EXHIBIT 10.7
EXECUTION COPY
U.S. $125,375,000
DOLLAR SUPPLY AGREEMENT,
dated as of September 28, 1994
among
THE BANK OF NOVA SCOTIA,
as the Consignor,
CERTAIN FINANCIAL INSTITUTIONS,
as the Suppliers,
THE BANK OF NOVA SCOTIA,
CHEMICAL BANK
and
THE BANK OF NEW YORK,
as the Co-Agents for the Suppliers,
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Suppliers.
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms . . . . . . . . . . . . . . . . . .
1.2. Use of Defined Terms . . . . . . . . . . . . . . .
1.3. Cross-References . . . . . . . . . . . . . . . . .
ARTICLE II
ADVANCE COMMITMENT AND MAKING OF ADVANCES
2.1. Advance Commitment . . . . . . . . . . . . . . . .
2.1.1. Advance Commitment . . . . . . . . . . . . . . .
2.1.2. Suppliers Not Permitted or Required to Make
Advances . . . . . . . . . . . . . . . . . . .
2.2. Reduction of Advance Commitment Amount . . . . .
2.3. Advance Procedures and Funding . . . . . . . . .
2.3.1. Continuation Elections . . . . . . . . . . . . .
2.3.2. Funding . . . . . . . . . . . . . . . . . . . .
2.4. Extension of Stated Maturity Date and Maturity
of Advances . . . . . . . . . . . . . . . . .
2.4.1. Request for Extension of Stated Maturity Date
and Maturity of Advances . . . . . . . . . . .
2.4.2. Consent to Extension of Stated Maturity Date
and Maturity of Advances . . . . . . . . . . .
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments . . . . . . . . . . .
3.1.1. Final Maturity . . . . . . . . . . . . . . . . .
3.1.2. Acceleration of Stated Maturity Date . . . . . .
3.1.3. Mandatory Prepayments of Advances . . . . . . .
3.2. Fees . . . . . . . . . . . . . . . . . . . . . .
3.2.1. Funding Fee . . . . . . . . . . . . . . . . . .
3.2.2. Commitment Fees . . . . . . . . . . . . . . . .
3.2.3. Post-Maturity Rates . . . . . . . . . . . . . .
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful . . . . . . . . . . .
4.2. Deposits Unavailable . . . . . . . . . . . . . .
4.3. Increased LIBO Rate Advance Costs, etc. . . . .
4.4. Funding Losses . . . . . . . . . . . . . . . . .
4.5. Increased Capital Costs . . . . . . . . . . . .
4.6. Taxes . . . . . . . . . . . . . . . . . . . . .
4.7. Payments, Computations, etc. . . . . . . . . . .
4.8. Sharing of Payments . . . . . . . . . . . . . .
4.9. Use of Proceeds . . . . . . . . . . . . . . . .
4.10. Replacement of Suppliers . . . . . . . . . . . .
4.11. Assignment to Administrative Agent . . . . . . .
ARTICLE V
CONDITIONS TO ADVANCES
5.1. Initial Advance . . . . . . . . . . . . . . . .
5.1.1. Resolutions, etc. . . . . . . . . . . . . . . .
5.1.2. Revolving Credit Agreement and Fee Consignment
Agreement Effectiveness . . . . . . . . . . .
5.1.3. Opinions of Counsel . . . . . . . . . . . . . .
5.1.4. Closing Fees, Expenses, etc. . . . . . . . . . .
5.2. All Advances . . . . . . . . . . . . . . . . . .
5.2.1. No Default, etc. . . . . . . . . . . . . . . . .
5.2.2. Advance Request . . . . . . . . . . . . . . . .
5.2.3. Satisfactory Legal Form . . . . . . . . . . . .
5.2.4. No Consignor Bankruptcy Event . . . . . . . . .
5.2.5. Advances Pursuant to Section 2.3.1 . . . . . . .
ARTICLE VI
EVENTS OF DEFAULT
6.1. Listing of Events of Default . . . . . . . . . .
6.1.1. Breach of Warranty . . . . . . . . . . . . . . .
6.1.2. Default Under Material Agreements, etc. . . . .
6.1.3. Bankruptcy, Insolvency, etc. . . . . . . . . . .
6.2. Action if Bankruptcy . . . . . . . . . . . . . .
6.3. Action if Other Event of Default . . . . . . . .
6.4. Consignor Bankruptcy Event . . . . . . . . . . .
ARTICLE VII
THE AGENTS
7.1. Actions . . . . . . . . . . . . . . . . . . . .
7.2. Funding Reliance, etc. . . . . . . . . . . . . .
7.3. Exculpation . . . . . . . . . . . . . . . . . .
7.4. Successor . . . . . . . . . . . . . . . . . . .
7.5. Advances by an Agent. . . . . . . . . . . . . .
7.6. Credit Decisions . . . . . . . . . . . . . . . .
7.7. Copies, etc. . . . . . . . . . . . . . . . . . .
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1. Waivers, Amendments, etc. . . . . . . . . . . .
8.2. Notices . . . . . . . . . . . . . . . . . . . .
8.3. Payment of Costs and Expenses . . . . . . . . .
8.4. Turn-Over of Certain Payments . . . . . . . . .
8.5. Survival . . . . . . . . . . . . . . . . . . . .
8.6. Severability . . . . . . . . . . . . . . . . . .
8.7. Headings . . . . . . . . . . . . . . . . . . . .
8.8. Execution in Counterparts, Effectiveness, etc. .
8.9. Governing Law; Entire Agreement . . . . . . . .
8.10. Successors and Assigns . . . . . . . . . . . . .
8.11. Sale and Transfer of Advances; Participation
in Advances . . . . . . . . . . . . . . . . .
8.11.1. Assignments . . . . . . . . . . . . . . . . . .
8.11.2. Participation . . . . . . . . . . . . . . . . .
8.12. Other Transactions . . . . . . . . . . . . . . .
8.13. Forum Selection and Consent to Jurisdiction . .
8.14. Waiver of Jury Trial . . . . . . . . . . . . . .
8.15. No Recourse . . . . . . . . . . . . . . . . . .
8.16. Waiver of Immunity; Judgment Currency . . . . .
EXHIBIT A - Form of Advance Request
EXHIBIT B - Form of Supplier Assignment Agreement
EXHIBIT C - Form of Continuation Notice
EXHIBIT D - Form of Extension Request
EXHIBIT E - Form of Suppliers' Agreement
EXHIBIT F - Form of Opinion of Senior Legal Counsel to
the Consignor
EXHIBIT G - Form of Opinion of New York Counsel to
the Consignor
DOLLAR SUPPLY AGREEMENT
THIS DOLLAR SUPPLY AGREEMENT, dated as of September 28,
1994, among THE BANK OF NOVA SCOTIA ("Scotiabank") as consignor
(in such capacity, the "Consignor"), the various financial
institutions as are or may become parties hereto (collectively,
the "Suppliers"), SCOTIABANK, CHEMICAL BANK ("Chemical") and THE
BANK OF NEW YORK ("BONY") as the co-agents (in such capacity, the
"Co-Agents") for the Suppliers, and Scotiabank, as administrative
agent (in such capacity, together with any successor appointed
pursuant to Section 7.4, the "Administrative Agent") for the
Suppliers,
W I T N E S S E T H:
WHEREAS, the Consignor and Handy & Harman, a New York
corporation (the "Consignee"), are parties to a Fee Consignment
Agreement dated as of the date hereof (as amended, supplemented,
amended and restated or otherwise modified pursuant to the terms
thereof, the "Fee Consignment Agreement"), pursuant to which the
Consignor will from time to time consign up to 110,000 troy
ounces of gold and up to 11,250,000 troy ounces of silver (such
gold and silver collectively referred to as the "Bullion"), all
in accordance with the terms and conditions thereof;
WHEREAS, the Suppliers will provide the Advance Commitment
pursuant to which each Supplier will make Advances of Dollars in
connection with consignments of Bullion by the Consignor to the
Consignee pursuant to the Fee Consignment Agreement; and
WHEREAS, the Suppliers are willing, on the terms and
conditions hereinafter set forth (including Article V), to make
such Advances and extend the Advance Commitment hereunder;
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):
"Administrative Agent" is defined in the preamble.
"Advances" is defined in Section 2.1.1.
"Advance Commitment" is defined in Section 2.1.1.
"Advance Commitment Amount" means $125,375,000, as such
amount may be reduced from time to time pursuant to Section 2.2.
"Advance Commitment Termination Date" means the earliest of
(a) the Stated Maturity Date;
(b) the date on which the Advance Commitment Amount is
terminated in full or reduced to zero pursuant to Section
2.2;
(c) the occurrence of any Default described in clauses
(a) through (d) of Section 6.1.3;
(d) the occurrence and continuance of any other Event
of Default and either
(i) the declaration of the Obligations of the
Consignee under the Fee Consignment Agreement to be due
and payable pursuant to Section 8.3 thereof, or
(ii) in the absence of such declaration, the
giving of notice by the Administrative Agent, acting at
the direction of the Required Suppliers, to the
Consignor and the Consignee that the Advance Commitment
has been terminated; and
(e) the occurrence of any Consignor Bankruptcy Event.
Upon the occurrence of any event described in clause (b), (c) or
(e) the Advance Commitment shall terminate automatically and
without further action.
"Advance Document" means this Agreement, each Advance
Request, each Extension Request, each Supplier Assignment
Agreement, the Suppliers' Agreement and each Continuation
Request.
"Advance Request" means a notice requesting Advances
executed and delivered by the Consignor, substantially in the
form of Exhibit A attached hereto.
"Affected Supplier" is defined in Section 4.3.
"Affiliate" is defined in the Revolving Credit Agreement.
"Agent" means, as the context may require, any Co-Agent or
the Administrative Agent.
"Agreement" means, on any date, this Dollar Supply Agreement
as originally in effect on the Effective Date and as thereafter
from time to time amended, supplemented, amended and restated or
otherwise modified and in effect on such date.
"Alternate Base Rate" means, on any date and with respect to
all Base Rate Advances, a fluctuating per annum rate equal to the
higher of
(a) the rate of interest most recently established by
Scotiabank at its Domestic Office as its base rate for
Dollar loans in the United States; and
(b) the Federal Funds Rate for such date plus 1/2 of
1%.
The Alternate Base Rate is not necessarily intended to be the
lowest rate of interest determined by Scotiabank in connection
with extensions of credit. Changes in Obligations accruing
interest at the Alternate Base Rate will take effect
simultaneously with each change in the Alternate Base Rate. The
Administrative Agent will give prompt notice to the Consignee and
the Suppliers of changes in the Alternate Base Rate.
"Assignee Supplier" is defined in Section 8.11.1.
"Authorized Officer" means those officers of the Consignee
whose signatures and incumbency shall have been certified to the
Administrative Agent and the Suppliers pursuant to Article V.
"Base Rate Advance" means each Advance pursuant to which the
Funding Fee accrues at a fluctuating rate determined by reference
to the Alternate Base Rate.
"BONY" is defined in the preamble.
"Bullion" is defined in the first recital.
"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, U.S.A. or Toronto, Ontario,
Canada and on which dealings in Dollars are carried on in
the London interbank market; and
(b) in the case of any location to which Bullion is to
be delivered or received, a day that transactions in Bullion
can be carried out at such location.
"Chemical" is defined in the preamble.
"Co-Agents" is defined in the preamble.
"Consignee" is defined in the first recital.
"Consignor" is defined in the preamble.
"Consignor Bankruptcy Event" means the Consignor shall
(a) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness 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 the Consignor or any property of any thereof,
or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for the
Consignor or for a substantial part of the property of any
thereof;
(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 of the Consignor; or
(e) take any action authorizing, or in furtherance of,
any of the foregoing.
"Continuation Date" is defined in clause (a) of Section
3.1.3.
"Continuation Notice" means a notice of continuation duly
executed by the Consignor pursuant to the terms hereof,
substantially in the form of Exhibit C attached hereto.
"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.
"Dollar" and the symbol "$" mean lawful money of the United
States.
"Domestic Office" means, relative to any Supplier, the
office of such Supplier designated as such below its signature
hereto or designated in the Supplier Assignment Agreement or such
other office of a Supplier (or any successor or assign of such
Supplier) within the United States as may be designated from time
to time by notice from such Supplier, as the case may be, to each
other party hereto.
"Effective Date" means the date this Agreement becomes
effective pursuant to Section 8.8.
"Environmental Law" is defined in the Revolving Credit
Agreement.
"Event of Default" is defined in Section 6.1.
"Extension Request" means an extension request duly executed
by the Consignor, substantially in the form of Exhibit D hereto.
"Federal Funds Rate" means, for any day, a fluctuating
interest rate per annum equal for such day to the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a
Business Day in the City of New York, for the next preceding
Business Day) by the Federal Reserve Bank of New York; provided,
however, that if such rate is not so published for any day which
is a Business Day in the City of New York, the rate for such day
shall be the average of the quotations for such day on such
transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Fee Consignment Agreement" is defined in the first recital.
"Fee Letter" is defined in the Revolving Credit Agreement.
"Funding Fee" is defined in Section 3.2.1.
"Funding Period" means, relative to any Advance, the period
beginning on (and including) the date on which such Advance is
made or continued as an Advance pursuant to Section 2.3 or 2.3.1
and shall end on (but exclude) the day which numerically
corresponds to such date one, two or three months (or such other
period, if agreed to by all the Suppliers) thereafter (or, if
such month has no numerically corresponding day, on the last
Business Day of such month), in each case equal to a
corresponding Consignment Period as requested by the Consignee
under the Fee Consignment Agreement as the Consignor will notify
to the Suppliers in its relevant notice pursuant to Section 2.3
or 2.3.1; provided, however, that
(a) Funding Periods commencing on the same date for
Advances in respect of the same consignment of Bullion shall
be of the same duration,
(b) if such Funding Period would otherwise end on a
day which is not a Business Day, such Funding Period shall
end on the next following Business Day; provided, however,
that if such next following Business Day is the first
Business Day of a calendar month, such Funding Period shall
end on the next preceding Business Day, and
(c) no Funding Period may end later than the Stated
Maturity Date.
No more than ten Funding Periods shall be in effect at any one
time.
"Hazardous Material" is defined in the Revolving Credit
Agreement.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Advance Document refer
to this Agreement or such other Advance Document, as the case may
be, as a whole and not to any particular Section, paragraph or
provision of this Agreement or such other Advance Document.
"including" means including without limiting the generality
of any description preceding such term, and, for purposes of this
Agreement and each other Advance 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 or to matters specifically
mentioned.
"Indemnified Liabilities" is defined in Section 8.4.
