such other electronic mail address as
directed by the Administrative Agent). In addition, the Borrower agrees to
continue to provide the Communications to the Administrative Agent in the manner
specified in the Loan Documents but only to the extent requested by the
Administrative Agent.
(b) The Borrower further agrees that the Administrative Agent may
make the Communications available to the Lenders by posting the
Communications on Intralinks or a substantially similar electronic
transmission system (the "Platform").
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE
INDEMNIFIED PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE
BY THE INDEMNIFIED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE
PLATFORM. IN NO EVENT SHALL THE INDEMNIFIED PARTIES HAVE ANY LIABILITY TO
THE
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BORROWER, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND,
INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE)
ARISING OUT OF THE BORROWER'S OR THE ADMINISTRATIVE AGENT'S TRANSMISSION
OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY
OF ANY INDEMNIFIED PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH
INDEMNIFIED PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address set forth
above shall constitute effective delivery of the Communications to the
Administrative Agent for purposes of the Loan Documents. Each Lender
agrees that receipt of notice to it (as provided in the next sentence)
specifying that the Communications have been posted to the Platform shall
constitute effective delivery of the Communications to such Lender for
purposes of the Loan Documents. Each Lender agrees to notify the
Administrative Agent in writing (including by electronic communication)
from time to time of such Lender's e-mail address to which the foregoing
notice may be sent by electronic transmission and that the foregoing
notice may be sent to such e-mail address.
(e) Nothing herein shall prejudice the right of the Administrative
Agent or any Lender to give any notice or other communication pursuant to
any Loan Document in any other manner specified in such Loan Document.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
(including the Schedules hereto (other than Schedule II hereto, which may be
modified in accordance with Section 10.2 or Section 10.11.1)) and of each other
Loan Document (other than Lender Hedging Agreements, Letters of Credit, the
Commitment Letter and the Fee Letter (which documents may be amended or
otherwise modified in accordance with the terms thereof)) may from time to time
be amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to in writing by the Borrower and (except, for the
avoidance of doubt, any modifications contemplated by Section 2.8) the Required
Lenders; provided, however, that no such amendment, modification or waiver
shall:
(a) modify this Section 10.1 without the consent of all Lenders;
(b) increase the aggregate amount of any Lender's Percentage of any
Commitment Amount, increase the aggregate amount of any Loans required to
be made by a Lender pursuant to its Commitments, extend the final
Commitment Termination Date of Credit Extensions made (or participated in)
by a Lender or reduce any fees described in Article III payable to any
Lender without the consent of such Lender;
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(c) (i) extend the due date for any scheduled repayment of principal
of any Lender's Loan, or reduce the principal amount of, prepayment
premium with respect to or rate of interest on any Lender's Loan or extend
the date on which interest, premium or fees are payable in respect of such
Lender's Loans, in each case, without the consent of such Lender (it being
understood and agreed, however, that any vote to rescind any acceleration
made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect
to the Loans and other Obligations shall only require the vote of the
Required Lenders (as defined in clause (b) of the definition thereof) or
(ii) amend, modify or waive provisions of clauses (d)(iii) or
(f) of Section 3.1.1 or modify the definition of "Excess Cash Flow"
or "Norilsk Palladium Proceeds", in any case, without the consent of
the Non-Defaulting Lenders holding at least 66 2/3% of the aggregate
principal amount of the Term Loans held by Non-Defaulting Lenders
then outstanding and the Non-Defaulting Lenders holding at least 66
2/3% of the Revolving Loan Commitment Amount held by Non-Defaulting
Lenders (or, following the Revolving Loan Commitment Termination
Date, the aggregate principal amount of the Revolving Loans held by
Non-Defaulting Lenders then outstanding plus the Letter of Credit
Outstandings (after giving effect to the participation of the
Non-Defaulting Lenders therein));
(d) amend, modify or waive provisions of clauses (a)(i), (c),
(d)(i), (d)(ii), (e), or (g) of Section 3.1.1 or clause (b) of Section
3.1.2 in any case in such a manner as to adversely affect the rights of
the Lenders participating in any particular Tranche differently from the
rights of Lenders participating in any other Tranche without the consent
of the Non-Defaulting Lenders holding at least a majority of the aggregate
principal amount of Loans held by Non-Defaulting Lenders then outstanding
