-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OGYKiZ3mlfzQ3+cLybx1rwMfC09xQLI5nJRaU1TGPCiteDZkJ8YLwuDlUHEUrTgM XstXOsYQ3aIDJms+xJ9zsw== 0000315523-96-000021.txt : 19961122 0000315523-96-000021.hdr.sgml : 19961122 ACCESSION NUMBER: 0000315523-96-000021 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19961112 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19961121 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: USMX INC CENTRAL INDEX KEY: 0000315523 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 841076625 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-09370 FILM NUMBER: 96670489 BUSINESS ADDRESS: STREET 1: 141 UNION BLVD STE 100 CITY: LAKEWOOD STATE: CO ZIP: 80228 BUSINESS PHONE: 3039854665 MAIL ADDRESS: STREET 1: 141 UNION BLVD SUITE 100 CITY: LAKEWOOD STATE: CO ZIP: 80228 FORMER COMPANY: FORMER CONFORMED NAME: U S MINERALS EXPLORATION CO DATE OF NAME CHANGE: 19880222 8-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): November 12, 1996 USMX, INC. (Exact name of registrant as specified in its charter) Delaware 0-9370 84-1076625 (State or other (Commission File (I.R.S. Employer jurisdiction of Number) Identification Incorporation) No.) 141 Union Boulevard Suite 100 (303) 985-4665 80228 Lakewood, Colorado (Registrant's (Zip Code) (Address of telephone number, principal executive including area code) offices) USMX, INC. Item 5. Other Events USMX, Inc.'s principal focus during 1996 has been the development efforts at its Illinois Creek Project in Alaska. It was the Company's goal to achieve gold production at Illinois Creek by the end of 1996. However, due principally to the high costs that would be incurred in order to complete the necessary hydrologic test of the leach pad liner and to commence the leaching operation during the winter months, the Company has decided to defer commencement of gold production. In connection with the decision to defer production at Illinois creek and the Company's efforts to reduce administrative expenses, the Company terminated 14 employees in November 1996. The Company needs additional financing in order to commence gold production at Illinois Creek. The company filed a preliminary prospectus with the Ontario Securities Commission in Canada on November 1, 1996 and a Registration Statement with Securities and Exchange Commission in the United States relating to a proposed public offering of its common stock. The offering will be made only by means of a prospectus. Subject to obtaining additional adequate financing and the successful test of the liner, the Company forecasts commencing start-up activities in the spring of 1997. In July 1996, the Company entered into Credit Agreements with N M Rothschild & Sons Limited ("Rothschild") for a $22,000,000 facility to partially finance the development of the Project. Among other things, the Company agreed to make a $1,500,000 equity contribution by September 30, 1996 to its subsidiary which is the owner of the Project. The Company was unable to comply with this requirement. The Company also agreed in its Credit Agreements with Rothschild that it would not permit its (a) current ratio to be less than 2.0 to 1.0; (b) consolidated tangible shareholders' equity to be less than $17,500,000; and (c) total consolidated liabilities to exceed 175% of its consolidated tangible shareholders' equity. Rothschild has agreed with the Company to waive these conditions and to not take any actions until December 31, 1996 due to the Company's inability to meet these requirements, conditioned upon the Company's agreements to, among other things, file a prospectus by November 1, 1996 with appropriate securities regulatory authorities in Canada and complete an offering in which the Company receives net proceeds of no less than $9,000,000 by December 31, 1996, adjust the price which Rothschild may elect to convert its $2,500,000 loan into the Company's common stock to the price of which the shares are sold in the public offering (or in an earlier private placement) and to pay to Rothschild a fee of $100,000 which fee is payable from the proceeds of the public offering. In addition, the Company agreed that of the $7,500,000 then on deposit in a special Proceeds Account for use on Project expenditures, approximately $2,400,000 would be distributed to pay accounts payable, approximately $4,500,000 would be transferred back to Rothschild and available to be advanced in accordance with the Credit Agreements and approximately $600,000 would