"Indemnified Parties" is defined in Section 8.4.
"LIBO Rate" is defined in Section 3.2.1.
"LIBO Rate Advance" means each Advance pursuant to which the
Funding Fee accrues at a rate determined by reference to the LIBO
Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"LIBOR Office" means, relative to any Supplier, the office
of such Supplier designated as such below its signature hereto or
designated in a Supplier Assignment Agreement or such other
office of a Supplier as designated from time to time by notice
from such Supplier to the Consignee and the Administrative Agent,
whether or not outside the United States, which shall be making
or maintaining LIBO Rate Advances.
"LIBOR Reserve Percentage" is defined in Section 3.2.1.
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property
to secure payment of a debt or performance of an obligation or
other priority or preferential arrangement of any kind or nature
whatsoever.
"Non-Consenting Supplier" is defined in clause (c) of
Section 2.4.2.
"Non-Recourse Joint Venture" is defined in the Revolving
Credit Agreement.
"Obligations" means all obligations (monetary or otherwise)
of the Consignee arising under or in respect of the Fee
Consignment Agreement.
"Organic Document" means, relative to the Consignee, its
certificate of incorporation, its by-laws and all shareholder
agreements, voting trusts and similar arrangements applicable to
any of its authorized shares of capital stock.
"Participant" is defined in Section 8.11.2.
"Percentage" means, relative to any Supplier, the percentage
set forth opposite its signature hereto or set forth in a
Supplier Assignment Agreement, as such percentage may be adjusted
from time to time pursuant to Supplier Assignment Agreement(s)
executed by such Supplier and its Assignee Supplier(s) and
delivered pursuant to Section 8.11.1.
"Person" means any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other
capacity.
"Quarterly Payment Date" means the last day of each March,
June, September and December or, if any such day is not a
Business Day, the next succeeding Business Day.
"Release" is defined in the Revolving Credit Agreement.
"Replacement Notice" is defined in Section 4.10.
"Required Suppliers" means, at any time, Suppliers whose
Percentages equal or exceed 51%.
"Revolving Credit Agreement" means the Revolving Credit
Agreement, dated as of the date hereof (as amended, supplemented,
amended and restated or otherwise modified from time to time
pursuant to the terms thereof), among the Consignee, certain
financial institutions from time to time parties thereto,
Chemical, BONY and Scotiabank as co-agents and Scotiabank, as the
administrative agent; provided that if the Revolving Credit
Agreement shall be refinanced or otherwise terminated and no
longer of force and effect at a time when this Agreement is still
in effect, then for purposes of this Agreement the "Revolving
Credit Agreement" shall mean the Revolving Credit Agreement, as
in effect immediately prior to the date of such refinancing or
termination.
"Scotiabank" is defined in the preamble.
"Short-Term Dollar Supply Agreement" means the Short-Term
Dollar Supply Agreement, dated as of the date hereof, among the
Consignor, the financial institutions from time to time parties
thereto, Scotiabank, BONY and Chemical, as co-agents and
Scotiabank, as administrative agent, as amended, supplemented,
amended and restated or otherwise modified from time to time
pursuant to the terms thereof.
"Short Term Revolving Credit Agreement" is defined in the
Revolving Credit Agreement.
"Stated Maturity Date" means September 28, 1997, as such
date may be extended from time to time pursuant to Section 2.4.
"Subject Supplier" is defined in Section 4.10.
"Subsidiary" means, with respect to any Person, any
corporation of which more than 50% of the outstanding capital
stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned
by such Person, by such Person and one or more other Subsidiaries
of such Person, or by one or more other Subsidiaries of such
Person.
"Substitute Rate" is defined in Section 3.2.1.
"Supplier Assignment Agreement" means a Supplier Assignment
Agreement substantially in the form of Exhibit B attached hereto.
"Suppliers" is defined in the preamble.
"Suppliers' Agreement" means the Suppliers' Agreement, dated
as of the date hereof (as amended, supplemented, amended and
restated or otherwise modified from time to time pursuant to the
terms thereof), among the Consignor, the Suppliers (as defined
herein and in the Short-Term Dollar Supply Agreement) and the
Administrative Agent, substantially in the form attached hereto
as Exhibit E.
"Taxes" is defined in Section 4.6.
"type" means, relative to any Advance, the portion thereof,
if any, being maintained as a Base Rate Advance or a LIBO Rate
Advance.
"United States" or "U.S." means the United States of
America, its fifty States and the District of Columbia.
"Valuation Date" is defined in clause (a) of Section 3.1.3.
SECTION 1.2. Use of Defined Terms. Unless otherwise
defined or the context otherwise requires,
(a) terms for which meanings are provided in this
Agreement shall have such meanings when used in any Advance
Document, notice and other communication delivered from time
to time in connection with this Agreement or any other
Advance Document; and
(b) terms used in this Agreement or any Advance
Document that are not defined herein (or in such Advance
Document) are used herein with the meanings set forth in the
Fee Consignment Agreement.
SECTION 1.3. Cross-References. Unless otherwise specified,
references in this Agreement and in each other Advance Document
to any Article or Section are references to such Article or
Section of this Agreement or such other Advance 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.
ARTICLE II
ADVANCE COMMITMENT AND MAKING OF ADVANCES
SECTION 2.1. Advance Commitment. On the terms and subject
to the conditions of this Agreement (including Article V), each
Supplier severally agrees to make Advances to the Consignor
pursuant to the Advance Commitment described in Section 2.1.1;
provided, that all payments and repayments of such Advances are
subject to the terms of Section 8.15.
SECTION 2.1.1. Advance Commitment. From time to time on
any Business Day occurring prior to the Advance Commitment
Termination Date, each Supplier will advance Dollars to the
Administrative Agent to be forwarded to the Consignor (relative
to such Supplier, its "Advances") equal to such Supplier's
Percentage of the aggregate amount of the Advances required
pursuant to Section 2.3 or Section 2.3.1 to be made on such day.
The commitment of each Supplier described in this Section 2.1.1
is herein referred to as its "Advance Commitment". On the terms
and subject to the conditions hereof, the Consignor may from time
to time prior to the Advance Commitment Termination Date have
Advances funded to it, prepay such Advances following the return
or purchase of Bullion (or other gold or silver) by the Consignee
under the Fee Consignment Agreement and have additional Advances
funded to it in connection with consignments of Bullion
thereunder.
SECTION 2.1.2. Suppliers Not Permitted or Required to Make
Advances. No Supplier shall be permitted or required to make any
Advance if, after giving effect thereto, the aggregate
outstanding principal amount of all Advances owing
(a) to all Suppliers would exceed the Advance
Commitment Amount; or
(b) to such Supplier would exceed such Supplier's
Percentage multiplied by the Advance Commitment Amount.
SECTION 2.2. Reduction of Advance Commitment Amount. Upon
the occurrence of a voluntary reduction in whole or in part of
the Commitment Amount pursuant to Section 2.2.1 of the Fee
Consignment Agreement, there shall also occur an automatic and
contemporaneous reduction in the Advance Commitment Amount
hereunder in an amount equal to the number of troy ounces of gold
or troy ounces of silver (or both, if applicable) by which the
Commitment Amount under the Fee Consignment Agreement is being
reduced, multiplied by $475 (in the case where a reduction in the
Commitment Amount is in respect of gold) and $6.50 (in the case
where a reduction in the Commitment Amount is in respect of
silver).
SECTION 2.3. Advance Procedures and Funding. Promptly
following receipt of a Consignment Request from the Consignee,
the Consignor agrees to deliver an Advance Request for a Funding
Period that is the same duration of the requested Consignment
Period to the Administrative Agent pursuant to which the
Consignor will request, on at least three but no more than five
Business Days' prior notice, that an Advance be made by all the
Suppliers in a minimum amount of $10,000,000, or, if less, in the
unused amount of the Advance Commitment Amount. In connection
with any consignment of Bullion under the Fee Consignment
Agreement, the Consignor shall not agree to a Consignment Period
of other than one, two or three months unless all the Suppliers
have first consented to such other Consignment Period. The
Administrative Agent agrees to promptly notify each Supplier of
the receipt of each Advance Request. The amount of the Advance
in respect of any given Consignment Request shall equal the
Dollar Value of gold or the Dollar Value of silver (or both, if
applicable as determined by the Consignor and notified to the
Administrative Agent) as in effect three Business Days prior to
the making of the Advance, multiplied by the number of troy
ounces of gold or troy ounces of silver (or both, if applicable)
that the Consignee is requesting be consigned to it by the
Consignor. On the terms and subject to the conditions of this
Agreement, each Advance shall be made on the Business Day
specified in such Advance Request. On or before 11:00 a.m.
(New York City time) on the Business Day that such Advance is to
be made, each Supplier shall deposit with the Administrative
Agent immediately available funds in an amount equal to such
Supplier's Percentage of the requested Advance. Such deposit
will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Suppliers. No
Supplier's obligation to make any Advance shall be affected by
any other Supplier's failure to make any Advance.
SECTION 2.3.1. Continuation Elections. Promptly following
the delivery of a Continuation/Return Notice to the Consignor in
accordance with Section 2.3.1 of the Fee Consignment Agreement in
which the Consignee is requesting that all or any portion of
previously consigned Bullion is to remain consigned to the
Consignee pursuant to the terms of the Fee Consignment Agreement,
the Consignor will deliver to the Administrative Agent a
Continuation Notice with respect to the previously funded
corresponding Advances that were made hereunder, pursuant to
which the Suppliers shall continue all, or any applicable portion
of, such Advances following the last day of a Funding Period with
respect thereto (subject to Sections 4.1, 4.2 and 4.3) as a LIBO
Rate Advance, and in the absence of delivery of a
Continuation/Return Notice with respect to any Advance at least
four but not more than five Business Days prior to the last day
of the then current Funding Period with respect thereto, such
Advance shall, on such last day, automatically continue for a
Funding Period of one month and, in such event, the Consignor
will deliver to the Administrative Agent a Continuation Notice
with respect to the previously funded corresponding Advances that
were made hereunder, pursuant to which the Suppliers shall,
subject to the satisfaction of the conditions set forth in
Section 5.2.5, continue all such Advances following the last day
of the then expiring Funding Period with respect thereto (subject
to Sections 4.1, 4.2 and 4.3) as a LIBO Rate Advance for a
Funding Period of one month. The amount of the Advances in
respect of any such Continuation Notice shall equal the Dollar
Value of gold or the Dollar Value of silver (or both, if
applicable) as in effect three Business Days prior to the
continuation of the Advance, multiplied by the number of troy
ounces of gold or troy ounces of silver (or both, if applicable)
that the Consignee has requested be continued under consignment
by the Consignor. To the extent such Dollar Value of gold or
Dollar Value of silver (as applicable) three Business Days prior
to the first day of the next succeeding Funding Period as
notified to the Administrative Agent and the Suppliers by the
Consignor
(a) exceeds that which was in effect three Business
Days prior to the date the relevant consignment was
originally made (or subsequently continued pursuant to
Section 2.3.1 of the Fee Consignment Agreement), then the
Suppliers shall (subject to Section 5.2.5) fund Advances to
the Administrative Agent on the first day of such next
succeeding Funding Period in an amount equal to such
Supplier's Percentage multiplied by such excess; and
(b) is less than that which was in effect three
Business Days prior to the date the relevant consignment was
originally made (or subsequently continued pursuant to
Section 2.3.1 of the Fee Consignment Agreement), then the
Consignor shall repay Advances to the Administrative Agent
on the last day of the then expiring Funding Period in an
amount equal to such difference pursuant to clause (a) of
Section 3.1.3.
SECTION 2.3.2. Funding. Each Supplier may, if it so
elects, fulfill its obligation to advance or continue LIBO Rate
Advances hereunder by causing one of its foreign branches or
affiliates (or an international banking facility created by such
Supplier) to advance or continue such LIBO Rate Advance;
provided, however, that such LIBO Rate Advance shall nonetheless
be deemed to have been made and to be held by such Supplier, and
the obligation to repay such LIBO Rate Advance shall nevertheless
be to such Supplier for the account of such foreign branch,
affiliate or international banking facility.
SECTION 2.4. Extension of Stated Maturity Date and Maturity
of Advances. Each of (i) the Stated Maturity Date and (ii) the
obligation, pursuant to Section 3.1.1, to make a mandatory
repayment of the outstanding principal amount of Advances on the
Stated Maturity Date, shall be subject to extension or
postponement, as the case may be, as set forth in this Section.
SECTION 2.4.1. Request for Extension of Stated Maturity
Date and Maturity of Advances. Any term or provision of this
Agreement to the contrary notwithstanding, promptly after the
delivery of a Consignment Extension Request by the Consignee to
the Consignor pursuant to the terms of the Fee Consignment
Agreement in respect of which the Consignor is willing to extend
the Stated Maturity Date, the Consignor shall, by delivery of a
duly completed Extension Request to each Supplier, irrevocably
request that each Supplier extend for a one year period the then
existing Stated Maturity Date.
SECTION 2.4.2. Consent to Extension of Stated Maturity Date
and Maturity of Advances.
(a) Each Supplier shall, within 30 days of receipt of
an Extension Request, notify the Administrative Agent
whether or not it consents to the extension set forth in
such Extension Request, such consent to be in the sole
discretion of such Supplier. If any Supplier does not so
notify the Administrative Agent of its decision within such
30 day period, such Supplier shall be deemed not to have
consented to such request.
(b) The Administrative Agent shall promptly notify the
Consignor and the Consignee whether the Suppliers have
consented to such request. If the Administrative Agent does
not so notify the Consignor within 35 days following the
date the Consignor receives the applicable Consignment
Extension Request from the Consignee, the Administrative
Agent shall be deemed to have notified the Consignor that
the Suppliers have not consented to such request.
(c) Each Supplier that elects not to provide a new
Advance Commitment upon the expiration of the then effective
Stated Maturity Date or that fails to so notify the
Administrative Agent of such consent (a "Non-Consenting
Supplier") hereby agrees that if, on or prior to the then
effective Stated Maturity Date, any other Supplier or other
financial institution acceptable to the Consignor and the
Consignee offers to purchase such Non-Consenting Supplier's
Percentage of the Advance Commitment (and other amounts and
commitments, as required pursuant to Section 8.11.1) for a
purchase price equal to the sum of all amounts then owing
with respect to the Advances and all other amounts accrued
for the account of such Non-Consenting Supplier, such Non-
Consenting Supplier will assign, sell and transfer on the
then effective Stated Maturity Date all of its right, title,
interest and obligations with respect to the foregoing to
such other Supplier or financial institution pursuant to the
terms of Section 8.11.1, and the fee payable pursuant to
Section 8.11.1 shall be payable by such Assignee Supplier.