(plus, in the case of Revolving Loan Lenders, the Letter of Credit
Outstandings (after giving effect to the participation of the
Non-Defaulting Lenders therein)) (or, in the case no Loans are then
outstanding with respect to a Tranche, the Commitments) under the Tranche
or Tranches adversely affected by such amendment, modification or waiver;
(e) reduce the percentage set forth in the definition of "Required
Lenders" or any requirement hereunder that any particular action be taken
by all Lenders without the consent of all Lenders;
(f) increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit;
(g) except as otherwise expressly provided in this Agreement or
another Loan Document, release (i) any Guarantor from its obligations
under a Guaranty (it being understood that the Administrative Agent may
release the Guaranty of a Subsidiary Guarantor in connection with a
Disposition of all, or substantially all, of the Capital Stock of such
Subsidiary Guarantor in a transaction permitted by Section 7.2.11) or (ii)
all or any substantial part of the collateral under the Loan Documents, in
either case without the consent of all Lenders; or
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(h) affect adversely the interests, rights or obligations of the
Administrative Agent (in its capacity as the Administrative Agent) or any
Issuer (in its capacity as Issuer), unless consented to by the
Administrative Agent or such Issuer, as the case may be;
provided further, however, that the conditions of Section 5.2.1 and 5.2.2 shall
not be deemed satisfied following any waiver of an existing Default or Event of
Default unless such waiver shall have been consented to by Lenders holding more
than 50% of the Revolving Loan Commitment Amount.
Notwithstanding the foregoing provisions of this Section 10.1,
(a) if the terms of any amendment to this Agreement provide that any
Tranche of Loans will be repaid in full and the Commitments of such
Tranche (if any) terminated as a condition to the effectiveness of such
amendment, then so long as the Loans and Commitments (if any) of such
Tranche are in fact repaid and terminated upon the effectiveness of such
amendment, such Loans and Commitments shall not be included in the
determination of the Required Lenders with respect to such amendment, and
(b) the Administrative Agent and the Borrower (or any Guarantor, as
applicable) may, without the consent of any other Lender, and after
providing notice thereof to the Lenders and the Issuer not later than five
days prior to the execution thereof, enter into any amendment, supplement
or other modification to this Agreement or any other Loan Document to
(i) add to the covenants or restrictions of the Borrower or
any Guarantor and make the occurrence of a breach of such additional
covenants or restrictions an Event of Default
(ii) have the Borrower or any Guarantor surrender any right or
power conferred upon it, and
(iii) cure any ambiguity or correct or supplement any
provision which may be defective or inconsistent with any other
provision; provided that no such amendment, supplement or
modification shall adversely affect the interests of any Lender or
any Issuer.
No failure or delay on the part of the Administrative Agent, any Issuer or
any Lender 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 or any other Obligor in any case
shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by the Administrative Agent, any
Issuer or any Lender 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.
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SECTION 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 or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto or on
Schedule II hereto or, in the case of a Lender that becomes a party hereto after
the date hereof, as set forth in the Lender Assignment Agreement pursuant to
which such Lender becomes a Lender hereunder or at such other address or
facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given
when received; any notice, if transmitted by facsimile, shall be deemed given
when the confirmation of transmission thereof is received by the transmitter.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay on
demand all reasonable expenses of the Administrative Agent (including the fees
and out-of-pocket expenses of counsel to the Administrative Agent and of local
counsel, if any, who may be retained by counsel to the Administrative Agent) in
connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of 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, whether or not the transactions
contemplated hereby are consummated; and
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements relating
thereto and all amendments, supplements, amendments and restatements and
other modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or the terms of any Loan
Document;
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document;
(d) any inspection, visit, review, examination, testing or
evaluation performed by the Mining Consultant for purposes of preparing
any reports, certificates or other information with respect to any aspect
of the Facilities; and
(e) the syndication of the Commitments and Loans.
