Default Option. (a) Subject to paragraph 6(b) below, prior to any Transfer by the Secured Party to a Third Party pursuant to the exercise of its rights and remedies under the Finance Documents and applicable law, the Secured Party shall have given notice pursuant to this paragraph 6(a) and Kinross shall have been afforded the opportunity of exercising its rights under paragraph 6(g). The Secured Party may, at any time that an Event of Default has occurred and is continuing under, and as defined in, the Facility Agreement, deliver to Kinross notice of such Event of Default (a “Notice of Default”), together with a certificate signed by a representative of the Secured Party certifying that an Event of Default has occurred and is continuing under, and as defined in, the Facility Agreement. If the Secured Party has delivered to Kinross a Notice of Default, then the Secured Party shall promptly deliver to Kinross notice if such Event of Default is no longer continuing (a “Notice of Revocation”). (b) Upon receipt of a Notice of Default and unless and until a Notice of Revocation is given, no Kinross Partner shall have the right to exercise its Default Option pursuant to Section 9.2(1)(a) of the Partnership Agreement (and for greater certainty, no obligation for the General Partner to appoint the Partnership Independent Valuator shall arise), provided that if a Kinross Partner has issued a notice pursuant to Section 9.2(1)(a) of the Partnership Agreement exercising its Default Option prior to the Notice of Default being delivered to Kinross and the Partnership Independent Valuator has been appointed, and such notice has not expired or been revoked by Kinross, then: (i) Kinross shall promptly notify the Secured Party to that effect upon receipt of the Notice of Default (if it has not already done so pursuant to paragraph 2(b) above); (ii) subject to paragraph 6(b)(v) below, that Notice of Default shall have no force or effect in relation to any Kinross Partner, and as a result no Transfer to a Third Party of either the ROFR Offered Interest or the GP Interest pursuant to paragraphs 3(a) or 3(b) may take place while the Partnership Independent Valuator is carrying out its valuation or during the related LPA Determination Period or, to the extent it arises, the LPA Transfer Period (each as defined below); (iii) such Kinross Partner shall be entitled to complete the contemplated Transfer pursuant to Article 9 of the Partnership Agreement, provided that the Kinross Partner, notwithstanding Section 9.2(1)(a)(i) of the Partnership Agreement, shall have: (A) either: (I) a period of 30 days commencing on the date of delivery of the applicable Partnership FMV Report, or (II) if when the Notice of Default is delivered by the Secured Party, the Partnership FMV report has already been delivered, a period commencing on the date of receipt of the Notice of Default and ending on the earlier of (x) the day falling 30 days after the date of receipt by the Kinross Partner of the Notice of Default and (y) the last day of the 180 day period referred to in Section 9.2(1)(a)(i) of the Partnership Agreement, (that period being the "LPA Determination Period") to determine whether it wishes to exercise its Default Option in respect of the whole of the Total Interest of the HW Partners and to give written notice of its decision in such 30 day period (the "Partnership Default Option Notice") to the HW Partners and the Secured Party, after which period each Kinross Partner shall cease to have the right to exercise the Default Option; and (B) if it has decided to exercise the Default Option and has given the Partnership Default Option Notice (confirming that it wishes to exercise the Default Option) within the LPA Determination Period, a further period of 30 days commencing on the date of the Partnership Default Option Notice to complete the Transfer of the same (the "LPA Transfer Period") after which period any purported Transfer pursuant to Section 9.3 of the Partnership Agreement shall not be effective in respect of such Default Option; (iv) the remaining provisions of this paragraph 6 (including for greater certainty the obligation to appoint the Independent Valuator in paragraph 6(c) and the rights of any Kinross Partner in paragraph 6(g)) shall cease to be applicable in respect of either the exercise of the Default Option or the Notice of Default (if subsequently in effect pursuant to paragraph 6(b)(v) below); for greater certainty, this shall be the case even in the event that that any Kinross Partner subsequently either notifies the Secured Party that it has decided not to proceed with the exercise of its rights under Section 9.2(1)(a) of the Partnership Agreement, or fails to complete the Transfer in the applicable LPA Transfer Period pursuant to the exercise of such rights; (v) in the event that the Kinross Partner in question subsequently either notifies the Secured Party that it has decided not to proceed with the exercise of its rights under Section 9.2(1)(a) of the Partnership Agreement, or fails to complete the Transfer pursuant to the exercise of such rights in the applicable LPA Transfer Period, the Secured Party may proceed with any sale of the ROFR Offered Interest and the GP Interest pursuant to the remaining provisions of Sections 3(a) and/or 3(b), but without any further requirement to comply with the provisions of this paragraph 6. Kinross shall provide prompt written notification to the Secured Party of any such determination by a Kinross Partner that it does not wish to proceed any further with the exercise of its rights under Section 9.2(1)(a) of the Partnership Agreement. (c) Subject to paragraph (b) above, promptly after a Notice of Default has been given and provided that a Notice of Revocation has not been given, the Secured Party shall appoint as an independent valuator, an investment bank, accounting firm or other firm