remain in the Proceeds Account and available for disbursement in accordance with the Credit Agreements. As of the date of this Report, the $2,400,000 has been distributed to pay accounts payable and approximately $3.8 million of the $4,500,000 has been disbursed in connection with the Project. The Company also greed that it would establish an additional proceeds account with its presently available cash and disburse these funds in accordance with a budget agreed to by Rothschild. The Company also agreed to establish arrangements for the monitoring by Rothschild of completion of the Project and payment of associated costs. The Company and Rothschild have agreed that an amended development plan for the Project will be submitted by the Company for Rothschild's approval by December 2, 1996. If the Company is unable to meet the conditions in its amended Credit Agreements with Rothschild or to otherwise maintain compliance with its credit obligations to Rothschild, it risks a possible foreclosure of Rothschild's security interest in the Project and legal action for monetary damages against the Company. The Company does not presently have capital resources available to satisfy its obligations to Rothschild. Accordingly, if the Company's proposed public offering is unsuccessful, the Company would need to obtain other financing or attempt to merge or engage in another form of business combination with an entity with available cash resources. The Company has made no such arrangements and there can be no assurance that the Company would be successful in obtaining any such arrangements. Item 7. Financial Statements and Exhibits (c) Exhibits. 10(a) First Amendment to USMX, INC. Credit Agreement, dated as of November 15, 1996, by and between USMX, INC. and N M Rothschild & Sons Limited 10(b) First Amendment to credit Agreement, dated as of November 15, 1996, between USMX OF ALASKA, INC. and N M Rothschild & Sons Limited 10(c) Guarantor's Acknowledgment of First Amendment to USMX OF ALASKA, INC. Credit Agreement dated November 15, 1996 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. USMX, INC. (Registrant) Date: November 20, 1996 By:/s/ Donald E. Nilson -------------------------------- Donald E. Nilson, Vice President Finance, Chief Financial Officer and Secretary EX-10.A 2 FIRST AMENDMENT TO CREDIT AGREEMENT THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "USMX Amendment") is made and entered into as of November __, 1996, by and between N M ROTHSCHILD & SONS LIMITED, a company organized and existing under the laws of England with an address at New Court, St. Swithin's Lane, London EC4P 4DU ("Lender"), and USMX, INC., a company organized and existing under the laws of Delaware with an address at 141 Union Blvd., Suite 100, Lakewood, Colorado 80228 ("USMX") pursuant to Section 11.1 of that certain Credit Agreement dated as of July 11, 1996, between Lender and USMX (the "USMX Credit Agreement"). R E C I T A L S I. Pursuant to the USMX Credit Agreement, Lender agreed, under certain terms and conditions, to loan to USMX $2,500,000 to be used to finance the construction and initial operation of the Illinois Creek, Alaska gold mining facility. II. USMX OF ALASKA, INC., a Alaska corporation and wholly-owned subsidiary of USMX ("USMXAK"), entered into a separate Credit Agreement dated as of July 11, 1996, between Lender and USMXAK (the "AK Credit Agreement") pursuant to which Lender has agreed, under certain terms and conditions, to loan to USMXAK up to $19,500,000. III. USMX has executed a Guaranty, dated as of July 11, 1996 (the "Guaranty"), in favor of Lender pursuant to which USMX guarantees the obligations of USMXAK to Lender under the AK Credit Agreement and the other Loan Documents. IV. The following Events of Default are known to Lender to be currently outstanding under the AK Credit Agreement and the USMX Credit Agreement and under the other Loan Documents: A. USMX has failed to make an additional equity contribution of $1,500,000 to USMXAK as required by Section 10 of the Guaranty; and B. USMX is not in compliance with the financial covenants set forth in Section 11 of the Guaranty. V. Lender, USMX and USMXAK have entered into that certain Letter Agreement, dated October 29, 1996 (the "Letter Agreement") pursuant to which Lender has agreed to waive until December 31, 1996 the defaults listed in (A) and (B) of Recital IV above (the "Waived Defaults") in exchange for certain actions, agreements and undertakings by USMX and