The Borrower further agrees to pay, and to save each Secured Party harmless from
all liability for, any stamp or other taxes which may be payable in connection
with the execution or delivery of this Agreement, the Credit Extensions
hereunder, or the issuance of the Notes, Letters of Credit or any other Loan
Documents. The Borrower also agrees to reimburse each Secured Party upon demand
for all reasonable out-of-pocket expenses (including reasonable attorneys' fees
and legal expenses of counsel to each Secured Party) incurred by such Secured
Party in connection with (x) the negotiation of any restructuring or "work-out"
with the Borrower, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
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SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, the Borrower hereby
indemnifies, exonerates and holds the Administrative Agent, TDSI, each Secured
Party, and each of their respective successors and assigns, and each of their
respective officers, directors, employees and agents, and each other Person
controlling any of the foregoing within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Exchange Act
(collectively, the "Indemnified Parties") free and harmless from and against any
and all actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective of whether
any such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including reasonable attorneys' fees and disbursements and
agrees to pay all such costs, whether incurred in connection with actions
between or among the parties hereto or the parties hereto and third parties
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them 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 Credit Extension,
including all Indemnified Liabilities arising in connection with the
Transaction;
(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 the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to fund
any Credit Extension, provided that any such action is resolved in favor
of such Indemnified Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not an Indemnified Party is party thereto;
(d) 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 or any of its
Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof 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 or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Notes and any transfer of the
property of the Borrower or any of its Subsidiaries by foreclosure or by a
deed in lieu of foreclosure for any Lender's Environmental Liability,
regardless of whether caused by, or within the control of, the Borrower or
such Subsidiary);
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 (as
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determined by a court of competent jurisdiction in a final proceeding). In
furtherance of (and not in limitation of) the foregoing, the Borrower agrees to
reimburse each Indemnified Party for all legal or other expenses incurred in
connection with investigating, defending, or participating in an action or other
proceeding relating to an Indemnified Liability (whether or not such Indemnified
Party is a party to such action or proceeding), other than expenses incurred in
connection with an Indemnified Liability arising from such Indemnified Party's
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction). The Borrower and its successors and assigns hereby waive, release
and agree not to make any claim or bring any cost recovery action against, any
Secured Party under CERCLA or any state equivalent, or any similar law now
existing or hereafter enacted. It is expressly understood and agreed that to the
extent that any of such Persons is strictly liable under any Environmental Laws,
the Borrower's obligation to such Person under this indemnity shall likewise be
without regard to fault on the part of the Borrower with respect to the
violation or condition which results in liability of such Person. 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.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any assignment from one Lender to
another (in the case of Sections 10.3 and 10.4) and any termination of this
Agreement, the payment in full of all the Obligations and the termination of all
the Commitments. The representations and warranties made by the Borrower and
each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower, the Administrative Agent and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall have
been received by the Administrative Agent.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT (INCLUDING PROVISIONS WITH RESPECT TO INTEREST,
LOAN CHARGES AND COMMITMENT FEES), OTHER THAN THE LETTERS OF CREDIT, TO THE
EXTENT SPECIFIED BELOW AND
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SUCH OTHER LOAN DOCUMENTS, TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH THEREIN,
SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE
DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES (ISP98 -- INTERNATIONAL CHAMBER
OF COMMERCE PUBLICATION NUMBER 590 (THE "ISP RULES") AND, AS TO MATTER NOT
GOVERNED BY THE ISP RULES, THE LAWS OF THE STATE OF NEW YORK), EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY INTEREST OR MORTGAGE UNDER
A LOAN DOCUMENT, OR REMEDIES UNDER A LOAN DOCUMENT IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK. 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.
SECTION 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
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit and Commitments (including any Credit-Linked Deposit of such
Lender) to one or more other Persons in accordance with this the terms set forth
below.