(d) The Advances of any Non-Consenting Supplier that
were not purchased pursuant to clause (c) will mature and be
due and payable, and such Non-Consenting Supplier's Advance
Commitment will terminate, on the then scheduled Stated
Maturity Date. On each such date, the Advance Commitment
Amount will be automatically reduced by an amount equal to
the product of
(i) the sum of the Percentages of all Non-
Consenting Suppliers that were not purchased pursuant
to clause (c), and
(ii) the Advance Commitment Amount (whether used
or unused) on such Stated Maturity Date immediately
prior to such calculation.
(e) On the date that would have been the Stated
Maturity Date had the Advance Commitment not been extended
pursuant to the terms of this Section, the Percentages of
the remaining Suppliers which have consented to an extension
of their Advance Commitment hereunder shall be adjusted
accordingly by the Administrative Agent, based on such
Suppliers' pro rata share of the remaining Advance
Commitment Amount.
Notwithstanding anything to the contrary contained in this
Section, the Stated Maturity Date of those Suppliers consenting
to such an extension shall not be extended for an additional one
year period unless (i) Suppliers whose Percentages equal or
exceed 75% (after giving effect to the operation of clause (c))
have so consented to such extension, and (ii) the Consignor has
consented to a corresponding extension of the Consignment
Maturity Date pursuant to Section 2.4.2 of the Fee Consignment
Agreement.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. Repayments and
prepayments of Advances shall be made as set forth in this
Section 3.1. Each repayment or prepayment of any Advance made
pursuant to this Section 3.1 shall be without premium or penalty,
except as may be required to be paid (subject to Section 8.15)
pursuant to Section 4.4. No prepayment of principal of any
Advances shall cause a reduction in the Advance Commitment
Amount. Notwithstanding anything to the contrary in this
Agreement or any other Advance Document, the parties hereto
acknowledge and agree that (other than as required pursuant to
clauses (a) and (e) of Section 3.1.3) each repayment and
prepayment of Advances by the Consignor to the Suppliers, and all
liability of the Consignor to the Suppliers in respect of such
payments, shall be subject to the provisions of Section 8.15 and
shall only arise as against the Consignor to the extent (and only
to the extent) that Bullion (or other gold and/or silver, as
applicable) has been purchased by the Consignee from the
Consignor (and the Consignor shall have received in immediately
available funds the purchase price of such Bullion) or has been
returned to the Consignor by the Consignee as required on the
dates and in accordance with the terms of the Fee Consignment
Agreement; provided, that if the full amount of Bullion (or
other gold and/or silver, as applicable) is returned to the
Consignor, or the Consignor receives the entire amount of the
purchase price agreed to in respect of a purchase of such
Bullion, in each case on a date that is later than that which is
required pursuant to the terms of the Fee Consignment Agreement,
then the Consignor agrees that it will make the payments
otherwise required pursuant to Section 3.1.3 on the date such
Bullion was returned or purchased, as the case may be.
SECTION 3.1.1. Final Maturity. To the extent (but only to
the extent) that all then consigned Bullion (or other gold and/or
silver, as applicable) is returned from consignment to the
Consignor and/or purchased by the Consignee on such date in
accordance with the terms of the Fee Consignment Agreement, on
the Stated Maturity Date, the Consignor shall repay the unpaid
principal amount of all Advances upon the Stated Maturity Date.
If less than all previously consigned Bullion (or other gold
and/or silver, as applicable) is returned from consignment or is
purchased by the Consignee pursuant to the terms of the Fee
Consignment Agreement on the Stated Maturity Date, then as
between the Consignor and the Suppliers the terms of the
Suppliers' Agreement shall be applied to determine the principal
amount of the Advances that will be repaid to the Suppliers on
the Stated Maturity Date (provided, that the Consignee's failure
to return (or purchase, as applicable) all Bullion on the Stated
Maturity Date shall nevertheless constitute an Event of Default,
and any acceptance of any partial repayment or return of Bullion
(as applicable) shall not be deemed to be a waiver of any terms
or provisions of, or otherwise release the Consignee from
complete performance of its Obligations under, the Fee
Consignment Agreement).
SECTION 3.1.2. Acceleration of Stated Maturity Date. Upon
any acceleration of the Stated Maturity Date pursuant to Section
6.2 or Section 6.3 the Consignor shall, to the extent (and only
to the extent) that all previously consigned Bullion (or other
gold and/or silver, as applicable) has first been returned to it
from consignment by the Consignee, or has been purchased from the
Consignor by the Consignee pursuant to the terms of the Fee
Consignment Agreement, repay the outstanding amount of all
Advances on the date of such delivery or purchase of Bullion (or
other gold and/or silver). If, upon (or at any time after) the
acceleration of the Stated Maturity Date pursuant to Section 6.2
or Section 6.3, the Consignee shall return to or purchase from
the Consignor less than all previously consigned Bullion (or
other gold and/or silver, as applicable), then as between the
Consignor and the Suppliers the terms of the Suppliers' Agreement
shall be applied to determine the principal amount of the
Advances that will be repaid upon such return to or purchase from
the Consignor (provided, that the Consignee's failure to return
(or purchase, as applicable) all Bullion on the date of any
acceleration of the Stated Maturity Date shall nevertheless
constitute an Event of Default, and any acceptance of any partial
repayment or return of Bullion (as applicable) shall not be
deemed to be a waiver of any terms or provisions of, or otherwise
release the Consignee from complete performance of its
Obligations under, the Fee Consignment Agreement).
SECTION 3.1.3. Mandatory Prepayments of Advances. The
Consignor shall make mandatory prepayments of the Advances as
follows:
(a) to the extent that the Dollar Value of gold or the
Dollar Value of silver (or both, if applicable) on the date
that is three Business Days prior to the continuation of a
consignment of all or a portion of Bullion pursuant to
Section 2.3.1 of the Fee Consignment Agreement (such date
being referred to as the "Continuation Date") is less than
that which was in effect three Business Days prior to when
the relevant consignment (and the corresponding Funding
Period hereunder with respect to such consignment) was
originally made or, if applicable, subsequently continued
pursuant to Section 2.3.1 of the Fee Consignment Agreement
(such date being referred to as the "Valuation Date"), the
Consignor shall repay the Advances on the last day of such
then expiring Funding Period, pro rata to the Suppliers in
accordance with their respective Percentages, in an amount
equal to (i) the Dollar Value of gold or the Dollar Value of
silver (or both, if applicable) that existed on the
Valuation Date, multiplied (as applicable) by the number of
ounces of gold and/or the number of ounces of silver that
was consigned under the corresponding Consignment Period
minus (ii) the Dollar Value of gold or the Dollar Value of
silver (or both, if applicable) that existed on the
Continuation Date multiplied (as applicable) by the number
of ounces of gold and/or the number of ounces of silver to
be continued under consignment pursuant to the relevant
Continuation/Return Notice;
(b) on each date when Bullion is purchased from the
Consignor by the Consignee pursuant to the terms of
Section 2.3.3 of the Fee Consignment Agreement, regardless
of the price agreed to between the Consignor and the
Consignee, the Consignor shall make a mandatory prepayment
of Advances in an amount equal to the Dollar Value of gold
or the Dollar Value of silver (or both, if applicable) that
was in effect on the Valuation Date corresponding to the
applicable Consignment Period of the Bullion that is being
purchased, multiplied by the number of ounces of Bullion so
purchased;
(c) on the last day of each Consignment Period when
Bullion (or other gold or silver, as applicable) is returned
(and not continued under consignment) to the Consignor by
the Consignee, the Consignor shall make a mandatory
prepayment of Advances in an amount equal to the Dollar
Value of gold or the Dollar Value of silver (or both, if
applicable) that was in effect on the Valuation Date
corresponding to such applicable Consignment Period in
respect of which gold or silver is being returned to the
Consignor, multiplied by the number of ounces of gold and/or
silver actually returned to the Consignor;
(d) on each date and to the extent that the Consignee
has returned Bullion to the Consignor (or delivered to the
Consignor other gold or silver, as applicable) prior to the
last day of the related Consignment Period in accordance
with Section 3.1.2 of the Fee Consignment Agreement or
Bullion has been deemed to have been returned to the
Consignor pursuant to clause (b)(i) of Section 3 of the
Suppliers' Agreement, the Consignor shall make a mandatory
prepayment of Advances equal to the Dollar Value of gold or
the Dollar Value of silver (or both, if applicable) that was
in effect on the Valuation Date corresponding to such
Consignment Period, multiplied by the number of ounces of
gold and/or silver actually returned or deemed returned to
the Consignor; and
(e) on each date and to the extent that (i) any Bullion
with respect to which the Suppliers have made Advances is
lost or damaged prior to its delivery to either Plant (as
set forth in Section 2.3 of the Fee Consignment Agreement),
or (ii) any Bullion is returned to the Consignor by the
Consignee as not conforming with the quality of gold or
silver, as the case may be, as set forth in Section 2.3.2 of
the Fee Consignment Agreement, the Consignor shall make a
mandatory repayment of Advances in an amount equal to the
Dollar Value of gold or the Dollar Value of silver (or both,
if applicable) that was in effect on the Valuation Date
corresponding to the Consignment Period in respect of the
gold or silver that was lost or damaged prior to delivery to
either Plant or that was otherwise not in conformity with
the quality required pursuant to Section 2.3.2 of the Fee
Consignment Agreement, as the case may be, together with
interest which shall be the several obligation of, and
payable by, the Consignor on the amount of such Advances at
the rate customarily charged for inter-bank loans in the
U.S. for the first two days such Advances were outstanding,
and thereafter for each day such Advances are outstanding at
the rate that would have accrued on such Advances as a
Funding Fee if such Bullion had not been lost, damaged or
returned.
SECTION 3.2. Fees. Fees on the Advances shall accrue and
be payable in accordance with this Section 3.2 (and payment of
all such fees shall be subject to the provisions of Section
8.15).
SECTION 3.2.1. Funding Fee. To the extent that the
Consignor has first received the Consignment Fee from the
Consignee payable pursuant to Section 3.3.1 of the Fee
Consignment Agreement, the Consignor agrees to pay to the
Suppliers a funding fee (the "Funding Fee") on each Advance at a
rate equal to the sum of the LIBO Rate (Reserve Adjusted) for the
applicable Funding Period plus a margin of 1/2 of 1% per annum;
provided, however, that if, as a result of the occurrence of any
event described in Section 4.2, Advances are maintained at the
Alternate Base Rate, then the Funding Fee payable by the
Consignor shall equal the rate which Scotiabank notifies the
Consignee, the Administrative Agent and the Suppliers is the rate
at which Dollar deposits in immediately available funds are
offered to it in an interbank market other than the London
interbank eurodollar market, as reasonably selected by
Scotiabank, including all basic, emergency, supplemental,
marginal and other reserves specified under regulations issued
from time to time by the F.R.S. Board and then applicable to
assets or liabilities of the nature selected by Scotiabank having
a term approximately equal or comparable to applicable Funding
Period (the "Substitute Rate"), plus a margin of 1/2 of 1% per
annum. If only a percentage of the total Consignment Fee is paid
to the Consignor under Section 3.3.1 of the Fee Consignment
Agreement, then the Consignor agrees to pay over to the
Administrative Agent a Funding Fee in an amount equal to the
total amount of the Funding Fee otherwise due multiplied by the
percentage of the Consignment Fee so received by the Consignor
(but the Consignee's failure to pay the entire amount of the
Consignment Fee shall constitute an Event of Default, and the
acceptance of any partial payment of the Consignment Fee shall
not be deemed to be a waiver of, or otherwise release the
Consignee from complete performance of its Obligations under, the
Fee Consignment Agreement).
The "LIBO Rate (Reserve Adjusted)" means, relative to any
Advance to be made, continued or maintained as, or converted
into, a LIBO Rate Advance for any Funding 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 Funding Period for
LIBO Rate Advances will be determined by the Administrative Agent
on the basis of the LIBOR Reserve Percentage in effect on, and
the applicable rates furnished to and received by the
Administrative Agent from Scotiabank two Business Days before,
the first day of such Funding Period.
"LIBO Rate" shall equal the average (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates per annum at
which Dollar deposits in immediately available funds are offered
to Scotiabank's LIBOR Office in the London interbank market as at
or about 11:00 a.m. (London time), two Business Days prior to the
beginning of such Funding Period for delivery on the first day of
such Funding Period, and in an amount approximately equal to the
amount of Scotiabank's LIBO Rate Advance, for a period
approximately equal to such Funding Period.
"LIBOR Reserve Percentage" means the reserve percentage
(expressed as a decimal) equal to the average maximum reserve
requirements of the Suppliers (without giving effect to the
branch or agency in which such Supplier funds such Advances)
(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 and including
"Eurocurrency Liabilities", as currently defined in Regulation D
of the F.R.S. Board, having a term approximately equal or
comparable to such Funding Period.
For so long as any Advances of a Supplier are maintained as
Base Rate Advances as a result of the occurrence of any event
described in Section 4.1 or 4.3, the Consignor shall (subject in
all respects to the terms of this Agreement) continue to pay such
Supplier the Funding Fee, at the LIBO Rate (Reserve Adjusted) for
the applicable Funding Period plus a margin of 1/2 of 1% per
annum, and to the extent (and only to the extent) that the
Consignor has first received from the Consignee all or a portion
of the fees payable pursuant to clause (b) of Section 3.3.1 of
the Fee Consignment Agreement, the Consignor agrees to also pay
over (to the extent actually received) a fee to such Supplier on
such Advances at a rate equal to the positive difference, if any,
between (x) the Alternate Base Rate then in effect and (y) the
LIBO Rate (Reserve Adjusted) for the Funding Period in respect of
such Advances plus 1/2 of 1% per annum, with all such amounts
being due and payable on the dates the Funding Fee is otherwise
payable hereunder. For so long as any Advances of the Suppliers
are maintained as Base Rate Advances as a result of the
occurrence of any event described in Section 4.2, the Consignor
shall (subject in all respects to the terms of this Agreement)
continue to pay each Supplier the Funding Fee, at the Substitute
Rate for the applicable Funding Period plus a margin of 1/2 of 1%
per annum, and to the extent (and only to the extent) that the
Consignor has first received from the Consignee all or a portion
of the fees payable pursuant to clause (b) of Section 3.3.1 of
the Fee Consignment Agreement, the Consignor agrees to also pay
over (to the extent actually received) a fee to such Supplier on
such Advances at a rate equal to the positive difference, if any,
between (x) the Alternate Base Rate then in effect and (y) the
Substitute Rate for the Funding Period in respect of such
Advances plus 1/2 of 1% per annum, with all such amounts being
due and payable on the dates the Funding Fee is otherwise payable
hereunder. The Funding Fee shall accrue on all Advances from and
including the first day of the applicable Funding Period to (but
not including) the last day of such Funding Period. To the
extent received, the Funding Fee will be paid by the Consignor to
the Administrative Agent for the account of the Suppliers in
arrears on (a) the Stated Maturity Date, (b) on the last day of
each Funding Period (or on each three-month anniversary of a
Funding Period, for Funding Periods in excess of 3 months), and
(c) on the date of any reduction in the Advance Commitment Amount
resulting from a reduction in the Commitment Amount pursuant to
Section 2.2.1 or 2.2.2 of the Fee Consignment Agreement, in an
amount equal to any accrued Funding Fee on that portion of the
Commitment Amount being reduced.