USMXAK, including the execution and delivery to Lender of this USMX Amendment and the First Amendment to the AK Credit Agreement, dated the date hereof, by and between USMXAK and Lender, and the documents and agreements contemplated by those two amendments (together, the "Waiver Documents"). A G R E E M E N T NOW, THEREFORE, in consideration of the mutual provisions set forth below, the parties agree as follows: A. Definitions. Capitalized terms used herein but not otherwise defined shall have the meanings given thereto in the USMX Credit Agreement. B. Status of Loan Documents. USMX reaffirms its liability for all of the obligations evidenced or secured by the Loan Documents, and acknowledges that USMX has no defenses to enforcement of the Loan Documents in accordance with their respective terms and no basis for asserting any offset or other claim against Lender. C. Amendment of Credit Agreement. The USMX Credit Agreement is hereby amended as follows: 1. The list of Exhibits on page iv is hereby amended by the addition, in alphabetical order, of the following: Exhibit J Form of Escrow Agreement Exhibit K Escrow Account Disbursement Schedule 2. The list of Schedules on page iv is hereby amended by the addition, in numerical order, of the following: Schedule 7.13 Escrow Account Disbursement Schedule 3. Section 1.1 is hereby amended by the addition, in alphabetical order, of the following terms: "Canadian Offering" shall have the meaning specified in Section 7.12. "Escrow Account" shall have the meaning specified in Section 7.13. "Escrow Agreement" shall have the meaning specified in Section 7.13. "First Amendment Fee" shall have the meaning specified in Section 2.3(c). 4. The definition of "Conversion Price" in Section 1.1 is hereby amended and restated to read in its entirety as follows: "Conversion Price" means (i) the U.S. dollar equivalent price per share at which shares of common stock of USMX are sold to the public in the Canadian Offering (or any other sale of USMX's shares deemed by Lender to satisfy USMX's obligations under Section 7.12), or (ii) in the absence of sales satisfying part (i) hereof, at the average closing market price of USMX's common stock quoted by NASDAQ for the ten (10) Trading Days preceding December 31, 1996. 5. A new Section 2.3(c) is hereby added to read in its entirety as follows: (c) First Amendment Fee. In consideration of Lender agreeing to enter into the First Amendment to this Agreement and the other documents and agreements executed and delivered by Lender related to such First Amendment, USMX, jointly and severally with AK, agrees to pay Lender a fee in the amount of $100,000 (the "First Amendment Fee"), which fee shall be payable on the first to occur of (i) the offer and sale of equity interests of USMX required by Section 7.12(a) hereof; (ii) April 15, 1997; or (iii) such other time as the First Amendment Fee can be paid by either AK or USMX without reducing working capital available to AK to an amount less than required by AK for its continued operations, in the reasonable judgement of Lender. The First Amendment Fee is in addition to all other fees, expenses and reimbursements paid or required to be paid by AK or USMX to Lender. 6. Section 3.3(b) is hereby amended and restated in its entirety to read as follows: (b) Interest Periods. USMX may select an interest period with respect to the Loan ("Interest Period") of 30, 90 or 180 days, or of such other period of days as may be agreed to by Lender in its sole discretion, on a 360-day year basis. USMX will select Interest Periods by giving notice to Lender in the Request for Advance and thereafter at least three Business Days prior to the expiration of the Interest Period then in effect by an Interest Period Notice. If at any time USMX fails to give timely notice of its Interest Period selection, then USMX shall be deemed to have selected an Interest Period of 30 days. No Interest Period shall end after the Scheduled Maturity Date. Interest will be payable in full at the end of each Interest Period, provided that accrued interest will be payable every ninety (90) days for Interest Periods greater than 90 days. 7. A new Section 7.12 is hereby added to read in its entirety as follows: 7.12 Public Offering. USMX shall accomplish the following with respect to the offer and sale of shares of its common stock: (a) Not later than November 1, 1996, USMX will have prepared and have filed with the appropriate securities authorities in Canada an offering prospectus for a public offering in Canada of its common stock (the "Canadian Offering"), designed to result in net proceeds (consisting of gross proceeds received by USMX from the Canadian Offering, less all costs, expenses and fees payable by USMX associated with the Canadian Offering) to USMX of not less than U.S.