SECTION 10.11.1. Assignments. Any Lender, pursuant to a Lender Assignment
Agreement,
(a) with the consent of the Borrower, the Administrative Agent and
(in the case of any assignment of Revolving Loan Commitments and related
participations in Letters of Credit and Letter of Credit Outstandings) the
Issuer (which consents shall not be unreasonably delayed or withheld and,
which consent, in the case of the Borrower, shall not be required during
the continuation of an Event of Default; provided, however, that, in the
case of any assignment of Revolving Loan Commitments and related
participations in Letters of Credit and Letter of Credit Outstandings, the
Administrative Agent, the Issuer and the Borrower may withhold such
consent in their sole discretion to an assignment to a Person not
satisfying the credit ratings set forth in Section 10.11.3) may at any
time assign and delegate to one or more Eligible Assignees; and
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(b) upon notice to the Borrower, the Administrative Agent and the
Issuer, upon the Administrative Agent's acknowledgment of a Lender
Assignment Agreement, may assign and delegate to any of its Affiliates or
Related Funds or to any other Lender or any of their Affiliates or Related
Funds (provided that, in the case of any assignment of Revolving Loan
Commitments and related participations in Letters of Credit and Letter of
Credit Outstandings under this clause (b), (x) the consent of the Issuer
shall be required in the event such assignment is to a Related Fund or a
Person not satisfying the credit ratings set forth in Section 10.11.3 and
(y) the consent of the Borrower shall be required (except during the
continuance of an Event of Default) in the event such assignment is to a
Related Fund)
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's Loans,
Commitments and participations in Letters of Credit and Letter of Credit
Outstandings (including any Credit-Linked Deposit of such Lender) (which
assignment and delegation shall be, as among Revolving Loan Commitments,
Credit-Linked Deposits and related participations in Letters of Credit and
Letter of Credit Outstandings, of a constant, and not a varying, percentage) in
a minimum aggregate amount equal to (i) the relevant Assignment Threshold or
(ii) the then remaining amount of such Lender's Loans and Commitments (provided
that no minimum amount shall be required in the case of any assignment between
two Lenders). Each Obligor and the Administrative Agent shall be entitled to
continue to deal solely and directly with a Lender in connection with the
interests so assigned and delegated to an Assignee Lender until
(i) notice of such assignment and delegation, together with
(A) payment instructions, (B) the Internal Revenue Service forms or
other statements contemplated or required to be delivered pursuant
to Section 4.6, if applicable, and (C) addresses and related
information with respect to such Assignee Lender, shall have been
delivered to the Borrower and the Administrative Agent by such
assignor Lender and such Assignee Lender;
(ii) such Assignee Lender shall have executed and delivered to
the Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent; and
(iii) the processing fees described below shall have been
paid; and
(iv) in the case of any assignment from a Revolving Loan
Lender that is not a Credit-Linked Revolving Loan Lender to an
Assignee Lender that is or who, after giving effect to such
assignment shall become, a Credit-Linked Revolving Loan Lender, such
Assignee Lender shall deposit cash into the Credit-Linked Deposit
Account in an amount equal to its RL Percentage (assuming
effectiveness of such proposed assignment) of the Stated Amount of
all Letters of Credit outstanding at such time (or, if such Assignee
Lender is an existing Credit-Linked Revolving Loan Lender, deposit
additional cash into the Credit-Linked Deposit Account such that
after giving effect to such deposit Assignee Lender shall have on
deposit in the Credit-Linked Deposit Account an amount equal to its
RL
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Percentage (assuming effectiveness of such proposed assignment) of
the Stated Amount of all Letters of Credit outstanding at such time.