SECTION 3.2.2. Commitment Fees. To the extent (and only to
the extent) the Consignor first receives all or a portion of the
fees payable pursuant to Section 3.3.2 of the Fee Consignment
Agreement, the Consignor agrees (subject to the terms of this
Agreement) to pay over (to the extent so received) to the
Administrative Agent, for the account of the Suppliers, a
commitment fee equal to 1/5 of 1% per annum multiplied by the
product of (a) the difference between (i) the average daily
number of ounces of gold or silver committed to be consigned
under the Fee Consignment Agreement (based on the Dollar Value of
gold equalling $475 per ounce and the Dollar Value of silver
equalling $6.50 per ounce) during the relevant period and
(ii) the average daily number of ounces of gold or silver, as the
case may be, actually consigned under the Fee Consignment
Agreement during the relevant period and (b) $475 (in the case of
gold) and $6.50 (in the case of silver). The commitment fee is
payable in arrears on each Quarterly Payment Date and on the
Advance Commitment Termination Date.
SECTION 3.2.3. Post-Maturity Rates. After the date any
amount (other than the Advances) payable by the Consignor shall
have become due and payable (or would become due and payable had
a corresponding payment been made by the Consignee) hereunder, in
each case as a result of a breach by the Consignee of its
obligations under any Fee Consignment Document, the Consignor
agrees, subject to the provisions of Section 8.15, to pay over to
the Administrative Agent any interest it receives from the
Consignee (after as well as before judgment) on such amounts at a
rate equal to the Alternate Base Rate plus a margin of 2% per
annum. In addition, to the extent that the Consignee fails to
return (or purchase) any Bullion on the dates and in the manner
required pursuant to the terms of the Fee Consignment Agreement,
the Consignor agrees (subject to the terms hereof) to the extent
that it has first received the ABR Fee from the Consignee payable
pursuant to the second sentence of Section 3.2 of the Fee
Consignment Agreement that it shall pay to the Suppliers on the
date received instead of the Funding Fee an amount equal to the
Alternate Base Rate plus a margin of 2% per annum on the
principal amount of the Advances due but unpaid. If only a
percentage of the total ABR Fee is paid to the Consignor pursuant
to the second sentence of Section 3.2 of the Fee Consignment
Agreement, then the Consignor agrees to pay over to the
Administrative Agent an amount equal to the Alternate Base Rate
plus a margin of 2% per annum on the principal amount of the
Advances due but unpaid multiplied by the percentage of such ABR
Fee so received by the Consignor (but the Consignee's failure to
pay the entire amount of such ABR Fee shall nevertheless
constitute an Event of Default, and the acceptance of any partial
payment of any such ABR Fee shall not be deemed to be a waiver
of, or otherwise release the Consignee from complete performance
of its Obligations under, the Fee Consignment Agreement).
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Supplier
shall determine (which determination shall, upon notice thereof
to the Administrative Agent (which notice the Administrative
Agent agrees it will as promptly as practicable forward to the
Consignor and the Consignee), absent manifest error, be prima
facie evidence of the facts stated therein) that the introduction
of or any change in or in the interpretation of any law makes it
unlawful, or any central bank or other governmental authority
asserts that it is unlawful, for such Supplier to make, continue
or maintain any Advance as, or to convert any Advance into, a
LIBO Rate Advance, the obligations of such Supplier to make,
continue, maintain or convert any such Advances shall, upon such
determination, forthwith be suspended until such Supplier shall
notify the Administrative Agent that the circumstances causing
such suspension no longer exist (which notification such Supplier
agrees to give as promptly as practicable when such circumstances
no longer exist), and all LIBO Rate Advances of such Supplier
shall automatically convert into Base Rate Advances at the end of
the then current Funding Periods with respect thereto or sooner,
if required by such law or assertion. Upon any Advances being
made, continued or maintained as, or converted into, Base Rate
Advances by a Supplier (a) the Consignor shall (subject to the
terms of this Agreement) continue to pay a Funding Fee thereon at
a rate equal to the LIBO Rate (Reserve Adjusted) plus a margin of
1/2 of 1% per annum, and (b) the Consignor, to the extent (and
only to the extent) that the Consignor has first received the
fees payable pursuant to clause (b) of Section 3.3.1 of the Fee
Consignment Agreement, agrees (subject to the terms of this
Agreement) to pay over to such Supplier on the dates the Funding
Fee is due and payable pursuant to Section 3.2.1 a fee on such
Advances at a rate equal to the positive difference, if any,
between (x) the Alternate Base Rate from time to time in effect
and (y) the LIBO Rate (Reserve Adjusted) for the Funding Period
in respect of such Advances plus a margin of 1/2 of 1% per annum.
SECTION 4.2. Deposits Unavailable. If the Administrative
Agent shall have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Funding Period are not available to Scotiabank in
its relevant market; or
(b) by reason of circumstances affecting Scotiabank or
the relevant market, adequate means do not exist for
ascertaining the rate applicable hereunder to LIBO Rate
Advances,
then, upon notice from the Administrative Agent to the Consignor,
the Consignee and the Suppliers, the obligations of all Suppliers
under Section 2.3 and Section 2.3.1 to make or continue any
Advances as, or to convert any Advances into, LIBO Rate Advances
shall forthwith be suspended until Scotiabank shall notify the
Consignor, the Consignee and the Suppliers that the circumstances
causing such suspension no longer exist, and such Advances shall
thereafter be maintained as Base Rate Advances. Upon any
Advances being maintained as Base Rate Advances pursuant to the
terms of this Section, (a) the Consignor shall (subject to the
terms of this Agreement) continue to pay a Funding Fee thereon at
the Substitute Rate plus a margin of 1/2 of 1% per annum, and (b)
the Consignor, to the extent (and only to the extent) that the
Consignor has first received the fees payable pursuant to clause
(b) Section 3.3.1 of the Fee Consignment Agreement, agrees to pay
over to each Supplier on the dates the Funding Fee is due and
payable pursuant to Section 3.2.1 a fee on such Advances at a
rate equal to the positive difference, if any, between (x) the
Alternate Base Rate from time to time in effect and (y) the
Substitute Rate for the Funding Period in respect of such
Advances plus a margin of 1/2 of 1% per annum.
SECTION 4.3. Increased LIBO Rate Advance Costs, etc.
Subject to the terms of this Agreement, the Consignor agrees to
pay over to each Supplier (to the extent (and only to the extent)
first received by the Consignor) any increase in the cost to such
Supplier of, or any reduction in the amount of any sum receivable
by such Supplier in respect of, making, continuing or maintaining
(or of its obligation to make, continue or maintain) any Advances
as, or of converting (or of its obligation to convert) any
Advances into, LIBO Rate Advances. Such Supplier shall promptly
notify the Administrative Agent in writing of the occurrence of
any such event (which notice the Administrative Agent agrees it
will as promptly as practicable forward to the Consignor and the
Consignee), such notice to state, in reasonable detail, the
reasons therefor and the additional amount required fully to
compensate such Supplier for such increased cost or reduced
amount, and such notice shall, in the absence of manifest error,
be prima facie evidence of the matters stated therein. Subject
to the terms of this Agreement, such additional amounts shall be
paid over by the Consignor to such Supplier promptly, and in any
event within five days of the Consignor's receipt of a like
amount of such payment pursuant to Section 9.3 of the Fee
Consignment Agreement. If increased costs are requested by any
Supplier (the "Affected Supplier") pursuant to this Section, the
Consignor may (and upon the instructions of the Consignee shall),
by telephonic notice (promptly confirmed in writing) to the
Administrative Agent (which shall give prompt notice thereof to
the Affected Supplier),
(a) as to any outstanding LIBO Rate Advances of such
Affected Supplier, be deemed to have prepaid such Advance in
full, without premium or penalty (other than as may be
provided in Section 4.4, and then only to the extent first
paid to the Consignor by the Consignee pursuant to Section
9.3 of the Fee Consignment Agreement), and, to the extent
first paid to the Consignor by the Consignee pursuant to
Section 9.3 of the Fee Consignment Agreement, pay over to
the Affected Supplier such increased costs as well as any
accrued Funding Fee, to the date of such deemed prepayment
on the principal amount prepaid, without simultaneously
making a prepayment of the Advances of each other Supplier
and simultaneously have each Advance which is deemed prepaid
accrue at the Alternate Base Rate in an equal principal
amount (without the necessity that the conditions set forth
in Section 5.2 are met); and
(b) with respect to any Advance Request or
Continuation Notice, request such Affected Supplier (i) to
make the applicable Advance then or thereafter subject to an
Advance Request as an Advance accruing at the Alternate Base
Rate, or (ii) to maintain the outstanding Base Rate Advance
or LIBO Rate Advance of such Supplier then or thereafter the
subject of a Continuation Notice as a Base Rate Advance;
provided, however, that in each case upon any Advance being
maintained as a Base Rate Advance pursuant to the terms of this
Section, (i) the Consignor shall (subject to the terms of this
Agreement) continue to pay a Funding Fee thereon at the LIBO Rate
(Reserve Adjusted) plus a margin of 1/2 of 1% per annum, and (ii)
the Consignor, to the extent (and only to the extent) the
Consignor has first received the fees payable pursuant to clause
(b) of Section 3.3.1 of the Fee Consignment Agreement, agrees to
pay over to each Supplier maintaining its Advances as Base Rate
Advances on the dates the Funding Fee is due and payable pursuant
to Section 3.2.1 a fee on such Advances at a rate equal to the
positive difference, if any, between (x) the Alternate Base Rate
from time to time in effect and (y) the LIBO Rate (Reserve
Adjusted) for the Funding Period in respect of such Advances plus
a margin of 1/2 of 1% per annum.
SECTION 4.4. Funding Losses. In the event any Supplier
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 Supplier to make, continue or
maintain any Advance as a LIBO Rate Advance, or to convert any
portion of the principal amount of any Advance into, a LIBO Rate
Advance) as a result of
(a) any repayment or prepayment of the principal
amount of any LIBO Rate Advances or any conversion of a LIBO
Rate Advance on a date other than the scheduled last day of
the Funding Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Advances (i) not being made as, or (ii) being
made as Advances other than as, LIBO Rate Advances in
accordance with the Advance Request; or
(c) any Advances not being continued as, or converted
into, LIBO Rate Advances in accordance with the Continuation
Notice therefor,
then, following the written notice of such Supplier to the
Administrative Agent (which notice the Administrative Agent
agrees it will as promptly as practicable forward to the
Consignor and the Consignee) of the amount that will (in the
reasonable determination of such Supplier) reimburse such
Supplier for such loss or expense, the Consignor agrees, subject
to the terms of this Agreement, that it will promptly, and in any
event within five days of its receipt of such amount or any
portion thereof from the Consignee pursuant to Section 9.3 of the
Fee Consignment Agreement, pay over to such Supplier the amount
so received. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of
manifest error, be prima facie evidence of the matters stated
therein.
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 court, central bank, regulator or other
governmental authority affects or would affect the amount of
capital required or expected to be maintained by any Supplier or
any Person controlling such Supplier, and such Supplier
determines (in its sole and absolute discretion) that the rate of
return on its or such controlling Person's capital as a
consequence of its Advance Commitment or the Advances made by
such Supplier is reduced to a level below that which such
Supplier 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 Supplier to the
Administrative Agent (which notice the Administrative Agent
agrees it will as promptly as practicable forward to the
Consignor and the Consignee), the Consignor agrees, subject to
the terms of this Agreement, that it will promptly, and in any
event within five days of its receipt of a payment to compensate
such Supplier or such controlling Person for such reduction in
rate of return from the Consignee pursuant to Section 9.3 of the
Fee Consignment Agreement or, pay over to such Supplier the
amount actually received. A statement of such Supplier as to any
such additional amount or amounts (including calculations thereof
in reasonable detail) shall, in the absence of manifest error, be
prima facie evidence of the matters stated therein. In
determining such amount, such Supplier may use any method of
averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
SECTION 4.6. Taxes. All payments made to the Suppliers and
the Administrative Agent hereunder shall be made free and clear
of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by
any taxing authority, but excluding franchise taxes and taxes
imposed on or measured by any Supplier's net income or receipts
imposed by the jurisdiction of incorporation or organization of
such Supplier or the jurisdiction where such Supplier has its
Domestic Office or LIBOR Office (such non-excluded items being
called "Taxes"). In the event that any withholding or deduction
from any payment to be made hereunder is required in respect of
any Taxes pursuant to any applicable law, rule or regulation,
then, subject to the terms of this Agreement, the Consignor
agrees that it will pay over to the Administrative Agent for the
account of the Suppliers, such additional amount or amounts
actually received from the Consignee pursuant to Section 4.5 of
the Fee Consignment Agreement as is necessary to ensure that the
net amount actually received by each Supplier will equal the full
amount such Supplier would have received had no such withholding
or deduction been required. Moreover, if the Administrative
Agent or any Supplier is obligated to pay any Taxes with respect
to any payment received by the Administrative Agent or such
Supplier hereunder, the Administrative Agent or such Supplier may
pay such Taxes and, subject to the terms of this Agreement, the
Consignor agrees that it will pay over to the Administrative
Agent such additional amounts to the extent actually received
from the Consignee pursuant to Section 4.5 of the Fee Consignment
Agreement as is necessary in order that the net amount received
by such Person after the payment of such Taxes (including any
Taxes on such additional amount) shall equal the amount such
Person would have received had such Taxes not been asserted.