$9,000,000; (b) Not later than November 1, 1996, USMX will cause the lead underwriter of the Canadian Offering to provide to Lender a comfort letter addressed to Lender stating that such lead underwriter believes that the Canadian Offering as described in clause (a) above can be successfully completed by December 31, 1996; (c) Not later than December 31, 1996, USMX shall complete the Canadian Offering and immediately thereafter shall take the following actions: (i) Contribute U.S.$1,500,000 to AK and cause AK to immediately deposit such amount in the AK Proceeds Account; (ii) Pay, or cause AK to pay, the First Amendment Fee, if not previously paid; (iii) Contribute sufficient funds to AK to: (1) enable AK to achieve Completion in the manner and time frame envisioned by the Development Plan, (2) permit AK to satisfy all of the financial covenants and ratios required by the Loan Documents, and (3) provide AK with sufficient working capital to operate the mine in the manner contemplated by the Development Plan; (d) In the event USMX sells any equity securities other than pursuant to the Canadian Offering, or sells any material portion of its assets (other than its interest in the Montana Tunnels Mine) other than in the ordinary course of its business, USMX shall contribute fifty percent (50%) of the first $1,000,000 of the net proceeds of such sale, and all of the net proceeds of such sale in excess of $1,000,000, to AK and shall cause AK to deposit such proceeds in the Proceeds Account, until a total of $1,500,000 has been deposited thereto by AK. 8. A new Section 7.13 is hereby added to read in its entirety as follows: 7.13 Escrow Account. Concurrently herewith, USMX will (i) establish an escrow account (the "Escrow Account") and execute and deliver an Escrow Agreement related thereto in the form of Exhibit J; and (ii) deposit $925,000 to such account. Distributions from the Escrow Account shall be made pursuant to the Escrow Account Disbursement Schedule and as otherwise provided in the Escrow Agreement. 9. Section 11.4 is hereby amended by changing each use of the word "Agreement" to read "Agreement (and any amendment to this Agreement)". D. Reaffirmation. USMX hereby reaffirms each representation, warranty, and covenant contained in the USMX Credit Agreement with the same force and effect as if each were separately stated herein and made as of the date hereof, except (i) for such made as of a certain date, which are hereby reaffirmed as of such date, and (ii) to the extent of any variance therefrom disclosed on Exhibit A to the Omnibus Certificate supplied to Lender pursuant to Paragraph H.3 hereof. E. Title Matters. USMX represents and warrants to Lender that, except as previously disclosed to Lender, it is the sole owner of the AK Shares free and clear of all material defects of title or Liens except as have previously been permitted by Lender. F. Default Under Loan Documents. USMX acknowledges and agrees that any Default by USMX under this USMX Amendment shall constitute a Default under each of the Loan Documents, entitling Lender to exercise any or all rights and remedies provided for in the Loan Documents. Lender's execution and delivery of this USMX Amendment shall not be construed as a waiver of any presently-existing Default under any of the Loan Documents, whether or not such Default is known to Lender, except that compliance by USMX with the Waived Defaults is hereby waived by Lender until December 31, 1996. G. Ratification of Credit Agreement. As modified by this USMX Amendment, the USMX Credit Agreement is in all respects ratified, approved and confirmed, and as so amended, shall remain in full force and effect. From and after the date hereof, all references to the Credit Agreement in any Loan Document or in any Waiver Document shall be references to the USMX Credit Agreement as amended by this USMX Amendment. H. Conditions Precedent. The obligations of the Lender under this USMX Amendment or the other Wavier Documents, including specifically the waiver until December 31, 1996 of the Waived Defaults, are, in addition to the conditions precedent specified in Section 5.1 of the USMX Credit Agreement, subject to the following conditions precedent, wherein each document to be delivered to the Lender will be in form and substance satisfactory to the Lender: 1. Closing. The execution and delivery of each the Waiver Documents shall have occurred on or before November 15, 1996, or such later date as agreed to by Lender in its sole discretion. 