From and after the date that the Administrative 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. Within five Business Days after its receipt of notice that the
Administrative Agent has received and accepted an executed Lender Assignment
Agreement (and if requested by the Assignee Lender), but subject to clause (i)
above, the Borrower shall execute and deliver to the Administrative Agent (for
delivery to the relevant Assignee Lender) a new Note evidencing such Assignee
Lender's assigned Loans and Commitments and, if the assignor Lender has retained
Loans and Commitments hereunder (and if requested by such Lender), a replacement
Note in the principal amount of the Loans and Commitments retained by the
assignor Lender hereunder (such Note to be in exchange for, but not in payment
of, the Note then held by such assignor Lender). Each such Note shall be dated
the date of the predecessor Note. The assignor Lender shall mark each
predecessor Note "exchanged" and deliver each of them to the Borrower. Accrued
interest on that part of each predecessor Note evidenced by a new Note, and
accrued fees, shall be paid as provided in the applicable Lender Assignment
Agreement. Accrued interest on that part of each predecessor Note evidenced by a
replacement Note shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the predecessor
Note and in this Agreement. Such assignor Lender or such Assignee Lender must
also pay a processing fee in the amount of $3,500 to the Administrative Agent
upon delivery of any Lender Assignment Agreement (provided that (i) such
processing fee shall not be required in the case such Assignee Lender is an
Affiliate of such assignor Lender or a Related Fund of such assignor Lender and
(ii) in the case of assignments on the same day by such assignor Lender to more
than one Related Fund of such assignor Lender, only a single $3,500 processing
fee shall be required for all such assignments by such assignor Lender to such
Related Funds for such day). Any attempted assignment and delegation not made in
accordance with this Section shall be null and void. Notwithstanding anything to
the contrary set forth above, any Lender may (without requesting the consent of
the Borrower or the Administrative Agent) pledge its Loans to a Federal Reserve
Bank in support of borrowings made by such Lender from such Federal Reserve Bank
and, in the case of any Lender that is a Fund, such Lender may, without the
consent of the Borrower or the Administrative Agent, pledge all or any portion
of its interests in the Loans (including any Notes or any other instrument
evidencing such Loans and its rights as a Lender under this Agreement in respect
thereof) to any trustee for, or any other representative of, holders of
obligations owed or securities issued by such Fund, as security for such
obligations or securities; provided that no such pledge (or related assignment)
shall release a Lender from any of its obligations hereunder or substitute any
such pledgee, assignee, trustee or representative as a party hereto and any
foreclosure or similar action by any such pledgee, assignee, trustee or
representative shall be subject to the provisions of this Section 10.11.1
concerning assignments.
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Any Credit-Linked Deposits held by the Administrative Agent in the
Credit-Linked Deposit Account that are assigned pursuant to this Section 10.11.1
shall, upon the consummation of such assignment to (i) an Assignee Lender that
is not, and upon giving effect to such assignment, will not become, a
Credit-Linked Revolving Loan Lender, be released to such Assignee Lender (or, if
agreed to by such Assignee Lender and the assigning Lender in writing, to the
assigning Lender), together with any accrued interest thereon and (ii) an
Assignee Lender that is, or upon giving effect to such assignment will become, a
Credit-Linked Revolving Lender, be retained by the Administrative Agent in the
Credit-Linked Deposit Account as such Assignee Lender's Credit-Linked Deposit.
SECTION 10.11.2. Participations. Any Lender may sell, without the consent
of the Borrower or the Administrative Agent, to one or more commercial banks or
other Persons (each of such commercial banks and other Persons 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 Commitments or its other obligations hereunder or under
any other Loan Document;
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Administrative 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 clause (a), (b), (f) or, to the extent requiring the
consent of each Lender, clause (c) of Section 10.1; and
(e) the Borrower shall not be required to pay any amount under this
Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes
of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 7.1.1, 10.3 and 10.4, shall be
considered a Lender. Each Participant shall only be indemnified for increased
costs pursuant to Section 4.3, 4.5 or 4.6 if and to the extent that the Lender
which sold such participating interest to such Participant concurrently is
entitled to make, and does make, a claim on the Borrower for such increased
costs. Any Lender that sells a participating interest in any Loan, Commitment or
other interest to a Participant under this Section shall indemnify and hold
harmless the Borrower and the Administrative Agent from and against any taxes,
penalties, interest or other costs or losses (including reasonable attorneys'
fees and expenses) incurred or payable by the Borrower or the Administrative
Agent as a result of the failure of the Borrower or the Administrative Agent to
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comply with its obligations to deduct or withhold any Taxes from any payments
made pursuant to this Agreement to such Lender or the Administrative Agent, as
the case may be, which Taxes would not have been incurred or payable if such
Participant had been a Non-U.S. Lender that was entitled to deliver to the
Borrower, the Administrative Agent or such Lender, and did in fact so deliver, a
duly completed and valid Form 1001 or 4224 (or applicable successor form)
entitling such Participant to receive payments under this Agreement without
deduction or withholding of any United States federal taxes.