Upon the request of the Consignee, the Consignor or the
Administrative Agent, each Supplier that is organized under the
laws of a jurisdiction other than the United States or a State
thereof shall, prior to the due date of any payments hereunder,
execute and deliver to the Consignee, the Consignor and the
Administrative Agent, on or about the first scheduled payment
date in each Fiscal Year, one or more (as the Consignee, the
Consignor or the Administrative Agent may reasonably request)
United States Internal Revenue Service Forms 4224 or Forms 1001
or such other forms or documents (or successor forms or
documents), appropriately completed, as may be applicable to
establish the extent (if any) to which a payment to such Supplier
is exempt from withholding or deduction of Taxes.
SECTION 4.7. Payments, Computations, etc. Unless otherwise
expressly provided, all payments pursuant to this Agreement or
any other Advance Document shall be made in Dollars subject to
the terms of this Agreement (including Section 8.15) to the
Administrative Agent for the pro rata account of the Suppliers
entitled to receive such payment in accordance with their
respective Percentages. All such payments required to be made to
the Administrative Agent shall, to the extent first received by
the Consignor, be made, without setoff, deduction or
counterclaim, not later than 11:00 a.m. (New York City time), on
the date due, in immediately available funds, to such account as
the Administrative Agent shall specify from time to time by
notice. 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 Supplier its share, if any, of such
payments received by the Administrative Agent for the account of
such Supplier. All interest and fees shall be computed on the
basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which
such interest or fee is payable over a year comprised of 360 days
(or, in the case of interest on a Base Rate Advance, 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 (b) of the
definition of the term "Funding 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 Supplier, in such
capacity, shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff or otherwise) on
account of any Advance (other than pursuant to the terms of
Sections 4.3, 4.4, 4.5, 4.6 and 8.3) in excess of its pro rata
share of payments then or therewith obtained by all Suppliers,
such Supplier shall purchase from the other Suppliers such
participation in Advances made by them as shall be necessary to
cause such purchasing Supplier to share the excess payment or
other recovery ratably with each of them; provided, however, that
if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Supplier, the purchase
shall be rescinded and each Supplier which has sold a
participation to the purchasing Supplier shall repay to the
purchasing Supplier the purchase price to the ratable extent of
such recovery together with an amount equal to such selling
Supplier's ratable share (according to the proportion of
(a) the amount of such selling Supplier's required
repayment to the purchasing Supplier
to
(b) the total amount so recovered from the purchasing
Supplier)
of any interest or other amount paid or payable by the purchasing
Supplier in respect of the total amount so recovered.
SECTION 4.9. Use of Proceeds. The Consignor shall apply
the proceeds of the Advances in connection with the consignment
of Bullion by the Consignor to the Consignee under the Fee
Consignment Agreement. Without limiting the foregoing, the
Consignor agrees that on the date that each Advance (other than
pursuant to clause (a) of Section 2.3.1) is made, subject to
Article V of the Fee Consignment Agreement, it will effectuate or
cause to occur a consignment of Bullion to a Plant in the number
of ounces equal to the applicable Dollar Value of gold or Dollar
Value of silver requested pursuant to the corresponding
Consignment Request as required by the Fee Consignment Agreement
or, if such conditions are not satisfied, immediately repay each
such Advance made in respect thereof (together with interest on
the amount of such Advances at the rate customarily charged for
inter-bank loans in the U.S. for the number of days such Advances
were outstanding).
SECTION 4.10. Replacement of Suppliers. Each Supplier
hereby severally agrees that if such Supplier (a "Subject
Supplier") (a) makes a demand upon the Consignor for (or if the
Consignor or the Consignee is otherwise required to pay) amounts
as a result of the operation of Section 4.3, Section 4.5 or
Section 4.6, or (b) fails to fund any Advances it is required to
make (at a time when no Default has occurred and is continuing
and the applicable conditions set forth in Article V shall have
been satisfied) the Consignor may (and upon the instructions of
the Consignee shall),
(i) in the case of clause (a), within 90 days of
receipt by the Consignor of such demand (or the occurrence
of such other event causing the Consignor (subject to the
terms of this Agreement) or the Consignee to be required to
pay such compensation); and
(ii) within 10 Business Days following the failure of
such Subject Supplier to fund its Advance hereunder,
in each case give notice (a "Replacement Notice") in writing to
the Administrative Agent and such Supplier of its intention to
replace such Supplier with a financial institution selected by
the Consignor and the Consignee and designated in such
Replacement Notice. If the Administrative Agent shall, in the
exercise of its reasonable discretion and within 30 days of its
receipt of such Replacement Notice, notify the Consignee, the
Consignor and such Subject Supplier in writing that the
designated financial institution is satisfactory to the
Administrative Agent, then such Supplier shall, so long as no
Default shall have occurred and be continuing, assign, in
accordance with Section 8.11.1 (including the second proviso in
Section 8.11.1), inter alia all of its Advance Commitment,
Advances, and other rights and obligations under this Agreement
and all other Advance Documents to such designated financial
institution; provided, however, that (i) such assignment shall be
without recourse, representation or warranty and shall be on
terms and conditions reasonably satisfactory to such Supplier and
such designated financial institution and (ii) the purchase price
paid by such designated financial institution shall be in the
amount of such Supplier's Advances, together with all accrued and
unpaid interest and fees in respect thereof, plus all other
amounts (including the amounts demanded and unreimbursed under
Section 4.3, 4.5 or 4.6, as the case may be), owing to the
Subject Supplier hereunder. Upon the effective date of such
Assignment, such institution shall become a "Supplier" for all
purposes under this Agreement and the other Advance Documents.
The Administrative Agent agrees to use all commercially
reasonable efforts to assist in locating a replacement financial
institution to replace any Subject Supplier if the Consignee
shall have agreed in writing to pay all reasonable costs and
expenses (including the fee payable to the Administrative Agent
pursuant to Section 8.11.1) incurred by the Administrative Agent
in providing such assistance.
SECTION 4.11. Assignment to Administrative Agent. For good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Consignor hereby sells, transfers,
assigns and conveys to the Administrative Agent, for its benefit
and the benefit of the Suppliers (as defined in this Agreement
and the Short-Term Dollar Supply Agreement), without
representation, warranty or recourse of any kind or nature, its
rights, title and interest in and to
(a) all Obligations (under and as defined in the Fee
Consignment Agreement and the Short-Term Fee Consignment
Agreement) of the Consignee owing to the Consignor under the
Fee Consignment Agreement and the Short-Term Fee Consignment
Agreement, to the extent such performance and/or payment
Obligations relate to the contingent obligation of the
Consignor to pay over to the Administrative Agent, for the
benefit of the Suppliers, any amounts hereunder or under the
Short-Term Dollar Supply Agreement that are conditioned upon
the Consignor first receiving a like amount (or any amount,
in the case of a sale of Bullion to the Consignee) from the
Consignee, or are conditioned upon the Consignee returning
Bullion back to the Consignor pursuant to the terms of the
Fee Consignment Agreement and the Short-Term Fee Consignment
Agreement; and
(b) the security interest granted to the Consignor by
the Consignee pursuant to the terms of Section 4.2 of the
Fee Consignment Agreement and Section 4.2 of the Short-Term
Fee Consignment Agreement in the Collateral to secure the
performance and payment of all such Obligations (including
in connection with a Bullion Sale) of the Consignee
described above in clause (a).
In furtherance of the foregoing, the Consignor agrees to execute
such additional documents and perform such further acts as may be
reasonably requested by the Required Suppliers to carry out and
perform the foregoing provisions, including the filing of
financing statements (Form UCC-3) reflecting the assignment
effectuated by this Section, and agrees to comply with the
provisions of this Agreement, including the provisions of Section
6.2 and Section 6.3. The Suppliers acknowledge the intent of the
Consignor and the Consignee, as set forth in the Fee Consignment
Agreement, is that the Fee Consignment Agreement and the
transactions contemplated thereunder are a true consignment, and
not a consignment intended as security.
ARTICLE V
CONDITIONS TO ADVANCES
SECTION 5.1. Initial Advance. The obligations of the
Suppliers to fund the initial Advance on and after the Effective
Date shall be subject to the prior or concurrent satisfaction of
each of the conditions precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent
shall have received from the Consignee a certificate, dated the
date of the initial Advance, of its Secretary or Assistant
Secretary as to
(a) resolutions of its Board of Directors then in full
force and effect authorizing the acknowledgment of this
Agreement;
(b) true and complete copies of the Consignee's
Organic Documents; and
(c) the incumbency and signatures of those of its
officers authorized to act with respect to this Agreement,
upon which certificate each Supplier may conclusively rely until
it shall have received a further certificate of the Secretary or
Assistant Secretary of the Consignee canceling or amending such
prior certificate.
SECTION 5.1.2. Revolving Credit Agreement and Fee
Consignment Agreement Effectiveness. All of the conditions set
forth in Section 5.1 of the Revolving Credit Agreement and
Section 5.1 of the Fee Consignment Agreement shall have been
satisfied (unless otherwise consented to by the Suppliers)
without waiver or modification and each of the Revolving Credit
Agreement and the Fee Consignment Agreement shall have become
effective in accordance with their terms.
SECTION 5.1.3. Opinions of Counsel. The Administrative
Agent shall have received
(a) copies of the opinions described in Section 5.1.4
of the Fee Consignment Agreement, together with reliance
letters, dated the date of the initial Advance and (in the
case of other than the opinion described in clause (e) of
Section 5.1.4 of the Fee Consignment Agreement) addressed to
the Administrative Agent, the Co-Agents and all Suppliers
(pursuant to which the Consignee (or, in the case of the
opinion to be delivered by Bingham, Dana & Gould, the
Consignor) shall have expressly instructed the counsel to
deliver such opinions to the Administrative Agent and the
Suppliers);
(b) an opinion of Kenneth E. Thorlakson, General
Counsel to the Consignor, substantially in the form of
Exhibit F hereto (and the Consignor hereby expressly
instructs such counsel to deliver such opinion to the
Suppliers); and
(c) an opinion of Mayer, Brown & Platt, New York,
counsel to the Consignor, substantially in the form of
Exhibit G hereto (and the Consignor hereby expressly
instructs such counsel to deliver such opinion to the
Suppliers).
SECTION 5.1.4. Closing Fees, Expenses, etc. The
Administrative Agent shall have received all fees, costs and
expenses due and payable pursuant to Section 8.3, if then
invoiced.
SECTION 5.2. All Advances. The obligation of each Supplier
to fund any Advance (including the initial Advance), other than
an Advance required to be made pursuant to clause (a) of Section
2.3.1 shall be subject to the satisfaction of each of the
conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. No Default, etc. Both before and after
giving effect to any such Advance the following statements shall
be true and correct
(a) after giving effect thereto, the aggregate
outstanding principal amount of all Advances owing
(i) to all Suppliers shall not exceed the Advance
Commitment Amount; or
(ii) to such Supplier shall not exceed such
Supplier's Percentage multiplied by the Advance
Commitment Amount;
(b) the conditions to the consignment of Bullion set
forth in Article V of the Fee Consignment Agreement (other
than as set forth in clause (f) of Section 5.2.1 thereof)
shall have been satisfied; and
(c) no Default shall have then occurred and be
continuing.
SECTION 5.2.2. Advance Request. The Administrative Agent
shall have received an Advance Request from the Consignor for
such Advance.
SECTION 5.2.3. Satisfactory Legal Form. All documents
executed or submitted pursuant hereto in connection with such
Advance (other than Advance Requests and Continuation Notices)
shall be reasonably satisfactory in form and substance to the
Required Suppliers and, to the extent reasonably requested by the
Required Suppliers, the Suppliers shall have received all
information, approvals, opinions, documents or instruments as the
Required Suppliers may reasonably request; provided, that neither
the Administrative Agent nor the Consignor shall be under any
obligation to ascertain if any such information, approvals,
opinions, documents or instruments are required by any Supplier
prior to any Advance.
SECTION 5.2.4. No Consignor Bankruptcy Event. No Consignor
Bankruptcy Event shall have occurred.
SECTION 5.2.5. Advances Pursuant to Section 2.3.1. The
obligation of each Supplier to continue to fund any Advance
pursuant to clause (a) of Section 2.3.1 shall be subject to the
satisfaction of each of the following conditions precedent:
(a) after giving effect thereto, the aggregate
outstanding principal amount of all Advances owing
(i)to all Suppliers shall not exceed the Advance
Commitment Amount; or
(ii)to such Supplier shall not exceed such
Supplier's Percentage multiplied by the Advance
Commitment Amount;
(b) the Administrative Agent shall have received a
Continuation Notice from the Consignor for such Advance;
(c) no Consignor Bankruptcy Event shall have occurred;
and
(d) the conditions set forth in Section 5.2.3 (other
than in clause (d) thereof) of the Fee Consignment Agreement
shall have been satisfied.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Listing of Events of Default. Each of the
following events or occurrences described in this Section 6.1
shall constitute an "Event of Default".
SECTION 6.1.1. Breach of Warranty. Any representation or
warranty of the Consignee made or deemed to be made in any Fee
Consignment Document or any other writing or certificate
furnished by or on behalf of the Consignee to the Consignor for
the purposes of or in connection with any such Fee Consignment
Document (including any certificates delivered pursuant to
Article V of the Fee Consignment Agreement) is or shall be
incorrect when made in any material respect.
SECTION 6.1.2. Default Under Material Agreements, etc. An
"Event of Default" under (and as defined in) the Fee Consignment
Agreement, the Short-Term Dollar Supply Agreement, the Short-Term
Fee Consignment Agreement, the Short Term Revolving Credit
Agreement or the Revolving Credit Agreement shall have occurred
and be continuing.
SECTION 6.1.3. Bankruptcy, Insolvency, etc. The Consignee
or any of its Subsidiaries (including joint ventures) shall
(a) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness 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 the Consignee or any of its Subsidiaries or
joint ventures (other than Non-Recourse Joint Ventures) or
any property of any thereof, or make a general assignment
for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for the
Consignee or any of its Subsidiaries or joint ventures
(other than Non-Recourse Joint Ventures) or 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;
(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 of the Consignee or any of its Subsidiaries or joint
ventures (other than Non-Recourse Joint Ventures), and, if
any such case or proceeding is not commenced by the
Consignee or such Subsidiary or such joint venture, such
case or proceeding shall be consented to or acquiesced in by
the Consignee or such Subsidiary or such joint venture or
shall result in the entry of an order for relief or shall
remain for 60 days undismissed; or
(e) take any action authorizing, or in furtherance of,
any of the foregoing;
provided, that, the foregoing shall not apply to any Subsidiary
or joint venture of the Consignee, the value of whose assets in
the aggregate for the Fiscal Quarter (as defined in the Revolving
Credit Agreement) most recently ended accounted for an amount
equal to or less than 5% of Adjusted Consolidated Tangible Net
Worth (as defined in the Revolving Credit Agreement).