2. Escrow Account. The Escrow Account required by Section 7.13 of the USMX Credit Agreement shall have been established and $925,000 shall have been deposited into that account by USMX. 3. Omnibus Certificate. Lender shall have received a certificate, signed by the chief executive officer of the USMX, in the form attached hereto as Attachment 1. 4. Opinion of USMX's Counsel. Lender shall have received the opinion of counsel to USMX and USMXAK in the form attached hereto as Attachment 2. 5. Waivers and Consents. USMX shall have obtained all waivers and consents necessary or desirable to enable it to enter into this USMX Amendment and the other Waiver Documents. 6. Other Conditions. All conditions precedent under each of the other Waiver Documents shall be satisfied as determined by Lender in its sole discretion. I. Successors and Assigns. Nothing in this USMX Amendment shall be construed as waiving or modifying any provision of the AK Credit Agreement prohibiting transfer of the Mining Properties without the prior written consent of Lender, or making any such transfer a Default under the AK Credit Agreement. Subject to the preceding sentence, this USMX Amendment shall bind and benefit the parties and their respective heirs, personal representatives, successors and assigns. J. Governing Law; Severability; Merger. This USMX Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. Wherever possible, each provision of the Loan Documents is to be interpreted so as to be effective and valid under applicable law. If any provision of any Loan Document is for any reason and to any extent, invalid or unenforceable, then neither the remainder of the Loan Document in which such provision appears, nor any other Loan Document, nor the application of the provisions to other persons or entities or in other circumstances, shall be affected by such invalidity or unenforceability. The USMX Credit Agreement, together with the other Loan Documents, all as amended and modified by the Waiver Documents, represent the final agreement between the parties pertaining to the subject matter thereof. K. Execution in Counterparts. This USMX Amendment may be executed in two or more counterparts, all of which shall, upon execution of identical counterparts by all parties, constitute a single agreement. Lender and its attorneys are authorized to remove and reattach signature and acknowledgement pages of various counterparts in order to avoid unnecessary recording and copying expense and to provide fully-executed counterparts to each party. Signed and delivered as of the date first mentioned above. USMX USMX, INC. By: Donald P. Bellum President LENDER PER PRO N M ROTHSCHILD & SONS LIMITED EX-10.B 3 FIRST AMENDMENT TO CREDIT AGREEMENT THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "AK Amendment") is made and entered into as of November __, 1996, by and between N M ROTHSCHILD & SONS LIMITED, a company organized and existing under the laws of England with an address at New Court, St. Swithin's Lane, London EC4P 4DU ("Lender"), and USMX OF ALASKA, INC., a company organized and existing under the laws of Alaska with an address at 141 Union Blvd., Suite 100, Lakewood, Colorado 80228 ("Borrower") pursuant to Section 11.1 of that certain Credit Agreement dated as of July 11, 1996, between Lender and Borrower (the "AK Credit Agreement"). R E C I T A L S I. Pursuant to the AK Credit Agreement, Lender agreed, under certain terms and conditions, to loan to Borrower up to $19,500,000 to be used to finance the construction and initial operation of the Illinois Creek, Alaska gold mining facility. II. USMX, INC., a Delaware corporation and sole shareholder of Borrower ("USMX"), has (i) executed a Guaranty, dated as of July 11, 1996 (the "Guaranty"), in favor of Lender pursuant to which USMX guarantees the obligations of Borrower to Lender under the AK Credit Agreement and the other Loan Documents; and (ii) entered into a separate Credit Agreement, dated as of July 11, 1996, between Lender and USMX (the "USMX Credit Agreement") pursuant to which Lender has agreed, under certain terms and conditions, to loan to USMX $2,500,000. III. The