SECTION 10.11.3. Revolving Loan Lender Downgrade; Lender Replacement. In
the event that
(a) a Revolving Loan Lender is then subject to a Lender Default,
(b) a Revolving Loan Lender's capital status, as determined by its
principal federal or state supervisor or other applicable governmental
agency or authority (if applicable), is rated at or below
"undercapitalized",
(c) S&P, Fitch Ratings, Inc. or Moody's shall, after the date that
any Person becomes a Revolving Loan Lender, downgrade the long-term
certificate of deposit ratings or long-term unsecured debt ratings of such
Revolving Loan Lender, and the resulting ratings shall be below BBB- ,
BBB- or Baa3, respectively, or the equivalent, or
(d) in the case of a Revolving Loan Lender that does not have a
long-term certificate of deposit rating provided by both S&P and Moody's
or a long-term unsecured debt rating provided by both S&P and Moody's,
such Revolving Loan Lender suffers a material adverse change in its
financial condition or a material impairment in its ability to honor its
obligation to fund any Loan or to fund its portion of any unreimbursed
payment pursuant to Section 2.6,
(other than during the continuance of an Event of Default) then, the Borrower
and each Issuer shall each have the right, but not the obligation, upon notice
to such Lender and the Administrative Agent, to replace such Lender with an
Eligible Assignee (a "Replacement Lender") acceptable to the Borrower and the
Administrative Agent (such consents not to be unreasonably withheld or delayed;
provided that no such consent shall be required if the Replacement Lender is an
existing Lender), and upon any such downgrading of any Lender's long-term
certificate of deposit rating or occurrence and continuance of a Lender Default,
each such Lender hereby agrees to transfer and assign (in accordance with
Section 10.11.1) all of its Commitments, Credit-Linked Deposits, Loans, Notes
and other rights and obligations under this Agreement and all other Loan
Documents (including Reimbursement Obligations) to such Replacement Lender;
provided, however, that (i) no such assignment shall be required if such
assignment would conflict with any applicable law or regulation, (ii) such
assignment shall be without recourse, representation or warranty (other than
that such Lender owns the Commitments, Loans and Notes being assigned, free and
clear of any Liens) and (iii) the purchase price paid by the Replacement Lender
shall be in the amount of such Lender's Loans and its Percentage of outstanding
Reimbursement Obligations, together with all accrued and unpaid interest and
fees in respect thereof, plus all other amounts (other than the amounts (if any)
demanded and unreimbursed under Sections 4.3, 4.5 and 4.6, which shall be paid
by the
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Borrower), owing to such Lender hereunder. Upon any such termination or
assignment, such Lender shall cease to be a party hereto but shall continue to
be entitled to the benefits of any provisions of this Agreement which by their
terms survive the termination of this Agreement.
SECTION 10.11.4. Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for the purpose of
this Section, to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitment, the Loans made by
each Lender and the Notes evidencing such Loans, and each repayment in respect
of the principal amount of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment Agreement
delivered to the Administrative Agent pursuant to this Section. Failure to make
any recordation, or any error in such recordation, shall not affect the
Borrower's or any other Obligor's Obligations in respect of such Loans or Notes.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall treat
each Person in whose name a Loan and related Note is registered as the owner
thereof for all purposes of this Agreement, notwithstanding notice or any
provision herein to the contrary. A Lender's Commitment and the Loans made
pursuant thereto and the Notes evidencing such Loans may be assigned or
otherwise transferred in whole or in part only by registration of such
assignment or transfer in the Register. Any assignment or transfer of a Lender's
Commitment or the Loans or the Notes evidencing such Loans made pursuant thereto
shall be registered in the Register only upon delivery to the Administrative
Agent of a Lender Assignment Agreement duly executed by the assignor thereof. No
assignment or transfer of a Lender's Commitment or the Loans made pursuant
thereto or the Notes evidencing such Loans shall be effective unless such
assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