SECTION 6.2. Action if Bankruptcy. If any Event of Default
described in clauses (a) through (d) of Section 6.1.3 shall
occur, the Advance Commitment of each Supplier (if not
theretofore terminated) shall automatically terminate and the
Stated Maturity Date shall automatically be accelerated and, as
set forth in Section 8.2 of the Fee Consignment Agreement, the
outstanding amount of all Obligations under each Fee Consignment
Document shall automatically be and become immediately due and
payable, and the Consignor agrees that it shall require that all
previously delivered Bullion then held by the Consignee pursuant
to the terms of the Fee Consignment Agreement shall be
immediately returned to the Consignor, in each case without
notice or demand.
SECTION 6.3. 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 6.1.3) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required
Suppliers, shall by notice to the Consignor and the Consignee
declare the Advance Commitment of each Supplier (if not
theretofore terminated) to be terminated and/or the Stated
Maturity Date to be accelerated and/or direct the Consignor to
(i) declare all or any portion of the Obligations of the
Consignee under each Fee Consignment Document to be due and
payable, and/or (ii) require that all or any portion of
previously consigned Bullion then held by the Consignee pursuant
to the terms of the Fee Consignment Agreement be immediately
returned to the Consignor, whereupon the full unpaid amount of
such Obligations of the Consignee which shall be so declared due
and payable shall be and become immediately due and payable,
without further notice, demand or presentment, the Advance
Commitments shall terminate and the Stated Maturity Date shall be
accelerated, and all such previously delivered Bullion shall be
immediately returned to the Consignor, in each case as so
directed by the Required Suppliers. Upon receipt of the notice
described in the first sentence of this Section, the Consignor
hereby agrees that it shall deliver a notice to the Consignee
that all Bullion then held by the Consignee pursuant to the Fee
Consignment Agreement is to be immediately returned to the
Consignor and that all monetary Obligations of the Consignee
under the Fee Consignment Agreement are then due and payable, in
accordance with Section 8.3 of the Fee Consignment Agreement. In
addition, the Consignor agrees that, if directed by the Required
Suppliers, it will deliver a notice to the Consignee of a default
by the Consignee of its Obligations under the Fee Consignment
Agreement, as contemplated by Section 8.1.4 of the Fee
Consignment Agreement.
SECTION 6.4. Consignor Bankruptcy Event. If any Consignor
Bankruptcy Event shall occur, the Advance Commitment of each
Supplier (if not therefore terminated) shall automatically
terminate and the Stated Maturity Date shall automatically be
accelerated, without notice or demand.
ARTICLE VII
THE AGENTS
SECTION 7.1. Actions. Each Supplier hereby appoints each
of Scotiabank, Chemical and BONY as its Co-Agent, and Scotiabank
as its Administrative Agent, under and for purposes of this
Agreement and each other Advance Document. Each Supplier
authorizes Scotiabank, in its capacity as the Administrative
Agent, to act on behalf of such Supplier under this Agreement and
each other Advance Document in such capacity and, in the absence
of other written instructions from the Required Suppliers
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), 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. Each Supplier hereby indemnifies (which indemnity shall
survive any termination of this Agreement) the Administrative
Agent, pro rata according to such Supplier's Percentage, from and
against any and all liabilities, obligations, losses, damages,
claims, costs or expenses of any kind or nature whatsoever to the
extent not otherwise paid by the Consignee 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 Advance Document, including
reasonable attorneys' fees, and as to which the Administrative
Agent is required to be, but is not reimbursed by the Consignee
or, to the extent received from the Consignee, the Consignor;
provided, however, that no Supplier shall be liable for the
payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which are determined to have
resulted solely 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 Advance
Document except for such actions expressly provided for
hereunder, or to prosecute or defend any suit in respect of this
Agreement or any other Advance Document (including under Section
4.11) 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 Suppliers and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 7.2. Funding Reliance, etc. Unless the
Administrative Agent shall have been notified by telephone,
confirmed in writing, by any Supplier by 5:00 p.m. (New York City
time), on the day prior to an Advance that such Supplier will not
make available the amount which would constitute its Percentage
of such Advance on the date specified therefor, the
Administrative Agent may assume that such Supplier has made such
amount available to the Administrative Agent and, in reliance
upon such assumption, make available to the Consignor a
corresponding amount. If and to the extent that such Supplier
shall not have made such amount available to the Administrative
Agent, such Supplier agrees to immediately advance to the
Administrative Agent on demand the corresponding amount together
with interest thereon, for each day from the date the
Administrative Agent made such amount available to the Consignor
to the date such amount is repaid to the Administrative Agent (i)
for the period from the date such funds were advanced to the
Consignor to (and including) three days thereafter, at the rate
customarily charged for inter-bank loans in the U.S. (and the
amount of interest that shall be returned to such Supplier in
respect of such days shall also equal the rate customarily
charged for inter-bank loans in the U.S.), and (ii) following
such third day, at the interest rate applicable at the time to
Advances comprising such Advance.
SECTION 7.3. Exculpation. Neither the Administrative
Agent, the Consignor (with respect to liabilities of the
Consignor arising under other than clause (e) of Section 3.1.3)
or any Co-Agent, nor any of their respective directors, officers,
employees or agents shall be liable to any Supplier for any
action taken or omitted to be taken by it under this Agreement or
any other Advance 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, or, other than with
respect to such Administrative Agent, Consignor or Co-Agent
enforceability, validity or due execution of this Agreement or
any other Advance Document (as it relates to such Person), nor to
make any inquiry respecting the performance by the Consignee of
its obligations hereunder or under any other Advance 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 and the Consignor 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 or the Consignor believes to be
genuine and to have been presented by a proper Person.
SECTION 7.4. Successor. The Administrative Agent may, with
the consent of all the Suppliers, resign as such at any time upon
at least 30 days' prior notice to the Consignor, the Consignee
and all Suppliers. If the Administrative Agent at any time shall
resign, the Required Suppliers may, with the written consent of
the Consignee so long as no Default has occurred and is
continuing (which consent shall not be unreasonably withheld),
appoint another Supplier as a successor Administrative Agent,
which shall thereupon (subject to its consent) become the
Administrative Agent hereunder. If no successor Administrative
Agent shall have been so appointed by the Required Suppliers, 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
Suppliers, appoint a successor Administrative Agent, which shall
(subject to its consent) be one of the Suppliers or a commercial
banking institution organized under the laws of the U.S. (or any
State thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as
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 the Administrative Agent, the provisions
of
(a) this Article VII 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 8.3 and Section 8.4 shall continue to
inure to its benefit.
SECTION 7.5. Advances by an Agent. Each Agent shall have
the same rights and powers with respect to the Advances made by
it or any of its respective Affiliates as any other Supplier and
may exercise the same as if it were not an Agent. Each Agent and
its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Consignee or
any Subsidiary or Affiliate of the Consignee as if such Agent, as
the case may be, were not an Agent hereunder.
SECTION 7.6. Credit Decisions. Each Supplier acknowledges
that it has, independently of the Consignor, the Administrative
Agent, each Co-Agent and each other Supplier, and based on such
Supplier's review of the financial information of the Consignee,
this Agreement, the other Advance Documents (the terms and
provisions of which being satisfactory to such Supplier) and such
other documents, information and investigations as such Supplier
has deemed appropriate, made its own credit decision to extend
its Advance Commitment. Each Supplier also acknowledges that it
will, independently of the Consignor, the Administrative Agent,
each Co-Agent and each other Supplier, 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 Advance Document.
SECTION 7.7. Copies, etc. The Administrative Agent shall
give prompt notice to each Supplier of each notice or request
required or permitted to be given to the Administrative Agent by
the Consignor and the Consignee pursuant to the terms of this
Agreement (unless concurrently delivered to the Suppliers by the
Consignor or the Consignee). The Administrative Agent will
distribute to each Supplier each document or instrument received
for its account and copies of all other communications received
by the Administrative Agent from the Consignor and the Consignee
for distribution to the Suppliers by the Administrative Agent in
accordance with the terms of this Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1. Waivers, Amendments, etc. The provisions of
this Agreement and of each other Advance Document may from time
to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the
Required Suppliers and the Consignee, provided, however, that no
such amendment, modification or waiver to this Agreement; and,
the Consignor shall not consent to any amendment, modification or
waiver to any Fee Consignment Document, which would:
(a) modify any requirement hereunder that any
particular action be taken by all the Suppliers or by the
Required Suppliers shall be effective unless consented to by
each Supplier;
(b) modify this Section 8.1 or Section 4.2 (or any
defined terms contained therein), the last sentence of
Section 9.10, Sections 9.3, 9.4 or 9.13 of the Fee
Consignment Agreement, change the definition of "Required
Suppliers", increase the Advance Commitment Amount or the
Percentage of any Supplier, release any collateral security
(it being acknowledged and agreed by the parties hereto that
the use of Bullion by the Consignee in the production and
fabrication of products for its customers or the sale
thereof to its customers (to the extent such Bullion has
been purchased pursuant to the terms of the Fee Consignment
Agreement or other gold and/or silver (as applicable) has
been returned to the Consignor pursuant to the terms of the
Fee Consignment Agreement) shall not be deemed to be a
release of collateral security), or (except as set forth in
Section 2.4.2) extend the Advance Commitment Termination
Date shall be made without the consent of each Supplier (and
the Consignor agrees that it will not consent to any such
amendment, waiver or other modification to the Fee
Consignment Agreement unless each Supplier (or in the case
of Section 9.3 of the Fee Consignment Agreement, each
affected Supplier) has first so consented);
(c) extend the due date for, or reduce the amount of,
any scheduled or mandatory repayment or prepayment of
principal of or fee in respect of any Advance or any other
amounts to a Supplier hereunder (or reduce the principal
amount of or rate of any fee or interest on any Advance)
shall be made without the consent of each affected Supplier;
(d) affect adversely the interests, rights or
obligations of (i) an Agent qua such Agent or (ii) the
Consignor, shall be made without consent of such Agent or
the Consignor, as applicable;
(e) amend, waive or otherwise modify (i) the
definition of "Bullion", "gold" or "silver", Sections 2.3,
2.3.3, 7.2.2 or 9.1 of the Fee Consignment Agreement, (ii)
any representation or warranty made by the Consignee in
Article VI of the Fee Consignment Agreement (including those
incorporated by reference in Section 6.1 thereof), any
covenant made by the Consignee in Article VII of the Fee
Consignment Agreement (including those incorporated by
reference in Section 7.1 thereof) or any Event of Default
(under and as defined in the Fee Consignment Agreement), or
(iii) any condition to the consignment of Bullion contained
in Article V of the Fee Consignment Agreement, shall be
consented to by the Consignor unless first consented to by
the Required Suppliers (and the Consignor agrees that it
will not consent to any such amendment, waiver or other
modification to the Fee Consignment Agreement unless the
Required Suppliers have first so consented); or
(f) extend the due date for, or reduce the amount of,
any scheduled or mandatory repayment or prepayment of (or
reduce the rate of) any fee, interest or other amounts
payable under the Fee Consignment Agreement shall be made
without the consent of each affected Supplier (and the
Consignor agrees that it will not consent to any such
extensions or reductions unless each affected Supplier has
first so consented).
No failure or delay on the part of any Agent, any Supplier or the
Consignor in exercising any power or right under this Agreement
or any other Advance 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 Consignor or the Consignee in any case shall entitle it to
any notice or demand in similar or other circumstances. No
waiver or approval by any Agent, any Supplier or the Consignor
under this Agreement or any other Advance 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.
SECTION 8.2. Notices. All notices and other communications
provided to any party hereto or the Consignee under this
Agreement or any other Advance 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, in the case of the Consignee, at its address or
facsimile number set forth in the Fee Consignment Agreement) or
set forth in the Supplier Assignment Agreement or at such other
address or facsimile number as may be designated by such party or
the Consignee, as applicable, 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 transmitted upon receipt
of electronic confirmation of transmission.
SECTION 8.3. Payment of Costs and Expenses. Subject to the
terms of this Agreement, the Consignor agrees to pay over to the
Administrative Agent all reasonable out-of-pocket expenses of the
Administrative Agent (including the fees and out-of-pocket
expenses of a single counsel to the Administrative Agent and of
local counsel, if any, who may be retained by counsel to the
Administrative Agent) received by it from the Consignee pursuant
to Section 9.3 of the Fee Consignment Agreement in connection
with
(a) the negotiation, preparation, execution and
delivery and (where applicable), filing and recording of
this Agreement and of each other Advance Document, including
schedules and exhibits, and any amendments, waivers,
consents, supplements or other modifications to this
Agreement or any other Advance Document as may from time to
time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the preparation and review of the form of any
document or instrument relevant to this Agreement or any
other Advance Document; and
(c) the administration and monitoring of this
Agreement and the Advance Documents, and compliance of the
parties hereto with respect to the terms hereof.
Subject to the terms of this Agreement, the Consignor further
agrees to pay over to the Administrative Agent amounts actually
received from the Consignee pursuant to Section 9.3 of the Fee
Consignment Agreement in respect of any stamp or other taxes
which may be payable in connection with the execution or delivery
of this Agreement, the Advances hereunder or any other Advance
Documents (provided, that each Supplier agrees if any Taxes are
paid by the Consignor or the Administrative Agent on behalf of
any Supplier to any governmental authority and such Taxes are not
paid over by the Consignee to the Consignor or the Administrative
Agent, as the case may be, as required pursuant to Section 4.5 of
the Fee Consignment Agreement, then such Supplier shall, promptly
following demand by the Consignor or the Administrative Agent, as
applicable, pay to the Consignor or Administrative Agent the full
amount of such Taxes). Subject to the terms of this Agreement,
the Consignor also agrees to pay over to the Administrative Agent
(to the extent (and only to the extent) first received by the
Consignor from the Consignee) for the account of the relevant
Supplier amounts in respect of reasonable out-of-pocket expenses
(including attorneys' fees and legal expenses (including those
fees and legal expenses of internal counsel to such Supplier
allocated to this Agreement)) incurred by such Agent, or such
Supplier in connection with (x) the negotiation of any
restructuring or "work-out", whether or not consummated, of any
Obligations and (y) the enforcement of any Obligations.
SECTION 8.4. Turn-Over of Certain Payments. Subject to the
terms of this Agreement, the Consignor hereby agrees to pay over
to the Administrative Agent, to the extent (and only to the
extent) first received by the Consignor from the Consignee under
Sections 9.3 and 9.14 of the Fee Consignment Agreement, costs and
expenses arising in connection with any and all actions, causes
of action, suits, losses (other than the principal amount of the
Advances), costs, liabilities and damages, and expenses incurred
by the Agents or the Suppliers and each of their respective
officers, directors, employees and agents (collectively, the
"Indemnified Parties") in connection with the execution and
delivery of this Agreement by the Agents and each Supplier and
the extension of the Advance Commitment (irrespective of whether
any such Indemnified Party is a party to such action), including
reasonable attorneys' fees and disbursements (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 Advance;
(b) any breach by the Consignee of its Obligations
under (and as defined in) the Fee Consignment Agreement;
(c) any investigation, litigation or proceeding
involving the Consignee or any of its Subsidiaries or
property now or previously owned or leased by the Consignee
or any of its Subsidiaries related to any environmental
cleanup, compliance or other similar matter relating to the
protection of the environment by the Consignee or any of its
Subsidiaries or the Release by the Consignee or any of its
Subsidiaries of any Hazardous Material; provided; that the
Indemnified Party shall have given the Consignee notice of
any such matter and an opportunity to participate in, but
not (except at the sole discretion of the Indemnified
Parties) to manage or control, the defense or settlement of
any such matters which may give rise to any Indemnified
Liabilities;
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or
releasing from, any real property owned or operated by the
Consignee 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 Consignee or such
Subsidiary; or
(e) any breach of warranty contained in Section 6.12
of the Revolving Credit Agreement (as incorporated by
reference pursuant to Section 6.1 of the Fee Consignment
Agreement), without giving effect to the exceptions based
upon the materially adverse effect and any qualification
based on materiality or knowledge;
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.
SECTION 8.5. Survival. Subject to the terms of this
Agreement, the obligations of the Consignor under Article IV,
Section 8.3 and Section 8.4, the obligations of the Suppliers
under Section 7.1, and the provisions of Section 8.15 (including
the obligations of the parties hereto pursuant to such Section)
shall, in each case survive any termination of this Agreement,
the payment in full of all Obligations and the termination of the
Advance Commitment.
SECTION 8.6. Severability. Any provision of this Agreement
or any other Advance 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 Advance Document
or affecting the validity or enforceability of such provision in
any other jurisdiction.
SECTION 8.7. Headings. The various headings of this
Agreement and of each other Advance Document are inserted for
convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Advance Document
or any provisions hereof or thereof.
SECTION 8.8. Execution in Counterparts, Effectiveness, etc.
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be executed by the Consignor
and the Administrative Agent and be deemed to be an original and
all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Consignor, each
Agent and each Supplier, and acknowledged by the Consignee (or
notice thereof satisfactory to the Administrative Agent) shall
have been received by the Administrative Agent and notice thereof
shall have been given by the Administrative Agent to the
Consignee and each Supplier.
SECTION 8.9. Governing Law; Entire Agreement. THIS
AGREEMENT AND EACH OTHER ADVANCE DOCUMENT SHALL EACH BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Agreement and the other Advance
Documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede
any prior agreements, written or oral, with respect thereto.
SECTION 8.10. 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 Consignor (i) may not assign or transfer its
rights or obligations hereunder or (except as set forth in
Section 4.11) under the Fee Consignment Agreement and (ii)
agrees that it will not consent to the Consignee assigning
or transferring any of its rights or obligations under the
Fee Consignment Agreement, in each case without the prior
written consent of all Suppliers; and
(b) the rights of sale, assignment and transfer of the
Suppliers are subject to Section 8.11;
provided, that, the parties hereto acknowledge and agree that the
Consignee is a third party beneficiary of clauses (b) and (c) of
Section 2.4.2, Sections 4.1 through 4.6 (inclusive), 4.10, 7.4,
8.1, 8.2 and 8.11, to the extent such clauses and Sections
expressly provide the Consignee with rights or benefits
thereunder, and, to the extent of the delivery requirements of
the Consignor thereunder, Sections 2.3, 2.3.1 and 3.2.1.
SECTION 8.11. Sale and Transfer of Advances; Participation
in Advances. Each Supplier may assign, or sell participation in,
its Advances and Advance Commitment to one or more other Persons
in accordance with this Section 8.11.
SECTION 8.11.1. Assignments. Any Supplier,
(a) with the written consent of the Consignor
(provided, that the Consignee shall have also consented to
such Assignee Lender pursuant to Section 10.11.1 of the
Revolving Credit Agreement, which consents shall not be
unreasonably delayed or withheld and which consent, in the
case of the Consignee, shall be deemed to have been given in
the absence of a written notice delivered by the Consignee
to the Administrative Agent, on or before the fifth Business
Day after receipt by the Consignee of such Supplier's
request for consent, stating, in reasonable detail, the
reasons why the Consignee proposes to withhold such consent)
may at any time assign and delegate to one or more
commercial banks or other financial institutions;
(b) with notice to the Consignee and the
Administrative Agent, but without the consent of any Person,
may (i) assign and delegate to any other Supplier, and (ii)
assign and/or delegate to any of its Affiliates or
Subsidiaries; and
(c) with notice to the Administrative Agent, but
without the consent of any Person, may pledge its Advances
(and related rights thereto) to a Federal Reserve Bank in
support of borrowings made by such Supplier from such
Federal Reserve Bank;
(each Person described in the foregoing clauses as being the
Person to whom such assignment and delegation is to be made,
being hereinafter referred to as an "Assignee Supplier"), all or
any fraction of such Supplier's total Advances and Advance
Commitment (which assignment and delegation shall be of a
constant, and not a varying, percentage of all the assigning
Supplier's Advances and Advance Commitment) in a minimum
aggregate amount, when taken together with other assignments
being made to such Assignee Supplier under the Revolving Credit
Agreement, the Short Term Revolving Credit Agreement and the
Short-Term Dollar Supply Agreement, of $10,000,000 in the case of
an assignment described in clause (a) (such amount to be reduced
pro rata by any permanent reductions in the amount of the Advance
Commitment), or if less, all of such Supplier's Advances and
Advance Commitment; provided, however, that any such Supplier
will (i) except in connection with a pledge of Advances pursuant
to clause(c) above, contemporaneously sell a pro rata portion of
its (A) Advances and Advance Commitment (as such terms are
defined in the Short-Term Dollar Supply Agreement), (B) Loans and
Commitment (as such terms are defined in the Revolving Credit
Agreement) and (C) its Loans and Commitment (as such terms are
defined in the Short Term Revolving Credit Agreement), in each
case to the same Assignee Supplier pursuant to the terms of such
agreements, and (ii) comply, if applicable, with the provisions
contained in the last sentence of Section 4.6 and further,
provided, however, that, the Consignee, the Consignor and the
Administrative Agent shall be entitled to continue to deal solely
and directly with such Supplier in connection with the interests
so assigned and delegated to an Assignee Supplier until
(d) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Supplier, shall
have been given to the Consignee and the Administrative
Agent by such Supplier and such Assignee Supplier;
(e) such Assignee Supplier shall have executed and
delivered to the Consignee and the Administrative Agent a
Supplier Assignment Agreement, accepted by the
Administrative Agent and acknowledged by the Consignee; and
(f) the processing fees described below shall have
been paid.
From and after the date that the Administrative Agent accepts
such Supplier Assignment Agreement, (x) the Assignee Supplier
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 Supplier in
connection with such Supplier Assignment Agreement, shall have
the rights and obligations of a Supplier hereunder and under the
other Advance Documents, and (y) the assignor Supplier, to the
extent that rights and obligations hereunder have been assigned
and delegated by it in connection with such Supplier Assignment
Agreement, shall be released from its obligations hereunder and
under the other Advance Documents. Accrued interest and fees on
that part of the assigned Advances and Advance Commitment shall
be paid as provided in the Supplier Assignment Agreement.
Subject to the terms hereof, accrued interest and accrued fees
shall be paid by the Consignor at the same time or times provided
in this Agreement. Such assignor Supplier or such Assignee
Supplier must also pay (without duplication of any processing
fees payable pursuant to Section 10.11.1 of the Revolving Credit
Agreement, Section 10.11.1 of the Short Term Revolving Credit
Agreement and Section 8.11.1 of the Short-Term Dollar Supply
Agreement) a processing fee to the Administrative Agent upon
delivery of any Supplier Assignment Agreement in the amount of
$2,500 (provided, however, that such processing fee shall not be
required to be paid by a Supplier in the case of (i) an
assignment and/or delegation of such Supplier's Advances and
Advance Commitment to an Affiliate or Subsidiary of such
Supplier, or (ii) to a Federal Reserve Bank pursuant to clause
(c) of this Section). Any attempted assignment and delegation
not made in accordance with this Section 8.11.1 shall be null and
void.
SECTION 8.11.2. Participation. Any Supplier may at any
time sell 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 Advances,
its Advance Commitment, or other interests of such Supplier
hereunder; provided, however, that
(a) no participation contemplated in this
Section 8.11.2 shall relieve such Supplier from its Advance
Commitment or its other obligations hereunder or under any
other Advance Document;
(b) such Supplier shall remain solely responsible for
the performance of its Advance Commitment and such other
obligations;
(c) the Consignee, the Consignor and the
Administrative Agent shall continue to deal solely and
directly with such Supplier in connection with such
Supplier's rights and obligations under this Agreement and
each of the other Advance Documents;
(d) no Participant, unless such Participant is an
Affiliate of such Supplier, or is itself a Supplier, shall
be entitled to require such Supplier to take or refrain from
taking any action hereunder or under any other Advance
Document, except that such Supplier may agree with any
Participant that such Supplier will not, without such
Participant's consent, take any actions of the type
described in clause (b), (c) or (f) of Section 8.1; and
(e) neither the Consignor nor the Consignee shall be
required to pay any amount hereunder or under the Fee
Consignment Agreement that is greater than the amount which
it would have been required to pay had no participating
interest been sold.
Subject to the terms of this Agreement, the Consignor
acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 8.3 and 8.4, shall be
considered a Supplier.
SECTION 8.12. Other Transactions. Nothing contained herein
shall preclude any Agent or any other Supplier from engaging in
any transaction, in addition to those contemplated by this
Agreement or any other Advance Document, with the Consignee or
any of its Affiliates in which the Consignee or such Affiliate is
not restricted hereby from engaging with any other Person.
SECTION 8.13. Forum Selection and Consent to Jurisdiction.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER ADVANCE DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF EACH AGENT, THE CONSIGNOR OR THE
SUPPLIERS SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE CITY AND STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY 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 SUPPLIERS, THE AGENTS AND
THE CONSIGNOR HEREBY EXPRESSLY AND IRREVOCABLY FOR ITSELF AND ITS
PROPERTY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE CITY AND
STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION.
SECTION 8.14. Waiver of Jury Trial. EACH AGENT, THE
CONSIGNOR AND THE SUPPLIERS HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER ADVANCE
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF SUCH AGENT, THE CONSIGNOR
OR THE SUPPLIERS. THE AGENTS, THE SUPPLIERS AND THE CONSIGNOR
ACKNOWLEDGE AND AGREE THAT EACH HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF
EACH OTHER ADVANCE DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR EACH OTHER PARTY HERETO
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER ADVANCE
DOCUMENT.
SECTION 8.15. No Recourse. Each of the parties acknowledge
and agree that the Consignor shall in no event be (or be deemed
to be) a guarantor, surety or obligor of any of the monetary or
other Obligations (when used in this Section, such term to mean
and include the Obligations under (and as defined in) the Fee
Consignment Agreement and the Short-Term Fee Consignment
Agreement) of the Consignee, and shall under no circumstances be
liable for any of the Obligations of the Consignee. In
furtherance of the foregoing, and notwithstanding any provisions
herein or in any of the other Advance Documents or Fee
Consignment Documents to the contrary (other than the last
sentence of this Section),
(a) in the event that the Administrative Agent, acting
at the direction of the Required Suppliers, shall at any
time take action to enforce the collection of the
Obligations, the Suppliers shall in no event have recourse
against the Consignor or any of its assets (and the
Suppliers acknowledge and agree that the Obligations are not
(nor shall they be deemed to be) obligations owing by the
Consignor; and
(b) the Consignor shall only be required to pay over
all or any portion of the amounts due under Sections 2.2,
2.4.2, Article III (other than clauses (a) and (e) of
Section 3.1.3), Article IV, Section 6.2, Section 6.3,
Section 8.3 and Section 8.4 (or any other amounts hereunder
to the extent such payment is expressly made contingent on
the Consignor first receiving such amount from the
Consignee) to the extent (and only to the extent) that the
Consignor first receives payment (in whole or in part as
applicable) with respect thereto in immediately available
funds from the Consignee or (in the case of a repayment or
prepayment of the Advances), the Consignee has first
returned to (or purchased from) the Consignor all or a
portion of the Bullion in respect of such Advances in each
case pursuant to the terms of the Fee Consignment Agreement
and Short-Term Fee Consignment Agreement.
Each of the Suppliers acknowledge and agree that if at any time
any payment made by the Consignor to a Supplier in respect of any
Obligations is subsequently rescinded, recovered from or repaid
by the Consignor for any reason other than to the extent of the
Consignor's gross negligence or wilful misconduct (including as
the result of any bankruptcy, dissolution, reorganization or
liquidation proceedings (or proceedings similar thereto) relating
to the Consignee), then each such Supplier shall repay to the
Consignor on demand that portion received by it of the amount so
rescinded, recovered from or repaid by the Consignor. Nothing in
this Section shall adversely affect any rights of any Suppliers
(when used in this Section, such term to mean and include all
Suppliers, under and as defined in this Agreement and the Short-
Term Dollar Supply Agreement) (i) to assert any claims against
the Consignor to the extent that the Consignor has actually
received from the Consignee all or any portion of the monetary
amounts that the Consignor is required to pay over to the
Suppliers hereunder or under the Short-Term Dollar Supply
Agreement or has actually received all or any portion of Bullion
(when used in this Section, such term to mean all Bullion, as
defined in the Fee Consignment Agreement and the Short-Term Fee
Consignment Agreement) that is required to be returned to the
Consignor under the terms of the Fee Consignment Agreement or the
Short-Term Fee Consignment Agreement (or has actually received,
in lieu of a return of Bullion, Dollars to the extent any such
Bullion is purchased by the Consignee pursuant to the terms of
the Fee Consignment Agreement or the Short-Term Fee Consignment
Agreement), and notwithstanding such actual receipt of monetary
amounts or Bullion (as the case may be), the Consignor has failed
to repay to the Suppliers any amount owing to them under the
terms hereof, under the Short-Term Dollar Supply Agreement or
under the Suppliers' Agreement, to the extent then due and
payable, or (ii) to direct the Consignor to accelerate the
Obligations and require the immediate return of Bullion to the
Consignor, as set forth in Section 6.2 and 6.3 of this Agreement
and Section 6.2 and 6.3 of the Short-Term Dollar Supply
Agreement. The Consignor agrees to indemnify and hold harmless
the Indemnified Parties from and against all actions, causes of
action and suits, and losses, costs, liabilities and actual (but
in no event consequential or punitive) damages hereunder arising
(i) by reason of a Consignor Bankruptcy Event, (ii) to the extent
and only to the extent from the gross negligence or wilful
misconduct of the Consignor (in its capacity as Consignor) or
(iii) from a breach hereunder or under the Fee Consignment
Agreement by the Consignor (in such capacity) at a time when no
Event of Default has occurred and is continuing.