following Events of Default are known to Lender to be currently outstanding under the AK Credit Agreement, the Guaranty and the USMX Credit Agreement and under the other Loan Documents: (1) USMX has failed to make an additional equity contribution of $1,500,000 to Borrower as required by Section 10 of the Guaranty; and (2) USMX is not in compliance with the financial covenants set forth in Section 11 of the Guaranty. IV. Lender, Borrower and USMX have entered into that certain Letter Agreement, dated October 29, 1996 (the "Letter Agreement"), pursuant to which Lender has agreed to waive until December 31, 1996 the Defaults listed in (1) and (2) of Recital III (the "Waived Defaults") in exchange for certain actions, agreements and undertakings by Borrower and USMX, including the execution and delivery to Lender of this AK Amendment and the First Amendment to USMX Credit Agreement, dated the date hereof, by and between USMX and Lender, and the documents and agreements contemplated by those two amendments (together, the "Waiver Documents"). A G R E E M E N T NOW, THEREFORE, in consideration of the mutual provisions set forth below, the parties agree as follows: A. Definitions. Capitalized terms used herein but not otherwise defined shall have the meanings given thereto in the AK Credit Agreement. B. Status of Loan Documents. Borrower reaffirms its liability for all of the obligations evidenced or secured by the Loan Documents, and acknowledges that Borrower has no defenses to enforcement of the Loan Documents in accordance with their respective terms and no basis for asserting any offset or other claim against Lender. C. Amendment of Credit Agreement. The AK Credit Agreement is hereby amended as follows: 1. A new Section 2.3(d) is hereby added to read in its entirety as follows: (d) First Amendment Fee. In consideration of Lender agreeing to enter into the First Amendment to this Agreement and the other documents and agreements executed and delivered by Lender related to such First Amendment, Borrower, jointly and severally with USMX, agrees to pay Lender a fee in the amount of $100,000 (the "First Amendment Fee"), which fee shall be payable on the first to occur of (i) the offer and sale of equity interests of USMX required by Section 7.12(a) of the USMX Credit Agreement; (ii) April 15, 1997; or (iii) such other time as the First Amendment Fee can be paid by either Borrower or USMX without reducing working capital available to Borrower to an amount less than required by Borrower for its continued operations, in the reasonable judgement of Lender. The First Amendment Fee is in addition to all other fees, expenses and reimbursements paid or required to be paid by Borrower or USMX to Lender. 2. Section 3.5(b) is hereby amended and restated in its entirety as follows: (b) Interest Periods. Borrower may select an interest period with respect to each Advance ("Interest Period") of 30, 90 or 180 days, or of such other period of days as may be agreed to by Lender in its sole discretion, on a 360-day year basis; provided that in no event may more than three (3) different Interest Periods be in effect hereunder at any one time. Borrower will select Interest Periods by giving notice to Lender in the Request for Advance and thereafter at least three (3) Business Days prior to the expiration of the Interest Period then in effect by a Conversion/Interest Period Notice. If at any time Borrower fails to give timely notice of its Interest Period selection, then Borrower shall be deemed to have selected an Interest Period of thirty (30) days. No Interest Period shall end after the Scheduled Maturity Date. Interest will be payable in full at the end of each Interest Period, provided that accrued interest will be payable every ninety (90) days for Interest Periods greater than 90 days. 3. A new Section 3.14(d) is hereby added to read in its entirety as follows: (d) In the event that, with the prior consent of Lender (which may be given or withheld in Lender's sole discretion), Borrower sells any royalty or other interest in or to the Mining Properties or assets related thereto or production of valuable minerals therefrom (other than sales of assets or minerals in the ordinary course of Borrower's business), Borrower shall deposit in the Proceeds Account the proceeds from such sale or sales immediately upon their receipt. 