with recognized business valuation credentials that is independent of the parties and which has experience in valuing mining businesses (the “Independent Valuator”) acceptable to Kinross (which acceptance shall not be unreasonably withheld, conditioned or delayed). Any Independent Valuator appointed pursuant to this paragraph 6(c) shall be required, as a condition of its retention, to provide the Secured Party and Kinross with its determination of Fair Market Value of the HW Group Interest within 45 days following its appointment. The Secured Party shall deliver to Kinross, promptly upon receipt by the Secured Party, the report of the Independent Valuator prepared pursuant to this paragraph 6(c). If the report of the Independent Valuator specifies a range of values in its determination of Fair Market Value of the HW Group Interest, then the Fair Market Value of the HW Group Interest shall be the midpoint of the range of such values. (d) The Secured Party, Kinross, its Related Entities and HWDLP shall in all respects co- operate with the Independent Valuator in its determination of Fair Market Value of the HW Group Interest. Such co-operation shall include access to the books and records of HWDLP. The determination of Fair Market Value by the Independent Valuator shall be, for purposes of this Agreement, final, conclusive and binding. (e) All fees, disbursements and other costs and expenses associated with the determination of Fair Market Value of the HW Group Interest by the Independent Valuator in accordance with the provisions hereof shall be borne by the Secured Party. (f) If the Independent Valuator shall have provided a report determining the Fair Market Value for purposes of this Agreement or the Partnership Agreement as at a date which is within six months of the subsequent date for determination of the Fair Market Value of the HW Group Interest, provided that such report may be disclosed, on a reliance basis, to the Secured Party, such report shall be deemed to be the report required to be delivered pursuant to paragraph 6(c) and the Fair Market Value of the HW Group Interest for the purposes of this Agreement shall be deemed to be the Fair Market Value of the HW Group Interest previously determined in such report. (g) Unless a Notice of Revocation has been given, or, if a Notice of Revocation has been given but a Partnership Event of Default has occurred and is continuing, Kinross shall have the right to elect, by notice in writing (the “Default Option Notice”) given to the Secured Party within 30 days of delivery by the Secured Party to Kinross pursuant to paragraph 6(c) of the report of the Independent Valuator establishing Fair Market Value of the HW Group Interest (the “Valuation” and such 30 day period, the “Default Option Exercise Period”), to purchase all, but not less than all, of the HW Group Interest for 80% of the Fair Market Value (the “Default Option Purchase Price”).
Appears in 1 contract
Default Option. (a) Subject to paragraph 6(b) below, prior to any Transfer by the Secured Party to a Third Party pursuant to the exercise of its rights and remedies under the Finance Documents and applicable law, the Secured Party shall have given notice pursuant to this paragraph 6(a) and Kinross shall have been afforded the opportunity of exercising its rights under paragraph 6(g). The Secured Party may, at any time that an Event of Default has occurred and is continuing under, and as defined in, the Facility Agreement, deliver to Kinross notice of such Event of Default (a “Notice of Default”), together with a certificate signed by a representative of the Secured Party certifying that an Event of Default has occurred and is continuing under, and as defined in, the Facility Agreement. If the Secured Party has delivered to Kinross a Notice of Default, then the Secured Party shall promptly deliver to Kinross notice if such Event of Default is no longer continuing (a “Notice of Revocation”).
(b) Upon receipt of a Notice of Default and unless and until a Notice of Revocation is given, no Kinross Partner shall have the right to exercise its Default Option pursuant to Section 9.2(1)(a) of the Partnership Agreement (and for greater certainty, no obligation for the General Partner to appoint the Partnership Independent Valuator shall arise), provided that if a Kinross Partner has issued a notice pursuant to Section 9.2(1)(a) of the Partnership Agreement exercising its Default Option prior to the Notice of Default being delivered to Kinross and the Partnership Independent Valuator has been appointed, and such notice has not expired or been revoked by Kinross, then:
(i) Kinross shall promptly notify the Secured Party to that effect upon receipt of the Notice of Default (if it has not already done so pursuant to paragraph 2(b) above);
(ii) subject to paragraph 6(b)(v) below, that Notice of Default shall have no force or effect in relation to any Kinross Partner, and as a result no Transfer to a Third Party of either the ROFR Offered Interest or the GP Interest pursuant to paragraphs 3(a) or 3(b) may take place while the Partnership Independent Valuator is carrying out its valuation or during the related LPA Determination Period or, to the extent it arises, the LPA Transfer Period (each as defined below);
(iii) such Kinross Partner shall be entitled to complete the contemplated Transfer pursuant to Article 9 of the Partnership Agreement, provided that the Kinross Partner, notwithstanding Section 9.2(1)(a)(i) of the Partnership Agreement, shall have:
(A) either:
(I) a period of 30 days commencing on the date of delivery of the applicable Partnership FMV Report, or
(II) if when the Notice of Default is delivered by the Secured Party, the Partnership FMV report has already been delivered, a period commencing on the date of receipt of the Notice of Default and ending on the earlier of (x) the day falling 30 days after the date of receipt by the Kinross Partner of the Notice of Default and (y) the last day of the 180 day period referred to in Section 9.2(1)(a)(i) of the Partnership Agreement, (that period being the "LPA Determination Period") to determine whether it wishes to exercise its Default Option in respect of the whole of the Total Interest of the HW Partners and to give written notice of its decision in such 30 day period (the "Partnership Default Option Notice") to the HW Partners and the Secured Party, after which period each Kinross Partner shall cease to have the right to exercise the Default Option; and
(B) if it has decided to exercise the Default Option and has given the Partnership Default Option Notice (confirming that it wishes to exercise the Default Option) within the LPA Determination Period, a further period of 30 days commencing on the date of the Partnership Default Option Notice to complete the Transfer of the same (the "LPA Transfer Period") after which period any purported Transfer pursuant to Section 9.3 of the Partnership Agreement shall not be effective in respect of such Default Option;
(iv) the remaining provisions of this paragraph 6 (including for greater certainty the obligation to appoint the Independent Valuator in paragraph 6(c) and the rights of any Kinross Partner in paragraph 6(g)) shall cease to be applicable in respect of either the exercise of the Default Option or the Notice of Default (if subsequently in effect pursuant to paragraph 6(b)(v) below); for greater certainty, this shall be the case even in the event that that any Kinross Partner subsequently either notifies the Secured Party that it has decided not to proceed with the exercise of its rights under Section 9.2(1)(a) of the Partnership Agreement, or fails to complete the Transfer in the applicable LPA Transfer Period pursuant to the exercise of such rights;
(v) in the event that the Kinross Partner in question subsequently either notifies the Secured Party that it has decided not to proceed with the exercise of its rights under Section 9.2(1)(a) of the Partnership Agreement, or fails to complete the Transfer pursuant to the exercise of such rights in the applicable LPA Transfer Period, the Secured Party may proceed with any sale of the ROFR Offered Interest and the GP Interest pursuant to the remaining provisions of Sections 3(a) and/or 3(b), but without any further requirement to comply with the provisions of this paragraph 6. Kinross shall provide prompt written notification to the Secured Party of any such determination by a Kinross Partner that it does not wish to proceed any further with the exercise of its rights under Section 9.2(1)(a) of the Partnership Agreement.
(c) Subject to paragraph (b) above, promptly after a Notice of Default has been given and provided that a Notice of Revocation has not been given, the Secured Party shall appoint as an independent valuator, an investment bank, accounting firm or other firm with recognized business valuation credentials that is independent of the parties and which has experience in valuing mining businesses (the “Independent Valuator”) acceptable to Kinross (which acceptance shall not be unreasonably withheld, conditioned or delayed). Any Independent Valuator appointed pursuant to this paragraph 6(c) shall be required, as a condition of its retention, to provide the Secured Party and Kinross with its determination of Fair Market Value of the HW Group Interest within 45 days following its appointment. The Secured Party shall deliver to Kinross, promptly upon receipt by the Secured Party, the report of the Independent Valuator prepared pursuant to this paragraph 6(c). If the report of the Independent Valuator specifies a range of values in its determination of Fair Market Value of the HW Group Interest, then the Fair Market Value of the HW Group Interest shall be the midpoint of the range of such values.
(d) The Secured Party, Kinross, its Related Entities and HWDLP shall in all respects co- operate with the Independent Valuator in its determination of Fair Market Value of the HW Group Interest. Such co-operation shall include access to the books and records of HWDLP. The determination of Fair Market Value by the Independent Valuator shall be, for purposes of this Agreement, final, conclusive and binding.
(e) All fees, disbursements and other costs and expenses associated with the determination of Fair Market Value of the HW Group Interest by the Independent Valuator in accordance with the provisions hereof shall be borne by the Secured Party.
(f) If the Independent Valuator shall have provided a report determining the Fair Market Value for purposes of this Agreement or the Partnership Agreement as at a date which is within six months of the subsequent date for determination of the Fair Market Value of the HW Group Interest, provided that such report may be disclosed, on a reliance basis, to the Secured Party, such report shall be deemed to be the report required to be delivered pursuant to paragraph 6(c) and the Fair Market Value of the HW Group Interest for the purposes of this Agreement shall be deemed to be the Fair Market Value of the HW Group Interest previously determined in such report.
(g) Unless a Notice of Revocation has been given, or, if a Notice of Revocation has been given but a Partnership Event of Default has occurred and is continuing, Kinross shall have the right to elect, by notice in writing (the “Default Option Notice”) given to the Secured Party within 30 days of delivery by the Secured Party to Kinross pursuant to paragraph 6(c) of the report of the Independent Valuator establishing Fair Market Value of the HW Group Interest (the “Valuation” and such 30 day period, the “Default Option Exercise Period”), to purchase all, but not less than all, of the HW Group Interest for 80% of the Fair Market Value (the “Default Option Purchase Price”).
Appears in 1 contract