SECTION 8.16. Waiver of Immunity; Judgment Currency.
(a) To the extent that the Consignor may have any immunity
on the grounds of sovereignty or otherwise from jurisdiction of
any court in the United States or from any legal process (whether
through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) or from any legal
proceeding with respect to itself or its property, the Consignor
hereby irrevocably waives such immunity for itself and its
property (including, without limitation, property held by the
Consignor for its own account) with respect to its obligations
under this Agreement and the Suppliers' Agreement.
(b) If for the purpose of obtaining judgment in any court
it is necessary to calculate the equivalent of a sum due from the
Consignor under this Agreement which is denominated in Dollars in
another currency, the rate of exchange used shall be that at
which in accordance with normal banking procedures the Supplier
seeking such judgment could purchase Dollars with such other
currency on the Currency Business Day (defined below) preceding
that on which judgment is given. Notwithstanding any such
judgment in such other currency, the obligations of the Consignor
with respect to such sum due from it to the applicable Supplier
hereunder shall be discharged only to the extent that on the
Currency Business Day following receipt by such Supplier of such
amount adjudged to be so due in such other currency, such
Supplier, in accordance with normal banking procedures, can
purchase Dollars with such currency. If the Dollars so purchased
are less than the sum originally due to the applicable Supplier
in Dollars, the Consignor agrees as a separate obligation and
notwithstanding any such judgment to indemnify such Supplier
against such loss (other than any loss caused by such Supplier's
gross negligence and wilful misconduct) and to promptly pay to
such Supplier an amount such that such Supplier receives the full
sum originally due to such Supplier in Dollars; and if the
Dollars so purchased exceed such sum originally due to such
Supplier in Dollars, such Supplier agrees to remit such excess to
the Consignor. "Currency Business Day" means any day other than
a Saturday, Sunday or relevant holiday on which dealings in such
other currency and Dollars are carried out in the New York
interbank market and through official agencies of the country
where such other currency is available for purchase with Dollars.
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.
THE BANK OF NOVA SCOTIA,
in its capacity as Consignor
By: /s/ Stephen Lockhart
Title: Senior Manager
Address: One Liberty Plaza
New York, N.Y. 10006
Facsimile No: 212-225-5090
Attention: Mr. Brian Allen
With a copy to:
Address: The Bank of Nova Scotia
44 King Street West
Toronto, Ontario
Canada M5H 1H1
Facsimile No: 416-866-4053
Attention: Mr. Peter Payne
THE BANK OF NOVA SCOTIA,
in its capacity as Administrative
Agent and Co-Agent
By: /s/ Stephen Lochart
Title: Senior Manager
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5090
Attention: Mr. Brian Allen
PERCENTAGE
8.641975300% THE BANK OF NOVA SCOTIA, in its capacity
as a Supplier
By: /s/ Stephen Lockhart
Name: Stephen Lockhart
Title: Senior Manager
Domestic
Office: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5091
Attention: Mr. Brian Allen
LIBOR
Office: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5091
Attention: Mr. Brian Allen
PERCENTAGE
8.641975300% THE BANK OF NEW YORK, in its capacity as
a Co-Agent and a Supplier
By: /s/ William A. Kerr
Name: William A. Kerr
Title: Vice President
Domestic
Office: One Wall Street
New York, New York 10286
Facsimile No.: 212-635-1480
Attention: Wendy Forrest
LIBOR
Office: One Wall Street
New York, New York 10286
Facsimile No.: 212-635-1480
Attention: Wendy Forrest
PERCENTAGE
8.641975300% CHEMICAL BANK, in its capacity as
a Co-Agent and a Supplier
By: /s/ Theodore L. Parker
Name: Theodore L. Parker
Title: Vice President
Domestic
Office: 270 Park Avenue
New York, NY 10017
Facsimile No.: 212-270-4016
Attention: Renee Pierre-Louis
LIBOR
Office: 270 Park Avenue
New York, NY 10017
Facsimile No.: 212-270-4016
Attention: Renee Pierre-Louis
PERCENTAGE
7.514761100% FLEET PRECIOUS METALS INC.
By: /s/ W. Timothy Coggins/Eleanor Vander Mel
Name: W. Timothy Coggins/Eleanor Vander Mel
Title: Asst. Vice President/Vice President
Domestic
Office: 111 Westminster Street
Providence, RI 02903-2305
Facsimile No.: 401-278-3077
Attention: Dave Devel
LIBOR
Office: 111 Westminster Street
Providence, RI 02903-2305
Facsimile No.: 401-272-3440
Attention: Joyce Deschenes]
PERCENTAGE
7.514761100% NBD BANK, N.A.
By: /s/ Anna R. Hoffman
Name: Anna R. Hoffman
Title: Vice President
Domestic
Office: 611 Woodward Avenue
Detroit, Michigan 48302
Facsimile No.: 313-225-1586
Attention: Cheryl Brosovic/Ann Hoffman
LIBOR
Office: 611 Woodward Avenue
Detroit, Michigan 48302
Facsimile No.: 313-225-1586
Attention: Cheryl Brosovic/Ann Hoffman
PERCENTAGE
6.441223800% THE BANK OF TOKYO TRUST COMPANY
By: /s/ Jeffrey Miller
Name: Jeffrey Miller
Title:
Domestic
Office: The Bank of Tokyo
Trust Company
Telephone No.: 212-766-5461
Facsimile No.: 212-732-1678
Attention: Rolando Uy
LIBOR
Office: The Bank of Tokyo
Trust Company
Telephone No.: 212-766-5461
Facsimile No.: 212-732-1678
Attention: Rolando Uy
PERCENTAGE
6.441223800% LTCB TRUST COMPANY
By: /s/ Rene LeBlanc
Name: Rene LeBlanc
Title: Senior Vice President
Domestic
Office: 165 Broadway
New York, NY 10006
Facsimile No.: (212) 608-3081
Attention: Winston Brown
LIBOR
Office: 165 Broadway
New York, NY 10006
Facsimile No.: (212) 608-3081
Attention: Winston Brown
PERCENTAGE
6.441223800% SHAWMUT BANK, N.A.
By: /s/ Kerry Day
Name: Kerry Day
Title: Assistant Vice President
Domestic
Office: One Federal St. OF-0324
Boston, Massachusetts 02211
Facsimile No.: 617-292-2566
Attention: Kerry Day
LIBOR
Office: Shawmut Bank, N.A.
One Federal St. OF-0324
Boston, Massachusetts 02211
Facsimile No.: 617-292-2566
Attention: Kerry Day
PERCENTAGE
4.294149200% CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Mark A. Campellone
Name: Mark A. Campellone
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ Mark A. Campellone
Name: Mark A. Campellone
Title: Authorized Signature
In both cases:
Domestic
Office: 1301 Avenue of the Americas
New York, New York 10019
Facsimile No.: 212-459-3179
For Administrative
Matters:
Attention: Kevin McCarthy
LIBOR
Office: 1301 Avenue of the Americas
New York, New York 10019
Facsimile No.: 212-459-3179
For Administrative
Matters:
Attention: Kevin McCarthy
For Credit Matters:
Attention: Andrea Griffis
PERCENTAGE
4.294149200% THE DAIWA BANK, LIMITED
By: /s/ J.H. Broadley
Name: J.H. Broadley
Title: Vice President
By: /s/ B.W. Henry
Name: B.W. Henry
Title: Vice President and Manager
Domestic
Office: The Daiwa Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4500
Chicago, Illinois 60606
LIBOR
Office: The Daiwa Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4500
Chicago, Illinois 60606
Address for
Notices: The Daiwa Bank, Limited
450 Lexinton Avenue
Suite 1700
New York, New York 10017
Facsimile No.: 212-818-0866
Attention: Catherine Tiano, Credit
Administration Assistant
PERCENTAGE
4.294149200% DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By: /s/ Jeffrey N. Wieser
Name: Jeffrey N. Wieser
Title: Director
By: /s/ Jean M. Hannigan
Name: Jean M. Hannigan
Title: Assistant Vice President
Domestic
Office: Deutsche Bank AG,
New York and/or
Cayman Islands Branches
31 West 52nd Street
New York, New York 10019
Facsimile No.: 212-474-8212
Attention: Jeffrey N. Wieser/
Gregory M. Hill
LIBOR
Office: Deutsche Bank AG,
Cayman Islands Branch
31 West 52nd Street
New York, New York 10019
Facsimile No.: 212-474-8212
Attention: Jeffrey N. Wieser/
Gregory M. Hill
PERCENTAGE
4.294149200% THE FUJI BANK LTD.
By: /s/ Gina Kearns
Name: Gina Kearns
Title: Vice President and Manager
Domestic
Office: The Fuji Bank, Limited,
New York Branch
Two World Trade Center,
79th Floor
New York, New York 10048
Facsimile No.: 212-912-0516
Attention: Yoshihiko Shiotsugu
LIBOR
Office: The Fuji Bank, Limited,
New York Branch
Two World Trade Center,
79th Floor
New York, New York 10048
Facsimile No.: 212-912-0516
Attention: Yoshihiko Shiotsugu
PERCENTAGE
4.294149200% NATIONAL WESTMINSTER BANK USA
By: /s/ Phillip H. Sorace
Name: Phillip H. Sorace
Title: Vice President
Domestic
Office: 592 Fifth Avenue
New York, New York 10036
Facsimile No.: 212-602-2890
Attention: Patty Singh or Bob Gaiti
LIBOR
Office: 592 Fifth Avenue
New York, New York 10036
Facsimile No.: 212-602-2890
Attention: Patty Singh or Bob Gaiti
PERCENTAGE
3.220611900% ABN AMRO BANK N.V. NEW YORK BRANCH
By: /s/ Richard H. West
Name: Richard H. West
Title: Group Vice President
By: /s/ Rodolfo Barros
Name: Rodolfo Barros
Title: Vice President
Domestic
Office: 500 Park Avenue
New York, New York 10022
Facsimile No.: 212-688-5815
Attention: Ed Tice/Rodolfo Barros
LIBOR
Office: 500 Park Avenue
New York, New York 10022
Facsimile No.: 212-688-5815
Attention: Ed Tice/Rodolfo Barros
PERCENTAGE
3.220611900% BANQUE PARIBAS
By: /s/ Richard G. Burrows
Name: Richard G. Burrows
Title: Vice President
By: /s/ Ann C. Pifer
Name: Ann C. Pifer
Title: Assistant Vice President
Domestic
Office: 787 Seventh Avenue
New York, NY 10019
Facsimile No.: 212-841-2217
For Administrative
Matters:
Attention: Loan Servicing Dept.
Facsimile No.: 212-841-2333
For Credit Matters:
Attention: Large Corp. Group
LIBOR
Office: Banque Paribas
787 Seventh Avenue
New York, NY 10019
Facsimile No.: 212-841-2217
For Administrative
Matters:
Attention: Loan Servicing Dept.
Facsimile No.: 212-841-2333
For Credit Matters:
Attention: Large Corp. Group
PERCENTAGE
3.220611900% GIROCREDIT BANK AG DER SPARKESSEN
GRAND CAYMAN ISLAND BRANCH
By: /s/ D. Stephens/John Redding
Name: Dhuane G. Stephens/John P. Redding
Title: Vice President
Domestic
Office: 65 East 55th Street
New York, New York 10022
Facsimile No: 212-644-0644
Attention: Dhuane Stephens
LIBOR
Office: 65 East 55th Street
New York, New York 10022
Facsimile No.: 212-421-2719
Attention: Orlando Diaz
PERCENTAGE
2.147074700% COMERICA BANK
By: /s/ Julie Burke Smith
Name: Julie Burke Smith
Title: Vice President
Domestic
Office: Comerica Bank
500 Woodward Avenue MC 3280
Detroit, Michigan 48226
Facsimile No.: 313-222-3330
Attention: Sandy Truman
LIBOR
Office: Comerica Bank
500 Woodward Avenue MC 3280
Detroit, Michigan 48226
Facsimile No.: 313-222-3330
Attention: Sandy Truman
PERCENTAGE
2.147074700% IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ J. Christopher Mangan
Name: J. Christopher Mangan
Title: Vice President
Domestic
Office: One State Street
New York, New York 10004
Facsimile No.: 212-858-2768
Attention: Mr. Jamie M. Weston
LIBOR
Office: One State Street
New York, New York 10004
Facsimile No.: 212-858-2768
Attention: Mr. Jamie M. Weston
PERCENTAGE
2.147074700% THE MITSUBISHI BANK, LIMITED -
NEW YORK BRANCH
By: /s/ Paula Mueller
Name: Paula Mueller
Title: Vice President
Domestic
Office: 225 Liberty Street
Two World Financial Center
New York, New York 10281
Facsimile No.: 212-667-3562
Attention: Ms. Paula Mueller,
Vice President
LIBOR
Office: The Mitsubishi Bank, Limited
New York Branch
225 Liberty Street
Two World Financial Center
New York, New York 10281
Facsimile No.: 212-667-3562
Attention: Ms. Paula Mueller,
Vice President
PERCENTAGE
2.147074700% YASUDA TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: /s/ Nicholas Pullen
Name: Nicholas Pullen
Title: Vice President
Domestic
Office: 666 Fifth Avenue, Suite 801
New York, New York 10103
Facsimile No.: 212-373-5797
Attention: Mr. Richard Ortiz
LIBOR
Office: 666 Fifth Avenue, Suite 801
New York, New York 10103
Facsimile No.: 212-373-5797
Attention: Mr. Richard Ortiz
100%
HANDY & HARMAN HAS REVIEWED THE TERMS OF
THIS AGREEMENT, AND ACKNOWLEDGES THE EFFECT
OF SUCH TERMS AS THEY RELATE TO HANDY &
HARMAN'S OBLIGATIONS UNDER SECTION 9.3 AND
SECTION 9.4 OF THE FEE CONSIGNMENT
AGREEMENT:
HANDY & HARMAN
By: /s/ Stephen B. Mudd
Name: Stephen B. Mudd
Title: Vice President
and Treasurer