4. Section 8.11 is hereby amended by appending the following two sentences to the end of that section: No later than December 2, 1996, Borrower shall have submitted to Lender a draft of an amended Development Plan reflecting the results of operations through that date and, no later than December 11, 1996, Borrower shall make such changes therein as are necessary in order to obtain the approval of Lender required by this Agreement of such amended Development Plan. Provided that such amended Development Plan meets with Lender's approval as provided by this Agreement, Lender shall grant its approval hereunder no later than December 16, 1996. 5. A new Section 8.14 is hereby added to read in its entirety as follows: 8.14 Project Monitoring. In addition to any reporting and other obligations of Borrower pursuant to this Article VIII, Borrower shall consult with Lender and its agents regarding management of the Project through Completion, with such consultations to include: (a) Instituting arrangements for monitoring by Lender and its agents of construction of the Project and initial mining through Completion, including the management thereof, and the payment of costs and expenses associated therewith; (b) Review of and, to the extent deemed necessary or desirable by Lender and its agents in Lenders sole judgement, modification of the mining, construction and other working plans related to the Project, and any budgets associated therewith, including review and modification of approved vendors, suppliers and creditors to the Project through Completion; and (c) Final decision regarding the date on which construction of the Project and mining will be suspended for the 1996-97 winter season. 6. Section 11.4 is hereby amended by changing each use of the word "Agreement" to read "Agreement (and any amendment to this Agreement)". D. Reaffirmation. Borrower hereby reaffirms each representation, warranty, and covenant contained in the AK Credit Agreement with the same force and effect as if each were separately stated herein and made as of the date hereof, except (i) for such made as of a certain date, which are hereby reaffirmed as of such date, and (ii) to the extent of any variance therefrom disclosed on Exhibit A to the Omnibus Certificate supplied to Lender pursuant to Paragraph H.3 hereof. E. Title Matters. Borrower represents and warrants to Lender that, except as previously disclosed to Lender, it is the sole owner of the Mining Properties, and that the Mining Properties are free and clear of all material defects of title or Liens except as have previously been permitted by Lender. F. Default Under Loan Documents. Borrower acknowledges and agrees that any Default by Borrower under this AK Amendment shall constitute a Default under each of the Loan Documents, entitling Lender to exercise any or all rights and remedies provided for in the Loan Documents. Lender's execution and delivery of this AK Amendment shall not be construed as a waiver of any presently-existing Default under any of the Loan Documents, whether or not such Default is known to Lender, except that compliance by Borrower with the Waived Defaults is hereby waived by Lender until December 31, 1996. G. Ratification of Credit Agreement. As modified by this AK Amendment, the AK Credit Agreement is in all respects ratified, approved and confirmed, and as so amended, shall remain in full force and effect. From and after the date hereof, all references to the Credit Agreement in any Loan Document or in any Waiver Document shall be references to the AK Credit Agreement as amended by this AK Amendment. H. Conditions Precedent. The obligations of the Lender under this AK Amendment or the other Wavier Documents, including specifically the waiver until December 31, 1996 of the Waived Defaults, are, in addition to the conditions precedent specified in Section 6.2 of the AK Credit Agreement, subject to the following conditions precedent, wherein each document to be delivered to the Lender will be in form and substance satisfactory to the Lender: 1. Closing. The execution and delivery of each of the Waiver Documents shall have occurred on or before November 15, 1996, or such later date as agreed to by Lender in its sole discretion. 2. Proceeds Account. $4,500,000 shall have been transferred from the Proceeds Account to Lender, provided that (i) Lender shall have given such consent as is required for such a disbursement by the Proceeds Account Agreement; (ii) notwithstanding the second sentence of Section 3.6(a), such $4,500,000 shall be available for Advance to Borrower after the date hereof under the terms and conditions of the AK Credit Agreement, (iii) such $4,500,000 shall be subject after the date of such transfer to Lender to the Commitment Fee in the same manner as other funds subject to the Commitment that have not been Advanced to Borrower; and (iv) nothing contained herein will relieve Borrower from its obligation to pay interest as required by the terms of the AK Credit Agreement accrued on such $4,500,000 prior to its payment to Lender. 3. Omnibus Certificate. Lender shall have received a certificate, signed by the chief executive officer of the Borrower, in the form attached hereto as Attachment 1. 4. Opinion of Borrower's Counsel. Lender shall have received the opinion of counsel to Borrower and USMX in the form attached hereto as Attachment 2. 5. Acknowledgement from Guarantor. Lender shall have received the Guarantor's Acknowledgement, executed and delivered by USMX, in the form attached hereto as Attachment 3. 6. Waivers and Consents. Borrower shall have obtained all waivers and consents necessary or desirable to enable it to enter into this AK Amendment and the other Waiver Documents. 7. Other Conditions. All conditions precedent under each of the other Waiver Documents shall be satisfied as determined by Lender in its sole discretion. I. Successors and Assigns. Nothing in this AK Amendment shall be construed as waiving or modifying any provision of the AK Credit Agreement prohibiting transfer of the Mining Properties without the prior written consent of Lender, or making any such transfer a Default under the AK Credit Agreement. Subject to the preceding sentence, this AK Amendment shall bind and benefit the parties and their respective heirs, personal representatives, successors and assigns. J. Governing Law; Severability; Merger. This AK Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. Wherever possible, each provision of the Loan Documents is to be interpreted so as to be effective and valid under applicable law. If any provision of any Loan Document is for any reason and to any extent, invalid or unenforceable, then neither the remainder of the Loan Document in which such provision appears, nor any other Loan Document, nor the application of the provisions to other persons or entities or in other circumstances, shall be affected by such invalidity or unenforceability. The AK Credit Agreement, together with the other Loan Documents, all as amended and modified by the Waiver Documents, represent the final agreement between the parties pertaining to the subject matter thereof. K. Execution in Counterparts. This AK Amendment may be executed in two or more counterparts, all of which shall, upon execution of identical counterparts by all parties, constitute a single agreement. Lender and its attorneys are authorized to remove and reattach signature and acknowledgement pages of various counterparts in order to avoid unnecessary recording and copying expense and to provide fully-executed counterparts to each party. Signed and delivered as of the date first mentioned above. BORROWER USMX OF ALASKA, INC. By: Name: Title: LENDER PER PRO N M ROTHSCHILD & SONS LIMITED EX-10.C 4 GUARANTOR'S ACKNOWLEDGEMENT OF FIRST AMENDMENT TO USMX OF ALASKA, INC. CREDIT AGREEMENT USMX, INC, a Delaware corporation ("USMX") and Guarantor pursuant to that certain Guaranty (the "Guaranty") by USMX for the benefit of N M ROTHSCHILD & SONS LIMITED, a company organized and existing under the laws of England ("Lender"), Guarantor of the obligations of USMX OF ALASKA, INC., a company organized and existing under the laws of Alaska ("AK"), under that certain Credit Agreement dated as of July 11, 1996, between Lender and AK (the "AK Credit Agreement"), hereby acknowledges the FIRST AMENDMENT TO CREDIT AGREEMENT made and entered into as of November 15, 1996, by and between Lender and AK (the "AK Amendment") and ratifies and confirms the Guaranty, which shall remain in full force and effect. USMX hereby further agrees that, as provided by the Guaranty, USMX's liabilities and obligations relative to the Guaranteed Obligations (as defined in the Guaranty and as such obligations shall be modified from time to time by agreement of Lender and AK) shall not be limited, diminished, released, discharged or reduced in any way by the AK Amendment, and USMX remains fully bound under the Guaranty for the Guaranteed Obligations. Signed and delivered as of this 15th day of November, 1996. USMX USMX, INC. By: Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----