SECTION 10.12. Other Transactions. Nothing contained herein shall preclude
the Administrative Agent, any Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Affiliates in which the Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. Independence of Covenants. All covenants contained in this
Agreement or any other Loan Document shall be given independent effect such
that, in the event a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or such
condition exists.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. 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 ADMINISTRATIVE AGENT, THE LENDERS,
ANY ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR THEREWITH SHALL BE BROUGHT
AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK, SITTING IN
THE COUNTY OF NEW
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YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. THE BORROWER HEREBY IRREVOCABLY APPOINTS CT CORPORATION
SYSTEM (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT 111 EIGHTH
AVENUE, 13TH FLOOR, NEW YORK, NEW YORK 10011, AS ITS AGENT TO RECEIVE, ON THE
BORROWER'S BEHALF AND ON BEHALF OF ITS PROPERTY, SERVICE OF COPIES OF THE
SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY
OF SUCH PROCESS TO THE BORROWER IN CARE OF THE PROCESS AGENT AT THE PROCESS
AGENT'S ABOVE ADDRESS, AND THE BORROWER HEREBY IRREVOCABLY AUTHORIZES AND
DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN
ALTERNATIVE METHOD OF SERVICE, THE BORROWER ALSO IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY AGREES THAT IN THE
EVENT THE PROCESS AGENT IS NO LONGER RESIDENT IN NEW YORK, NEW YORK, IT SHALL
APPOINT A SUCCESSOR PROCESS AGENT RESIDENT IN NEW YORK, NEW YORK, REASONABLY
ACCEPTABLE TO THE ADMINISTRATIVE AGENT, WHICH SUCCESSOR PROCESS AGENT SHALL
THEREAFTER BE THE PROCESS AGENT HEREUNDER. 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 TO THE FULLEST
EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, EACH
LENDER, EACH ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW 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
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ADMINISTRATIVE AGENT, SUCH LENDER, SUCH ISSUER OR THE BORROWER IN CONNECTION
HEREWITH OR THEREWITH. 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 ADMINISTRATIVE AGENT, EACH LENDER AND EACH ISSUER
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.16. Patriot Act Notification. The following notification is
provided to the Borrower pursuant to Section 326 of the Patriot Act.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help
the government fight the funding of terrorism and money laundering
activities, federal law requires all financial institutions to obtain,
verify, and record information that identifies each person or entity that
opens an account, including any deposit account, treasury management
account, loan, other extension of credit, or other financial services
product. What this means for the Borrower: When the Borrower opens an
account, the Administrative Agent and the Lenders will ask for the
Borrower's name, tax identification number, business address, and other
information that will allow the Administrative Agent and the Lenders to
identify the Borrower. The Administrative Agent and the Lenders may also
ask to see the Borrower's legal organization documents or other
identifying documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
STILLWATER MINING COMPANY,
as the Borrower
By:________________________________________
Name:
Title:
Address: Stillwater Mining Company
536 East Pike Avenue
P.O. Box 1330
Columbus, Montana 59019
Attention: Francis R. McAllister
Telephone: (406) 322-8700
Facsimile: (406) 322-8753
with a copy to:
Stillwater Mining Company
536 East Pike Avenue
P.O. Box 1330
Columbus, Montana 59019
Attention: Gregory A. Wing
Telephone: (406) 322-8700
Facsimile: (406) 322-8723
TORONTO DOMINION (TEXAS), INC., as the
Administrative Agent
By:_____________________________________
Name:
Title:
Address: Toronto Dominion (Texas), Inc.
c/o TD Securities (USA) Inc.
909 Fannin
Suite 1700
Houston, Texas 77010
Attention: Jim Bridwell
Telephone: (713) 653-8231
Facsimile: (713) 951-9921
with a copy to:
TD Securities (USA) Inc.
31 West 52nd Street
New York, New York 10019
Attention: William Hunter
Telephone: (212) 827-7565
Facsimile: (212) 827-7245
and
The Toronto-Dominion Bank,
Royal Trust Tower,
77 King Street West 18th Floor
Toronto, Ontario M5K 1A2
Attention: Ian Murray
Telephone: (416) 982-2296
Facsimile: (416) 307-3826
LENDERS:
TORONTO DOMINION (TEXAS), INC.
By:_____________________________________
Name:
Title: