DENISON MINES INC. as Borrower and DENISON MINES CORP. as Guarantor and THE BANK OF NOVA SCOTIA as Sole Lead Arranger and Bookrunner and THE BANK OF NOVA SCOTIA as Administrative Agent and The Several Lenders from time to time Party thereto
Exhibit 99.1
Execution Version
XXXXXXX MINES INC.
as Borrower
and
XXXXXXX MINES CORP.
as Guarantor
and
THE BANK OF NOVA SCOTIA
as Sole Lead Arranger and Bookrunner
and
THE BANK OF NOVA SCOTIA
as Administrative Agent
and
The Several Lenders from time to time Party thereto
|
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
|
Dated as of January 30, 2015
Fasken
Xxxxxxxxx XxXxxxxx LLP
Toronto,
Ontario
SCHEDULE F REIMBURSEMENT
INSTRUMENT 1
FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT dated as of January 30, 2015 among Xxxxxxx Mines
Inc., a corporation amalgamated under the laws of the Province of
Ontario, as borrower (“DMI” or the “Borrower”) and Xxxxxxx Mines
Corp., a corporation amalgamated under the laws of the Province of
Ontario (the “Parent”), the lending institutions
from time to time parties hereto as Lenders (each a
“Lender” and,
collectively, the “Lenders”) and The Bank of Nova
Scotia, as Administrative Agent;
WHEREAS pursuant to a credit agreement
(as amended to June 30, 2011, the “Original Credit Agreement”) dated
as of June 30, 2008 made between DMI, as borrower, the Parent, as
guarantor, the Lender and the Administrative Agent, the Lender
established the Credit Facility (for the purpose of this recital
only, as defined in the Original Credit Agreement) in favour of
DMI.
AND WHEREAS pursuant to a credit
agreement (as amended to June 30, 2011, the “First Amended and Restated Credit
Agreement”) dated as of June 30, 2011 made between DMI
and the Parent, as borrowers, the Lender and the Administrative
Agent, the Lender established the Credit Facility (for the purpose
of this recital only, as defined in the First Amended and Restated
Credit Agreement) in favour of the DMI and the Parent.
AND WHEREAS pursuant to a credit
agreement (as amended to June 28, 2012, the “Second Amended and Restated Credit
Agreement”) dated as of June 28, 2012 made between DMI
and the Parent, as borrowers, the Lender and the Administrative
Agent, the Lender established the Credit Facility (for the purpose
of this recital only, as defined in the Second Amended and Restated
Credit Agreement) in favour of the DMI and the Parent.
AND WHEREAS pursuant to a third amended
and restated credit agreement ( the “Existing Credit Agreement”) dated
as of January 31, 2014 made between DMI and the Parent, as
borrowers, the Lender and the Administrative Agent, the Lender
established the Credit Facility (for the purpose of this recital
only, as defined in the Existing Credit Agreement) in favour of DMI
and the Parent.
AND WHEREAS the parties hereto wish to
amend and restate the Existing Credit Agreement as follows for the
purpose of, inter alia,
deleting the Parent as a borrower, increasing the amount of the
Credit Facility and extending the Maturity Date.
NOW THEREFORE THIS AGREEMENT WITNESSES
that, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the
parties hereto covenant and agree as follows:
Article 1
The following
defined terms shall for all purposes of this Agreement, or any
amendment, modification, substitution, supplement, replacement or
addition hereto, have the following respective meanings unless the
context otherwise specifies or requires or unless otherwise defined
herein:
“$” means such currency of Canada
which, as at the time of payment or determination, is legal tender
in Canada for the payment of public or private debts.
“Accommodation” means any extension
of credit by a Finance Party to the Borrower hereunder pursuant to
a Finance Document by way of a Letter of Credit.
“Acquisition” means:
(a)
a Share purchase in which the
Parent directly or indirectly, Controls the entity being acquired
immediately following the completion of such acquisition;
or
(b)
an asset purchase in which
all or substantially all of the assets of the vendor (or of a
division or unit of the vendor) are being acquired.
“Administrative Agent” means BNS,
in its capacity as administrative agent of the Lenders, and any
successor thereto pursuant to Section 14.12.
“Affiliate” means, with respect to
any specified Person, an affiliated body corporate and, for the
purposes of this Agreement, (i) one body corporate is
affiliated with another body corporate if one such body corporate
is the Subsidiary of the other or both are Subsidiaries of the same
body corporate or each of them is Controlled by the same Person and
(ii) if two bodies corporate are affiliated with the same body
corporate at the same time, they are deemed to be affiliated with
each other; for greater certainty for the purposes of this
definition, “body corporate” shall include a Canadian chartered
bank.
“Agreed Environmental Requirements”
means the set of social and environmental guidelines developed by
commercial banks and the International Finance Corporation for the
purpose of assessing and managing environmental and social issues
related to private-sector project financings, as adopted on July 3,
2006, as updated from time to time, and known as the
“Equator
Principles” and set forth in Schedule I hereto, including the World
Bank Environment, Health and Safety Guidelines for Mining and
Milling which are incorporated therein provided, for the purposes
of this Agreement, the Agreed Environmental Requirements shall be
applicable only in respect of projects (i) developed by any Company
in non-Organisation for Economic Co-operation and Development
countries or countries not designated as “High Income”
by the World Bank’s Development Indicators Database and (ii)
for which, for a period of 12 consecutive months, all licenses and
permits required pursuant to Applicable Law to permit the
extraction of minerals therefrom have been obtained.
“Applicable Law” means (a) any
domestic or foreign statute, law (including common and civil law),
treaty, code, ordinance, rule, regulation, restriction or by-law
(zoning or otherwise); (b) any judgement, order, writ, injunction,
decision, ruling, decree or award; (c) any regulatory policy,
practice, request, guideline or directive; or (d) any franchise,
licence, qualification, authorization, consent, exemption, waiver,
right, permit or other approval of any Official Body, binding on or
affecting the Person referred to in the context in which the term
is used or binding on or affecting the property of such
Person.
“Areva” means Areva Resources
Canada Inc., formerly Cogema Resources Inc., and its successors and
assigns.
“Arm's Length” has the meaning
ascribed to such term in the Tax
Act.
“Available Credit” means, at any
particular time, the amount, if any, by which the amount of the
Credit Facility at such time exceeds the amount of credit
outstanding under the Credit Facility at such time.
“Banking Day” means any day, other
than Saturday and Sunday, on which banks generally are open for
business in Xxxxxxx, Xxxxxxx.
“Basis Point” means one
one-hundredth of 1%.
“BNS” means The Bank of Nova
Scotia, a Canadian chartered bank, and its permitted successors and
assigns.
“Borrower” means Xxxxxxx Mines Inc.
and its successors and permitted assigns.
“Branch of Account” means the
Toronto main branch of the Administrative Agent located at 00 Xxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, or such other branch of the
Administrative Agent located in Canada as the Borrower and the
Administrative Agent may agree upon.
“Capital Lease”, as applied to any
Person, shall mean any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity
with International Financial Reporting Standards, is, or is
required to be, accounted for as a finance lease obligation on the
balance sheet of that Person.
“Capital Reorganization” means any
change in the terms of the issued and outstanding Shares of a
Company.
“Cash” means, at any particular
time, the aggregate of cash and Cash Equivalents of the Parent
determined on a consolidated basis at such time.
“Cash Equivalents” means (i)
securities issued or directly and fully guaranteed or insured by
the government of the United States or Canada or any agency or
instrumentality thereof with maturities of 12 months or less from
the date of acquisition, (ii) certificates of deposit, time
deposits and eurodollar time deposits with maturities of one year
or less from the date of acquisition, bankers’ acceptances
with maturities not exceeding one year and overnight bank deposits,
in each case with any commercial bank (A) incorporated in Canada or
the United States having capital and surplus in excess of
$500,000,000 or the Exchange Equivalent thereof ; and (B) having a
long term credit rating of no less than A- by S&P or the
equivalent thereof by a comparable rating agency; (iii) repurchase
obligations for underlying securities of the types described in
clauses (i) and (ii) entered into with any financial institution
meeting the qualifications specified in clause (ii) above, and (iv)
readily marketable direct obligations issued by any state or
province of either Canada or the United States or any political
subdivision thereof having one of the two highest rating categories
obtainable from two of Xxxxx’x, S&P or Dominion Bond
Rating Service with maturities of 12 months or less from the date
of acquisition.
“Cash Management Agreement” means
any cash management agreement (including any mirror netting
agreement) which a Company enters into in the ordinary course of
business with The Bank of Nova Scotia or any Affiliate
thereof.
“Cash Proceeds of
Realization” means the aggregate of (i) all
Proceeds of Realization in the form of cash and (ii) all cash
proceeds of the sale or disposition of non-cash Proceeds of
Realization.
“Change in Law” means the
occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any Applicable Law,
(b) any change in any Applicable Law or in the administration,
interpretation or application thereof by any Official Body or (c)
the making or issuance of any Applicable Law by any Official
Body.
“Commitment Letter” means
the commitment letter dated April 28, 2008 between DMI, the Parent
and The Bank of Nova Scotia but only insofar and to the extent of
matters relating to the payment of the upfront fee and annual
administrative agency fee referenced therein), as the same may be
amended, modified, supplemented or replaced from time to
time.
“Companies” means, the Parent and
all Subsidiaries of the Parent and “Company” means any of the
Companies.
“Contaminant” means any
contaminant, as defined by the EPA.
“Control” means, with respect to
control of a body corporate by a Person, the holding (other than by
way of security only) by or for the benefit of that Person, or
Affiliates of that Person, of securities of such body corporate or
the right to vote or direct the voting of securities of such body
corporate to which, in the aggregate, are attached more than 50% of
the votes that may be cast to elect directors of the body
corporate, provided that the votes attached to those securities are
sufficient, if exercised, to elect a majority of the directors of
the body corporate, and “Controlled” shall have a similar
meaning.
“Corporate
Reorganization” means any change in the legal
existence of any Company (other than a Capital Reorganization)
including by way of amalgamation, merger, winding up, continuance
or plan of arrangement.
“Credit Documents” means this Agreement, the
Commitment Letter, the Security Documents, the Postponement and
Subordination Undertaking and all instruments and agreements
executed and delivered by the Companies in favour of the Finance
Parties from time to time in connection with this Agreement or any
other Credit Document.
“Credit Excess” means, as at a
particular date and with respect to the Credit Facility, the
amount, if any, by which the aggregate amount of credit outstanding
thereunder as at the close of business on such date exceeds the
amount of the Credit Facility as at the close of business on such
date.
“Credit Facility” means the
revolving term credit facility established by the Lenders in favour
of the Borrower pursuant to Section 2.1.
“Default” means any event which is
or which, with the passage of time, the giving of notice or both,
would be an Event of Default.
“Designated Account” means, with
respect to transactions in a particular currency for the Borrower,
the account of the Borrower maintained by the Administrative Agent
at the Branch of Account for the purposes of transactions in such
currency under this Agreement.
“Distribution” means:
(a)
the declaration, payment or
setting aside for payment of any dividend or other distribution on
or in respect of any Shares in the capital of an Obligor, other
than a dividend declared, paid or set aside for payment by an
Obligor which is payable in Shares of an Obligor;
(b)
the redemption, retraction,
purchase, retirement or other acquisition, in whole or in part, of
any Shares in the capital of an Obligor or any securities,
instruments or contractual rights capable of being converted into,
exchanged or exercised for Shares in the capital of an Obligor,
including, without limitation, options, warrants, conversion or
exchange privileges and similar rights (provided the issuance of
Shares pursuant to the terms of any options, warrants, conversion
or exchange privileges or similar rights shall not be a
Distribution); and
(c)
the payment of interest or
the repayment of principal with respect to any Indebtedness of an
Obligor which is subordinated to the Indebtedness of an Obligor
under the Credit Documents.
“Draft” means any draft, xxxx of
exchange, receipt, acceptance, demand or other request for payment
drawn or issued under or in respect of a Letter.
“Drawdown Notice” shall have the
meaning ascribed thereto in Section 4.1.
“Employee Benefit Plan” means any
employee benefit plan maintained or contributed to by any Company
that are not Pension Plans, including any profit sharing, savings,
supplemental retirement, retiring allowance, severance, pension,
deferred compensation, welfare, bonus, incentive compensation,
phantom stock, supplementary unemployment benefit plan or
arrangement and any life, health, dental and disability plan or
arrangements in which the employees or former employees of any
Company participate or are eligible to participate, in each case
whether written or oral, funded or unfunded, insured or
self-insured, reported or unreported, but excluding all stock
option or stock purchase plans.
“Environmental Laws” means the
Agreed Environmental Requirements and all applicable federal,
state, provincial or local statutes, laws, ordinances, codes,
rules, regulations, decrees and orders regulating, relating to or
imposing liability or standards of conduct concerning public health
or protection of the environment (including, without limitation,
the Ontario EPA and the EPA Saskatchewan).
“EPA Ontario” means the
Environmental Protection
Act (Ontario), as amended from time to time, and any
successor statute.
“EPA Saskatchewan” means the
Environmental Management and
Protection Act, 2002 (Saskatchewan) as amended from time to
time, and any successor statute.
“Equity” means, at any particular
time, the amount which would, in accordance with International
Financial Reporting Standards, be classified on the consolidated
balance sheet of the Parent at such time as shareholders’
equity of the Parent.
“Event of Default” means any one of
the events set forth in Section 13.1.
“Exchange Equivalent” means, as of
any particular date, with reference to any amount (the
“original
amount”) expressed in a particular currency (the
“original
currency”), the amount expressed in another currency
which would be required to buy the original amount of the original
currency using the quoted spot rates at which the principal office
in Toronto of the Administrative Agent offers to provide such other
currency in exchange for such original currency at 12:00 noon
(Toronto time) on such date.
“Excluded Taxes” means, with
respect to any Finance Party or any other recipient of any payment
to be made by or on account of any obligation of an Obligor
hereunder, (a) taxes imposed on or measured by its net income, and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws
of which such recipient is organized or in which its principal
office is located or, in the case of any Finance Party, in which
its applicable lending office is located, (b) any branch profits
taxes or any similar tax imposed by any jurisdiction in which the
Finance Party is located and (c) in the case of a Foreign Lender
(other than (i) an assignee pursuant to a request by an Obligor,
(ii) an assignee pursuant to an assignment and assumption made
pursuant to Section 16.5 or (iii) any
other assignee to the extent that an Obligor has expressly agreed
that any withholding tax shall be an Indemnified Tax), any
withholding tax that (A) is not imposed or assessed in respect of
an Accommodation that was made on the premise that an exemption
from such withholding tax would be available where the exemption is
subsequently determined, or alleged by a taxing authority, not to
be available and (B) is required by Applicable Law to be withheld
or paid in respect of any amount payable hereunder or under any
Finance Document to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new lending office)
or is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply
with Section 8.6, except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to
receive additional amounts from an Obligor with respect to such
withholding tax pursuant to Section 8.6. For greater certainty, for purposes of
item (c) above, a withholding tax includes any Tax that a Foreign
Lender is required to pay pursuant to Part XIII of the Tax Act or any successor provision
thereto.
“Exposure” means, with respect to a
particular Finance Party at a particular time, the amount of the
Secured Obligations owing to such Finance Party at such time
determined by such Finance Party in good faith in accordance with
Section 14.19.
“Finance Documents” means the
Credit Documents and the Secured Risk Management
Agreements.
“Finance Parties” means the Administrative Agent,
the Lenders, the Issuing Lender and the Qualified Risk Management
Lenders.
“Fiscal Quarter” means any of the
three-month periods ending on the last day of March, June,
September and December in each Fiscal Year.
“Fiscal Year” means the
twelve-month period ending on the last day of December in each
year.
“Foreign Lender” means any Lender
that is not organized under the laws of the jurisdiction in which
the Obligors are resident for tax purposes and that is not
otherwise considered or deemed in respect of any amount payable to
it hereunder or under any Finance Document to be resident for
income tax or withholding tax purposes in the jurisdiction in which
the Obligors are resident for tax purposes by application of the
laws of that jurisdiction. For purposes of this definition Canada
and each Province and Territory thereof shall be deemed to
constitute a single jurisdiction and the United States of America,
each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
“Hazardous Materials”
means:
(a)
any petroleum product,
asbestos, polychlorinated biphenyl (PCB), natural gas, natural gas
liquids, liquefied natural gas or synthetic gas usable for fuel;
or
(b)
any pollutant or contaminant
or hazardous or toxic chemical, material or substance within the
meaning of any applicable federal, state, provincial or local law,
regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous or toxic waste,
substance or material or concerning the environment or public
health, all as in effect on the applicable date.
“Indebtedness” of any Person means,
without duplication, (i) indebtedness of such Person for
borrowed money or for the deferred purchase price of property and
services, other than trade payables incurred in the ordinary course
of business and payable in accordance with customary practices,
(ii) other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (iii) obligations
of such Person under any Capital Lease (iv) reimbursement
obligations of such Person under bankers’ acceptances and
contingent obligations of such Person in respect of any letter of
credit, bank guarantee or surety bond, (v) to the extent
accelerated, obligations of any Person under any uranium or
commodity hedging transaction, spot or forward foreign exchange
transaction, interest rate swap transaction, currency swap
transaction, forward rate transaction, rate cap transaction, rate
floor transaction, rate collar transaction, any other exchange or
rate protection, any combination of such transactions or any option
with respect to any such transaction, and (vi) the contingent
obligations of such Person under any guarantee or other agreement
assuring payment of any obligations of any Person of the type
described in the foregoing clauses (i) to (v).
“Indemnified Liabilities” has the
meaning ascribed to such term in Section 8.5(a) or Section 8.5(b), as applicable.
“Indemnified Taxes” means Taxes
other than Excluded Taxes and Other Taxes.
“Individual Commitment” means, with
respect to a particular Lender, the amount set forth in Schedule A attached hereto, as reduced or
amended from time to time pursuant to Sections 2.3, 8.3,
9.1, 9.2
and 16.5 as the individual commitment
of such Lender with respect to the Credit Facility provided that,
upon the termination of the Credit Facility pursuant to
Section 2.4, the Individual
Commitment of each Lender shall thereafter be equal to the
Individual Commitment of such Lender under the Credit Facility
immediately prior to the termination thereof.
“Intellectual Property” shall mean
all issued patents and patent applications, industrial design
registrations, trade-marks, registrations and applications
therefor, trade-names and styles, logos, copyright registrations
and applications therefor, all of the foregoing owned by or
licensed to the Companies and used in or necessary to the operation
of their respective business.
“International Financial Reporting
Standards” means the international financial reporting
standards for Canadian publicly accountable enterprises issued by
the International Accounting Standards Board.
“Investment” shall mean any
advance, loan, extension of credit or capital contribution to,
purchase of Shares, bonds, notes, debentures or other securities
of, or any other investment made in, any Person but shall exclude
any Acquisition, any acquisition of tangible personal property and
any capital or exploration expenditures or any operating
expenditures.
“Issuing Lender” means The Bank of
Nova Scotia or any other Lender selected by the Administrative
Agent and acceptable to the Borrower who assumes in writing the
obligation of issuing Letters under the Credit Facility on behalf
of the Lenders.
“Lenders” means those financial
institutions who in accordance with the provisions of the Agreement
provide an Individual Commitment, initially being each of the
financial institutions listed in Schedule A attached hereto and
thereafter, those financial institutions which may become Party to
this Agreement, as a Lender, by executing and delivering to the
Administrative Agent and to the Borrower an assignment or otherwise
becoming a Party hereto, and each of their respective successors
and permitted assigns, and "Lender" means any one of them in such
capacity.
“Letters” or “Letters of Credit” means
non-financial standby letters of credit or letters of guarantee
issued, for the sole purpose to support the Reclamation Obligations
of the Borrower, by the Issuing Lender (i) at the request, and
on the credit, of the Borrower and (ii) on behalf of the
Borrower and, if applicable, a Subsidiary of the Parent, each being
denominated in Canadian dollars, having a term of not more than one
year, being renewable in the sole discretion of the Issuing Lender,
being issued to a named beneficiary acceptable to the Issuing
Lender, acting reasonably, and being otherwise in a form
satisfactory to the Issuing Lender.
“Lien” means any deed of trust,
mortgage, charge, hypothec, assignment, pledge, lien,
vendor’s privilege, vendor’s right of reclamation,
royalty or other security interest or encumbrance of whatever kind
or nature, regardless of form and whether consensual or arising by
law (statutory or otherwise), that secures the payment of any
indebtedness or liability or the observance or performance of any
obligation.
“Majority Lenders” means, with
respect to a matter relating to the Credit Facility and at any
particular time up to the termination of the Credit Facility
pursuant to Section 2.4, such group of
Lenders whose Individual Commitments aggregate at least 66
2/3% of
the Credit Facility at such time and, at any particular time after
the termination of the Credit Facility pursuant to Section 2.4 but prior to repayment in full of the
Credit Facility, such group of Lenders which have aggregate
Exposure attributable to the Credit Facility in an amount equal to
at least 66 2/3% of the aggregate
Exposure of all of the Lenders attributable to the Credit Facility
at such time and, at any time thereafter, such group of Finance
Parties which have aggregate Exposure in an amount equal to at
least 66 2/3% of the aggregate
Exposure of all of the Finance Parties at such time.
“Material Adverse Change” means any
change of circumstances or event which has occurred or exists (or
any Lender becoming aware of any facts not previously disclosed or
known) which the Majority Lenders determine is reasonably likely to
have a Material Adverse Effect.
“Material Adverse
Effect” means the effect of any event or
circumstance which has occurred or exists, in the reasonable
opinion of the Majority Lenders, would or could reasonably be
expected to have a material adverse effect on (i) the ability of an
Obligor to pay any amount due and owing hereunder or under any
Credit Document as and when due or (ii) the business, operations,
performance, properties, condition (financial or otherwise) or
prospects of the Companies, taken as a whole.
“Material
Asset” means (i) any
Equity in DMI, (ii) the XxXxxxx Assets, (iii) the Midwest Assets
and (iv) the Xxxxxxx Assets. Notwithstanding the foregoing,
Material Assets shall not include such portions of the XxXxxxx
Assets, the Midwest Assets or the Xxxxxxx Assets constituting
mining claims which are not, in the reasonable estimation of the
relevant Company, material to the operations or profitability of
the relevant joint venture.
“Material
Companies” means the Tier
I Material Companies and the Tier II Material
Companies.
“Material Contracts” means
(a) the XxXxxxx Joint Venture Agreement, (b) the Midwest Joint
Venture and Operating Agreement and (c) the Xxxxxxx Joint Venture
Agreement.
“Maturity Date” means January 31,
2016.
“XxXxxxx Assets” means the XxXxxxx
Mineral Properties, the XxXxxxx Facilities, the XxXxxxx
Miscellaneous Interests and all other real and personal property of
DMI in and to the XxXxxxx Joint Venture Agreement relating to the
XxXxxxx Assets.
“XxXxxxx Facilities” means all
tangible depreciable property and assets, or to the extent any
thereof is a fixture, any real property, relating to the XxXxxxx
Mineral Properties including, without limitation, the XXX Mill and
all personal, moveable and recoverable property situated in, on or
about the XxXxxxx Mineral Properties or any lands appurtenant
thereto or any lands or sites used or useful in connection with the
exploration for, mining for, development or operation of, taking,
winning, producing, gathering, processing, milling, manufacturing,
separating, treating, storing, refining or transporting production
from the XxXxxxx Mineral Properties and specifically any mine site
or processing site equipment, xxxxx, bore holes, pits, shafts,
machinery, vehicles, equipment, telecommunications, computers,
plants and other equipment which are situated in, on or about the
XxXxxxx Mineral Properties or any lands appurtenant thereto or any
lands or sites used or useful in connection with the foregoing in
which DMI has an interest to the extent of that
interest.
“XxXxxxx Joint Venture” means the
joint venture formed pursuant to the XxXxxxx Joint Venture
Agreement.
“XxXxxxx Joint Venture Agreement”
means the Agreement dated as of March 17, 1993 among Areva
(formerly Cogema Resources Inc.), DMI and OURD as parties or
successors in interest to parties relating to the joint ownership
and operation of the XxXxxxx Joint Venture, as the same may be
supplemented, amended, modified, assigned, novated or restated from
time to time in accordance with its terms.
“XxXxxxx Material Contracts” means
the contracts, deeds, grants, conveyances or other documents or
rights giving rise to or creating the XxXxxxx Mineral Properties,
and all material contracts of DMI relating in any way to the
XxXxxxx Assets.
“XxXxxxx Mineral Properties” means
all of those present and future mineral and surface leases, claims
(including patented and unpatented mining claims) together with
associated rights of way, easements, grants, water rights,
reservations, permits, and licenses and all extensions,
substitutions or renewals thereof and amendments thereto and
agreements with third parties by virtue of which the parties to the
XxXxxxx Joint Venture are entitled to mine for, win, take, remove,
process and sell minerals under the XxXxxxx Joint Venture
Agreement.
“XxXxxxx Miscellaneous Interests”
means the XxXxxxx Material Contracts, all of DMI’s Records
relating to the XxXxxxx Assets, intellectual property, cash,
certificates of deposits, securities, loans, receivables,
production inventory, forward commitments, goodwill, choses in
action, approvals, permits, licenses and similar rights, and other
personal property of DMI relating to the XxXxxxx Assets not
described in the foregoing.
“XxXxxxx Project” means the
development and operation of the XxXxxxx Assets by the parties to
the XxXxxxx Joint Venture Agreement.
“Midwest Assets” means the Midwest
Mineral Properties, the Midwest Facilities, the Midwest
Miscellaneous Interests, and all other real and personal property
of DMI in and to the Midwest Joint Venture and Operating Agreement
relating
to the Midwest
Assets.
“Midwest Facilities” means all
tangible depreciable property and assets, or to the extent any
thereof is a fixture, any real property, relating to the Midwest
Mineral Properties, including, without limitation, all personal,
moveable and recoverable property situated in, on or about the
Midwest Mineral Properties or any lands appurtenant thereto or any
lands or sites used or useful in connection with the exploration
for, mining for, development or operation of, taking, winning,
producing, gathering, processing, milling, manufacturing,
separating, treating, storing, refining or transporting production
from the Midwest Mineral Properties and specifically, any mine site
or processing site equipment, bore holes, pits, shafts, xxxxx,
machinery, vehicles, equipment, telecommunications, computers,
plants and other equipment which are situated in, on or about the
Midwest Mineral Properties or any lands appurtenant thereto or any
lands or sites used or useful in connection with the foregoing in
which DMI has an interest to the extent of that
interest.
“Midwest Joint Venture” means the
joint venture formed pursuant to the Midwest Joint Venture and
Operating Agreement.
“Midwest Joint Venture and Operating
Agreement” means the Agreement dated January 1, 1988
among DMI, Areva (formerly Cogema Resources Inc.) and OURD as
parties or successors in interest to parties relating to the joint
ownership and operating of the Midwest Joint Venture as the same
may be supplemented, amended, modified, assigned, novated or
restated from time to time in accordance with its
terms.
“Midwest Material Contracts” means
contracts, deeds, grants, conveyances or other documents or rights
giving rise to or creating the Midwest Mineral Properties, and all
material contracts to which DMI is a party and relating in any way
to the Midwest Assets.
“Midwest Mineral Properties” means
all of those present and future mineral and surface leases, claims,
(including patented and unpatented mining claims), together with
associated rights of way, easements, grants, water rights,
reservations, permits, and licenses and all extensions,
substitutions or renewals thereof and amendments thereto and
agreements with third parties by virtue of which the parties to the
Midwest Joint Venture are entitled to mine for, win, take, remove,
process and sell minerals under the Midwest Joint Venture and
Operating Agreement.
“Midwest Miscellaneous Interests”
means the Midwest Material Contracts, all of DMI’s Records
relating to the Midwest Assets, intellectual property, cash,
certificates of deposits, securities, loans, receivables,
production inventory, forward commitments, goodwill, choses in
action, approvals, permits, licenses and similar rights, and other
personal property of the parties to DMI relating to the Midwest
Assets not described in the foregoing.
“Midwest Project” means the
development and operation of the Midwest Assets by the parties to
the Midwest Joint Venture and Operating Agreement.
“Net Income” means, for any
particular period, the amount which would, in accordance with
International Financial Reporting Standards, be classified on the
consolidated income statement of the Parent for such period as the
net income of the Parent excluding any extraordinary
items.
“North America” means Canada and
the United States of America.
“Obligors” means, collectively, the
Borrower and the Guarantor and “Obligor” means any one of the
Obligors.
“Official Body” means any national,
federal, state, provincial or municipal government or government of
any political subdivision thereof, or any agency, authority, board,
central bank, monetary authority, commission, department or
instrumentality thereof, or any court, tribunal, grand jury,
mediator, arbitrator or referee, whether foreign or
domestic.
“Order” means an order, judgment,
injunction or other determination restricting payment by the
Issuing Lender under or in accordance with a Letter or extending
the Issuing Lender’s liability beyond the expiration date
stated therein.
“Other Taxes” means all present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made
hereunder or under any other Finance Document or from the
execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Finance Document.
“Parent” means Xxxxxxx Mines Corp.
and its successors and permitted assigns.
“Parties” means the Obligors, the
Administrative Agent and the Lenders and their respective
successors and permitted assigns, and "Party" means any one of the
Parties.
“Pension Plan” means any plan,
program or arrangement which is considered to be a pension plan for
the purposes of any applicable pension benefits standards, or tax,
statute and/or regulation in Canada or any province or territory
thereof established, maintained or contributed to by, or to which
there is or may be an obligation to contribute by, any Company, its
employees or former employees, in each case whether written or
oral, funded or unfunded, insured or self-insured, reported or
unreported.
“Permitted Acquisition” means any
Acquisition with respect to which:
(a)
the business of the entity
being acquired is, (in the case of a Share Acquisition) or the
assets being acquired are used in or relate to, (in the case of an
asset Acquisition) primarily the mining industry;
(b)
no Default or Event of
Default exists at the time of such proposed Acquisition and no
Default or Event of Default would exist immediately after the
implementation of any such proposed Acquisition;
(d)
the aggregate consideration
for all Acquisitions from December 31, 2013 to and including the
Maturity Date shall not exceed $25,000,000 in cash or the Exchange
Equivalent thereof,
provided,
however, consideration for any Acquisition shall not be limited,
nor, subject to the last sentence hereof, shall the limits thereof
be reduced, where such consideration, or to the extent such
consideration, is paid with the proceeds of (x) Subordinated
Indebtedness raised concurrently with or within the one year period
prior to the date of the subject Acquisition, (y) Equity raised
concurrently with or within the one year period prior to the date
of the subject Acquisition or (z) any combination
thereof.
“Permitted Capital Reorganization”
means (a) any change in the terms of the issued and outstanding
Shares of the Parent (i) other than in connection with an
Acquisition that is not a Permitted Acquisition and (ii) that does
not result in either a Material Adverse Change or a breach of
Section 13.1(l) and (b) any Capital
Reorganization (i) that does not result in any change in the
combined direct and indirect percentage ownership interest of the
Parent in any Tier I Material Company; (ii) notice of which (and
reasonable details thereof) has been provided by the Parent to the
Administrative Agent ten Banking Days before its proposed
completion date, (iii) where at the time of the delivery of the
aforesaid notice by the Parent to the Administrative Agent, the
Parent delivers to the Administrative Agent a certificate (A)
certifying that the completion of the Capital Reorganization will
not have a Material Adverse Effect and (B) in which the Parent
shall covenant to deliver or cause to be delivered to the
Administrative Agent, contemporaneously with the completion of such
Capital Reorganization, any Security Documents and/or amendments
thereto, certificates, opinions and other things as the
Administrative Agent may request to ensure the completion of such
Capital Reorganization shall not adversely affect any rights of any
Finance Party under any Security Document and (iv) where no Default
or Event of Default has occurred and is outstanding at the time of
the completion of the Capital Reorganization or would arise
immediately thereafter.
“Permitted Corporate
Reorganization” means any Corporate Reorganization
involving a Tier I Material Company (i) notice of which (and
reasonable details thereof) has been provided by the Parent to the
Administrative Agent ten Banking Days before its proposed
completion date, (ii) where at the time of the delivery of the
aforesaid notice by the Parent to the Administrative Agent, the
Parent delivers to the Administrative Agent a certificate (A)
certifying that the completion of the Corporate Reorganization will
not have a Material Adverse Effect and (B) in which the Parent
shall covenant to deliver or cause to be delivered to the
Administrative Agent, contemporaneously with the completion of such
Corporate Reorganization, any Security Documents and/or amendments
thereto, certificates, opinions and other things as the
Administrative Agent may request to ensure the completion of such
Capital Reorganization shall not adversely affect any rights of any
Finance Party under any Security Document and (iii) where no
Default or Event of Default has occurred and is outstanding at the
time of the completion of the Corporate Reorganization or would
arise immediately thereafter.
“Permitted Dispositions”
means:
(a)
dispositions relating to the
output from any mining project owned by a Company and is made in
the ordinary course of business;
(b)
dispositions which are of
obsolete assets or assets no longer useful for their intended
purposes, which are no longer used or required by the relevant
Company or of assets which are to be replaced and the disposition
(or lapse of title to) mining claims for the XxXxxx Assets, the
Midwest Assets or the Xxxxxxx Assets which are not, in the
reasonable estimation of the relevant Material Company, material to
the operations or profitability of the relevant joint
venture;
(c)
dispositions which involve
the Shares or assets of any Company other than a Tier I Material
Company or joint venture interests thereof; and
(d)
dispositions of assets by the
Tier I Material Companies, the fair market value of which
(excluding, however, assets disposed of pursuant to clause (a) and
(b)) in the same Fiscal Year does not exceed $5,000,000 (or the
equivalent thereof in any other currency) in the aggregate and fair
value in cash or other assets is received therefor,
provided, in the
case of dispositions referenced in paragraphs (b), (c) and (d) of
this definition, no Default or Event of Default exists at the time
of such disposition and no Default or Event of Default would exist
immediately after completion of such disposition.
“Permitted Indebtedness” means any
one or more of the following:
(a)
the Secured
Obligations;
(b)
Indebtedness of any Company
in respect of Risk Management Agreements incurred in accordance
with Section 11.2(h);
(c)
Indebtedness in respect of
bonds, standby letters of credit or letters of guarantee securing
Reclamation Obligations;
(d)
Indebtedness owing by any
Company to another Company provided that in the case of
Indebtedness owing by an Obligor to any other Company, such
Indebtedness is subordinated and postponed pursuant to the
Postponement and Subordination Undertaking;
(e)
Aggregate unsecured
Indebtedness of the Companies not expressly prohibited hereby in an
aggregate consolidation not to exceed $5,000,000;
(f)
Indebtedness in respect of
Capital Leases and Purchase Money Indebtedness provided that the
aggregate amount of such Indebtedness incurred and outstanding at
any time shall not exceed $10,000,000;
(g)
Subordinated Indebtedness of
the Parent; and
(h)
Indebtedness incurred by any
Company arising from agreements entered into pursuant to a
Permitted Acquisition or Permitted Disposition which provide for
indemnification, adjustment of purchase price or similar
obligations.
“Permitted Liens” means any one or
more of the following with respect to the property and assets of
the Companies:
(a)
Liens for taxes, assessments
or governmental charges or levies not at the time due and
delinquent or the validity of which are being contested in good
faith by appropriate proceedings and as to which reserves are being
maintained in accordance with International Financial Reporting
Standards so long as forfeiture of any part of such property or
assets will not result from the failure to pay such taxes,
assessments or governmental charges or levies during the period of
such contest;
(b)
the Lien of any judgment or
award rendered, the time of the appeal or petition of rehearing of
which shall not have expired or which is being contested in good
faith by appropriate proceedings and as to which reserves are being
maintained in accordance with International Financial Reporting
Standards so long as forfeiture of any part of such property or
assets will not result from the failure to satisfy such judgment or
claim during the period of such contest;
(c)
Liens and charges incidental
to construction or ordinary course operations (including without
limitation carrier’s, warehousemen’s, mechanics’,
materialmen’s, repairmen’s Liens) which have not at
such time been filed pursuant to law or which relate to obligations
not due and delinquent or the validity of which are being contested
in good faith by appropriate proceedings and as to which reserves
are being maintained in accordance with International Financial
Reporting Standards so long as forfeiture of any part of such
property or assets will not result from the failure to pay such
obligations during the period of such contest;
(d)
restrictions, easements,
rights-of-way, servitudes or other similar rights in land
(including, without limitation, rights of way and servitudes for
railways, sewers, drains, pipe lines, gas and water mains, electric
light and power and telephone or telegraph or cable television
conduits, poles, wires and cables) held by the Companies which
individually or in the aggregate do not materially impair the
usefulness, in the operation of the business of any Company, of the
property subject to such restrictions, easements, rights-of-way,
servitudes or other similar rights in land granted to or reserved
by other Persons;
(e)
the right reserved to or
vested in any Official Body by the terms of any lease, licence,
franchise, grant or permit acquired by any Company or by any
statutory provision, to terminate any such lease, licence,
franchise, grant or permit, or to require annual or other payments
as a condition to the continuance thereof;
(f)
statutory Liens incurred or
pledges or deposits of cash made (i) in connection with bids,
performance bonds, tenders or expropriation proceedings, or (ii) to
secure workers’ compensation, surety or appeal bonds, costs
of litigation when required by law and public and statutory
obligations, (iii) in connection with the discharge of Liens or
claims incidental to construction and mechanics’,
warehouseman’s, carriers’ and other similar liens, or
(iv) in connection with any employment insurance or pension and any
employment or other social security laws;
(g)
cash collateral security
given to a public utility or any other Official Body when required
by such utility or other Official Body in connection with the
operations of any Company, all in the ordinary course of business
(whether such security is given directly to such public utility or
other Official Body or indirectly (ie. as security for a letter of
credit or bank guarantee that is issued at the request, and on the
credit, of a Company if required by a public utility or any other
Official Body in connection with the operations of such Company,
all in the ordinary course of business);
(h)
the reservations, royalties,
limitations, provisos and conditions, if any, expressed in any
original grants from the Crown or in comparable grants, if any, and
all statutory exceptions, qualifications, royalties and
reservations respecting title, in jurisdictions other than
Canada;
(i)
title defects or
irregularities which are of a minor nature and in the aggregate
will not materially impair the use of the property for the purpose
for which it is held and which do not materially affect any rights
of ownership of a Company therein;
(j)
applicable municipal and
other Official Body restrictions affecting the use of land or the
nature of any structures which may be erected thereon, provided
such restrictions have been complied with and will not materially
impair the use of the property for the purpose for which it is
held;
(k)
Liens on concentrates or
minerals or the proceeds of sale of such concentrates or minerals
arising or granted pursuant to a processing arrangement entered
into in the ordinary course and upon usual market terms, securing
the payment of a Company’s portion of the fees, costs and
expenses attributable to the processing of such concentrates or
minerals under any such processing arrangement, but only insofar as
such Liens relate to obligations which are at such time not past
due or the validity of which are being contested in good faith by
appropriate proceedings and as to which reserves are being
maintained in accordance with International Financial Reporting
Standards;
(l)
the Security;
(m)
Liens which secure payment of
up to an aggregate amount of $10,000,000 in respect of Capital
Leases and Purchase Money Indebtedness (provided that any such Lien
shall only attach to the asset in respect of which such
Indebtedness is incurred);
(n)
Liens secured by cash
collateral, letters of credit or letters of guarantee granted to
secure Reclamation Obligations or other obligations arising under
Environmental Laws;
(o)
royalties on the production
or profits from mining, reversionary interests, and other Liens
arising under Third Party Mining Arrangements provided such
royalties (x) are in existence as at the date hereof or (y) attach
to an asset or equity interest acquired pursuant to a Permitted
Acquisition after the date hereof;
(p)
any claim or Lien from time
to time disclosed by an Obligor to the Administrative Agent and
which is consented to by the Majority Lenders;
(q)
Liens or covenants
restricting or prohibiting access to or from lands abutting on
controlled access highways or covenants affecting the use to which
lands may be put; provided that such Liens or covenants do not
materially and adversely affect the use of the lands by the
Companies;
(r)
undetermined or inchoate
Liens and charges arising or potentially arising under statutory
provisions which have not at the time been filed or registered in
accordance with Applicable Law or of which written notice has not
been duly given in accordance with Applicable Law or which although
filed or registered, relate to obligations not due and
delinquent;
(s)
any Lien existing on any
property or asset prior to its Permitted Acquisition; provided that
(i) such Lien is not created in contemplation of or in connection
with such Permitted Acquisition and (ii) such Lien shall secure
only those obligations which it secures and are outstanding on the
date of such Permitted Acquisition; provided, however, any such
Lien shall cease to be a Permitted Lien should it rank in priority
to the Security following any Permitted Reorganization;
and
(t)
any extension, renewal or
replacement of any of the foregoing.
“Permitted
Reorganizations” means Permitted Corporate
Reorganizations and Permitted Capital Reorganizations.
“Person” means any natural person,
individual company, corporation, firm, partnership, trust, joint
venture, joint stock company, union, incorporated or unincorporated
association, unincorporated organization or any Official Body
(collectively an “entity” and the heirs, executors,
administrators, successors, or other legal representatives, as the
case may be, of such whether acting in an individual, fiduciary or
other capacity.
“Pledged Subsidiaries” means each
Subsidiary of the Parent, whose shares are pledged to the
Administrative Agent pursuant to a Security Document including, for
certainty, the Subsidiaries referenced in Schedule G hereto.
“Pollutant” means any pollutant, as
defined by EPA.
“Postponement and Subordination
Undertaking” means the postponement and subordination
undertaking to be entered into by the Companies in favour of the
Administrative Agent pursuant to Section 11.1(s), in form and substance satisfactory to
the Administrative Agent as the same may be amended, modified,
supplemented or replaced from time to time.
“Prepayment Amount” means, with
respect to any Prepayment Trigger Event, an amount equal to the
gross cash proceeds received by a Company less the sum of
reasonable and customary fees, commissions, expenses, discounts,
deductibles and other reasonable costs paid by or on behalf of such
Company in connection with such Prepayment Trigger
Event.
“Prepayment Trigger Event” means
the receipt by any Material Company of any proceeds of property or
casualty insurance in respect of a Material Asset, in excess of
$5,000,000, to the extent such proceeds are not applied or
committed within a reasonable period of the relevant casualty event
to replace, repair or restore the insured assets which were damaged
or destroyed.
“Prime Rate” means the variable
rate of interest per annum equal to the rate of interest determined
by the Administrative Agent from time to time as its prime rate of
Canadian dollar loans made by the Administrative Agent in Canada
from time to time, being a variable per annum reference rate of
interest adjusted automatically upon change by the Administrative
Agent calculated on the basis of a year of 365 days.
“Pro Rata Share” means, at any
particular time with respect to a particular Lender, the ratio of
the Individual Commitment of such Lender with respect to the Credit
Facility at such time to the aggregate of the Individual
Commitments of all Lenders with respect to the Credit Facility at
such time.
“Proceeds of Realization” means all
cash and non-cash proceeds derived from any sale, disposition or
other realization of the Secured Assets (i) after any notice
by the Administrative Agent to an Obligor pursuant to
Section 13.1 declaring all
indebtedness of the Obligors hereunder to be immediately due and
payable, (ii) upon any dissolution, liquidation, winding-up,
reorganization, bankruptcy, insolvency or receivership of any of
the Obligors (or any other arrangement or marshalling of the
Secured Assets that is similar thereto) or (iii) upon the
enforcement of, or any action taken with respect to, any of the
Security Documents.
“Purchase Money Indebtedness” means
Indebtedness assumed by any Company as part of, or issued or
incurred by any Company to pay or provide funds to pay, all or a
part of the purchase price of any equipment or other tangible
personal property hereafter or previously acquired by such
Company.
“Qualified Risk Management
Lender” means any Person that enters into
a Risk Management Agreement at a time when such Person is a Lender,
provided that such Person ceases to be a Qualified Risk Management
Lender if and when such Person sells all of its rights and
obligations under the Credit Documents.
“Quarterly Reporting Date” means,
with respect to any particular Fiscal Quarter, the date which is 60
days after the end of such Fiscal Quarter.
“Receiver” means a receiver,
receiver and manager or the person having similar powers or
authority appointed by the Administrative Agent or by a court at
the instance of the Administrative Agent in respect of the Secured
Assets or any part thereof.
“Reclamation
Obligations” means, with respect to any Person,
all mine closure, asset retirement and environmental reclamation
obligations of such Person, whether matured, real or contingent, on
a consolidated basis at such time (except to the extent fully
defeased by cash collateral).
“Release” means a
“discharge”, as such term is defined in the
EPA.
“Risk Management Agreement” means
any instrument or agreement evidencing any Risk Management
Obligation of any Company.
“Risk Management Obligations”
means, with respect to any Person, all liabilities of such Person
under Cash Management Agreements, interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements,
forward sales contracts, and all other agreements, options or
arrangements designed to protect such Person against fluctuations
in interest rates, currency exchange rates or commodity (including
uranium) prices.
“Sale Leaseback” shall mean any
transaction or series of related transactions pursuant to which any
Company (a) sells, transfers or otherwise disposes of any
property, real or personal, whether now owned or hereafter
acquired, and (b) as part of such transaction, thereafter
rents or leases such property.
“Secured Assets” means all present
and future assets of the Obligors in which the Administrative Agent
has been or will be granted a Lien pursuant to the Security
Documents and all proceeds therefrom, and all other present and
future assets of the Obligors charged pursuant to the Security
Documents.
“Secured Obligations” shall mean all indebtedness,
obligations and liabilities, present or future, absolute or
contingent, matured or not, at any time owing by any Company to any
of the Finance Parties, or remaining unpaid to any of the Finance
Parties, under or in connection with any of the Finance Documents
to which any such Company is a party, and Secured Obligations of a
particular Company shall mean all indebtedness, obligations and
liabilities, present or future, absolute or contingent, matured or
not, at any time owing by such Company to any of the Finance
Parties, or remaining unpaid to any of the Finance Parties, under
or in connection with any of the Finance Documents to which such
Company is a party. For certainty, “Secured Obligations” shall include
interest accruing subsequent to the filing of, or which would have
accrued but for the filing of, a petition for bankruptcy, in
accordance with and at the rate (including any rate applicable upon
any Default or Event of Default to the extent lawful) specified
herein, whether or not such interest is an allowable claim in such
bankruptcy proceeding.
“Secured Risk Management
Agreements” means Risk Management Agreements
between any Company on the one hand and a Lender on the other hand
(but only for so long as such Lender remains a Qualified Risk
Management Lender).
“Security” means the collateral
security constituted by the Security Documents.
“Security Documents” shall mean the
security documents (as the same may be amended, modified,
supplemented, restated or replaced from time to time) which, in the
reasonable opinion of the Administrative Agent, are required to be
entered into from time to time by the Obligors in favour of the
Administrative Agent for the benefit of the Finance Parties in
order to grant directly or indirectly to the Administrative Agent a
first-ranking Lien on the Secured Assets as continuing collateral
security for the payment and performance of the Secured
Obligations, such security documents to be in form and substance
satisfactory to the Administrative Agent and to include, without
limitation, the security documents described in Schedule H.
“Shares”, as applied to the shares
or other equity interests of any corporation or other entity, means
the shares or other ownership interests of every class whether now
or hereafter authorized, regardless of whether such shares or other
ownership interests shall be limited to a fixed sum or percentage
with respect to the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or
involuntary liquidation, dissolution or winding-up of such
corporation or other entity.
“Subordinated Indebtedness” means
unsecured Indebtedness for borrowed money which (a) is not
otherwise expressly prohibited in this Agreement; (b) does not
permit scheduled principal repayments thereof until one year after
the Maturity Date; (c) is contractually subordinated in terms of
priority of payment, to the Secured Obligations;(d) is not subject
to any cross default right in favour of the relevant subordinated
creditor; (e) is subject to a standstill period with respect to
enforcement of remedies and other lender rights of no less than 180
days; (f) is not subject to maintenance financial covenant
requirements; (g) is subject to terms and provisions no more
restrictive than those set forth in this Agreement and are
otherwise on terms and conditions satisfactory to the Majority
Lenders, acting reasonably.
“Subsidiary” means, with respect to
any Person, any corporation, company or other similar business
entity (including, for greater certainty, a Canadian chartered
bank) of which more than fifty per cent (50%) of the outstanding
Shares or other equity interests (in the case of Persons other than
corporations) having ordinary voting power to elect a majority of
the board of directors or the equivalent thereof of such
corporation, company or similar business entity (irrespective of
whether at the time Shares of any other class or classes of the
Shares of such corporation, company or similar business entity
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.
“Tangible Net Worth” means, at any
particular time, the amount of Equity at such time less the
aggregate of the amounts, at such time, which would, in accordance
with International Financial Reporting Standards, be classified
upon the consolidated balance sheet of the Parent as goodwill
(without taking into account any future income tax assets that may
be classified as goodwill) and intangible assets. For certainty,
Tangible Net Worth shall be calculated exclusive of (i) any
consolidated non-cash impairment charge incurred by the Parent in
respect of any assets or properties located outside of North
America, (ii) any consolidated non-cash foreign exchange gains or
losses on assets or liabilities of the Parent, and (iii) any
changes to the Parent’s “cumulative currency
translation adjustment account” which occurred after December
31, 2013.
“Tax Act” means the Income Tax Act (Canada), as amended
from time to time, and regulations promulgated
thereunder.
“Taxes” means all present or future
taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Official Body,
including any interest, additions to tax or penalties applicable
thereto.
“Third Party Mining
Arrangements” means any arrangement with another
Person or Persons of a nature that is, or shall have become
customary in, the mining business for the purposes of sharing the
risks or costs of exploring, acquiring, developing or producing
minerals from property owned in whole or in part by a Company,
including, operating, processing, farm-in, farm-out, development,
area of mutual interest, unitization, pooling, joint bidding, joint
venture, service, partnership, subscription and stock purchase
agreement and other similar agreements.
“Tier I Material Companies” means
the Obligors and any other Company which directly or indirectly
owns or operates any Material Asset.
“Tier II Material Companies” means
any direct or indirect Subsidiary of the Parent in respect of
which:
(a)
the gross revenue of such
Subsidiary for the most recently completed four Fiscal
Quarters constitutes at least 10% of the consolidated revenue of
the Parent for such four Fiscal Quarter period; or
(b)
the book value of the assets
of such Subsidiary as at the last day of the most recently
completed four Fiscal Quarters constitutes at least 10% of the book
value of the assets of the Parent on a consolidated basis as at the
last day of the most recently completed Fiscal
Quarter.
“U.S.” and “United States” means the United
States of America.
“Unrestricted Cash” means, at any
particular time and without duplication, an aggregate amount equal
to all Cash and Cash Equivalents of the Obligors (i) which is not
subject to any Lien (other than a Lien granted pursuant to a
Security Document) or restriction and (ii) which is credited to
deposit accounts with The Bank of Nova Scotia situated in
Canada.
“Waste” means any waste, as defined
by EPA.
“Xxxxxxx Assets” means the Xxxxxxx
Mineral Properties, the Xxxxxxx Facilities, the Xxxxxxx
Miscellaneous Interests and all other real and personal property of
DMI in and to the Xxxxxxx Joint Venture Agreement relating to the
Xxxxxxx Assets.
“Xxxxxxx Facilities” means all
tangible depreciable property and assets, or to the extent any
thereof is a fixture, any real property, relating to the Xxxxxxx
Mineral Properties and all personal, moveable and recoverable
property situated in, on or about the Xxxxxxx Mineral Properties or
any lands appurtenant thereto or any lands or sites used or useful
in connection with the exploration for, mining for, development or
operation of, taking, winning, producing, gathering, processing,
milling, manufacturing, separating, treating, storing, refining or
transporting production from the Xxxxxxx Mineral Properties and
specifically any mine site or processing site equipment, xxxxx,
bore holes, pits, shafts, machinery, vehicles, equipment,
telecommunications, computers, plants and other equipment which are
situated in, on or about the Xxxxxxx Mineral Properties or any
lands appurtenant thereto or any lands or sites used or useful in
connection with the foregoing in which DMI has an interest to the
extent of that interest.
“Xxxxxxx Joint Venture” means the
joint venture formed pursuant to the Xxxxxxx Joint Venture
Agreement.
“Xxxxxxx Joint Venture Agreement”
means the joint venture agreement dated as of December 28, 1978
among Saskatchewan Mining Development Corporation, E&B
Explorations Ltd. and AGIP Canada Ltd. as novated, assigned and/or
amended pursuant to: (i) a novation agreement dated as of July 31,
1984 among Saskatchewan Mining Development Corporation, E&B
Explorations Ltd., AGIP Canada Ltd. and Xxxxxxx Mines Limited; (ii)
an assignment and novation agreement dated February 13, 1987 among
Saskatchewan Mining Development Corporation, E&B Explorations
Ltd., AGIP Canada Ltd., Xxxxxxx Mines Limited and PNC Exploration
(Canada) Co. Ltd.; (iii) an assignment and novation agreement dated
as of September 28, 1987 among Saskatchewan Mining Development
Corporation, E&B Explorations Ltd., AGIP Canada Ltd., Xxxxxxx
Mines Limited, PNC Exploration (Canada) Co. Ltd. and 000000 Xxxxxx
Inc.; (iv) a novation and participating interest and net profit
interest transfer agreement dated January 16, 1996 among Xxxxxxx
Mines Limited, PNC Exploration (Canada) Co. Ltd., Cameco Resources
Ltd., Cameco Corporation and Imperial Metals Corporation; (v) a
novation agreement dated November 10, 2000 among Xxxxxxx Mines
Limited, PNC Exploration (Canada) Co. Ltd., Cameco Corporation and
JCU (Canada) Exploration Company, Limited; and (vi) an assignment
and novation agreement dated January 27, 2004 among Xxxxxxx Mines
Inc., Cameco Corporation, JCU (Canada) Exploration Company, Limited
and Xxxxxxx Energy Inc.
“Xxxxxxx Material Contracts” means
the contracts, deeds, grants, conveyances or other documents or
rights giving rise to or creating the Xxxxxxx Mineral Properties,
and all material contracts of DMI relating in any way to the
Xxxxxxx Assets.
“Xxxxxxx Mineral Properties” means
all of those present and future mineral and surface leases, claims
(including patented and unpatented mining claims) together with
associated rights of way, easements, grants, water rights,
reservations, permits, and licenses and all extensions,
substitutions or renewals thereof and amendments thereto and
agreements with third parties by virtue of which the parties to the
Xxxxxxx Joint Venture are entitled to mine for, win, take, remove,
process and sell minerals under the Xxxxxxx Joint Venture
Agreement.
“Xxxxxxx Miscellaneous Interests”
means the Xxxxxxx Material Contracts, all of DMI’s Records
relating to the Xxxxxxx Assets, intellectual property, cash,
certificates of deposits, securities, loans, receivables,
production inventory, forward commitments, goodwill, choses in
action, approvals, permits, licenses and similar rights, and other
personal property of DMI relating to the Xxxxxxx Assets not
described in the foregoing.
“Xxxxxxx Project” means the
development and operation of the Xxxxxxx Assets by the parties to
the Xxxxxxx Joint Venture Agreement.
References to
“this Agreement”, “the Agreement”,
“hereof”, “herein”, “hereto”
and like references refer to this Credit Agreement and not to any
particular Article, Section or other subdivision of this
Agreement. Any references herein to any agreements or documents
shall mean such agreements or documents as amended, supplemented or
otherwise modified from time to time in accordance with the terms
hereof and thereof.
Where the context
so requires, words importing the singular number shall include the
plural and vice versa.
The division of
this Agreement into Articles, Sections and subsections and the
insertion of headings in this Agreement are for convenience of
reference only and shall not affect the construction or
interpretation of the Credit Documents.
Unless otherwise
specified herein, all statements of or references to dollar amounts
in this Agreement shall mean lawful money of Canada.
This Agreement
shall be governed by and construed in accordance with the laws of
the Province of Ontario and the federal laws of Canada applicable
therein. Any legal action or proceeding with respect to this
Agreement may be brought in the courts of the Province of Ontario
and, by execution and delivery of this Agreement, the Parties
hereby accept for themselves and in respect of their property,
generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts. Nothing herein shall limit the right of any
Party to serve process in any manner permitted by law or to
commence legal proceedings or otherwise proceed against any other
Party in any other jurisdiction.
Time shall in all
respects be of the essence of this Agreement.
Whenever any
payment to be made hereunder shall be stated to be due or any
action to be taken hereunder shall be stated to be required to be
taken on a day other than a Banking Day, such payment shall be made
or such action shall be taken on the next succeeding Banking Day
and, in the case of the payment of any amount, the extension of
time shall be included for the purposes of computation of interest,
if any, thereon.
Whenever the
consent or approval of a Party hereto is required in a particular
circumstance, unless otherwise expressly provided for therein, such
consent or approval shall not be unreasonably withheld or delayed
by such Party.
Any reference
herein to the amount of credit outstanding shall mean, at any
particular time, the contingent liability of the Issuing Lender
thereunder.
Each and every
one of the schedules which is referred to in this Agreement and
attached to this Agreement shall form a part of this
Agreement.
The Credit
Documents have been negotiated by each Party with the benefit of
legal representation, and any rule of construction to the effect
that any ambiguities are to be resolved against the drafting Party
shall not apply to the construction or interpretation of the Credit
Documents.
Except as
otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with
International Financial Reporting Standards, as in effect from time
to time. All calculations of the components of the financial
information for the purposes of determining compliance with the
financial ratios and financial covenants contained herein shall be
made on a basis consistent with International Financial Reporting
Standards in existence as at the date of this Agreement and used in
the preparation of the consolidated financial statements of the
Parent referred to in Section 11.1(a).
Whenever any
reference herein is made to "knowledge" of any Company, (i) any
knowledge of an officer of such Company with respect to a certain
fact, circumstance or state of affairs shall be deemed to be
knowledge of such Company with respect thereto and (ii) any time an
officer of a Company is advised of a certain fact, circumstance or
state of affairs, the Company shall be deemed to have knowledge
thereof.
Article 2
Subject to the
terms and conditions hereof the Lenders hereby establish in favour
of the Borrower a revolving term credit facility (the
“Credit
Facility”) in the amount of $24,000,000 (as such
amount may be reduced pursuant to Section 2.3).
Subject to the
terms and conditions hereof, the Lenders severally agree to extend
credit to the Borrower under the Credit Facility from time to time
provided that the aggregate amount of credit extended by each
Lender under the Credit Facility shall not at any time exceed the
Individual Commitment of such Lender and further provided that the
aggregate amount of credit outstanding under the Credit Facility
shall not at any time exceed the amount of the Credit Facility. All
credit requested under the Credit Facility shall be made available
to the Borrower contemporaneously by all of the Lenders. No Lender
shall be responsible for any default by any other Lender in its
obligation to provide its Pro Rata Share of any credit under the
Credit Facility nor shall the Individual Commitment of any Lender
be increased as a result of any such default of another Lender in
extending credit under the Credit Facility. The failure of any
Lender to make available to the Borrower its Pro Rata Share of any
credit under the Credit Facility shall not relieve any other Lender
of its obligation hereunder to make available to the Borrower its
Pro Rata Share of such credit under the Credit Facility. For
certainty, all obligations of each Lender hereunder are its several
obligations.
The Borrower may, from time to time and at any
time, by notice in writing to the Administrative Agent, permanently
reduce the Credit Facility in whole or in part to the extent it is
not being utilized at the time such notice is given, provided that
such reduction shall not become effective until five Banking Days
after such notice has been given. The amount of the Credit Facility
will be permanently reduced at the time, and in the amount, of (i)
each repayment or prepayment made pursuant to Section
9.1 or 9.2 and
(ii) each Distribution (for certainty, only those Distributions
referenced in paragraphs (a) and (b) of the definition thereof)
paid by the Parent to its shareholders. Any repayment or prepayment
of credit outstanding under the Credit Facility (other than as set
forth above) shall not cause a reduction in the amount of the
Credit Facility. Upon any reduction of the Credit Facility, the
Individual Commitment of each Lender with respect to the Credit
Facility shall thereupon be reduced by an amount equal to such
Lender’s Pro Rata Share of the amount of such reduction of
the Credit Facility.
(a)
the Credit Facility shall
terminate upon the earliest to occur of:
(i)
the termination of the Credit
Facility in accordance with Section 13.1;
(ii)
the date on which the Credit
Facility has been permanently reduced to zero pursuant to
Section 2.3; and
(iii)
the Maturity
Date.
(b)
Upon the termination of the
Credit Facility, the right of the Borrower to obtain any credit
hereunder and all of the obligations of the Lenders to extend
credit hereunder shall automatically terminate.
Article 3
Subject to the
terms and conditions hereof the Borrower may obtain credit under
the Credit Facility from the Lenders by way of one or more
Letters.
Unless otherwise
expressly provided herein, the Borrower shall make all payments
pursuant to this Agreement or pursuant to any document, instrument
or agreement delivered pursuant hereto by deposit to the relevant
Designated Account before 1:00 p.m. (Toronto time) on the day
specified for payment and the Administrative Agent shall be
entitled to withdraw the amount of any payment due to the
Administrative Agent or the Lenders hereunder from such accounts on
the day specified for payment.
The
Administrative Agent shall maintain accounts wherein the
Administrative Agent shall record the amount of credit outstanding,
each payment of principal and fees on account of each Letter issued
and draw upon and all other amounts becoming due to and being paid
to the Lenders or the Administrative Agent hereunder, including,
Letter fees and standby fees. The Administrative Agent’s
accounts constitute, in the absence of manifest error, prima facie evidence of the
indebtedness of the Borrower pursuant to this
Agreement.
(a)
The Borrower hereby
acknowledge and confirm to the Issuing Lender that the Issuing
Lender shall not be obligated to make any inquiry or investigation
as to the right of any beneficiary to make any claim or Draft or
request any payment under a Letter and payment by the Issuing
Lender pursuant to a Letter shall not be withheld by the Issuing
Lender by reason of any matters in dispute between the beneficiary
thereof and the Borrower. The sole obligation of the Issuing Lender
with respect to Letters is to cause to be paid a Draft drawn or
purporting to be drawn in accordance with the terms of the
applicable Letter and for such purpose the Issuing Lender is only
obligated to determine that the Draft purports to comply with the
terms and conditions of the relevant Letter.
(b)
The Issuing Lender shall not
have any responsibility or liability for or any duty to inquire
into the form, sufficiency (other than to the extent provided in
the preceding paragraph), authorization, execution, signature,
endorsement, correctness (other than to the extent provided in the
preceding paragraph), genuineness or legal effect of any Draft,
certificate or other document presented to it pursuant to a Letter
and the Borrower unconditionally assume all risks with respect to
the same. The Borrower agrees that it assumes all risks of the acts
or omissions of the beneficiary of any Letter with respect to the
use by such beneficiary of the relevant Letter.
(c)
The obligations of the
Borrower hereunder with respect to Letters shall be absolute,
unconditional and irrevocable and shall not be reduced by any event
or occurrence including, without limitation:
(i)
any lack of validity or
enforceability of this Agreement or any such Letter;
(ii)
any amendment or waiver of or
any consent to departure from this Agreement;
(iii)
the existence of any claim,
set-off, defence or other rights which the Borrower may have at any
time against any beneficiary or any transferee of any such Letter
(or any person or entities for whom any such beneficiary or any
such transferee may be acting), any Lender, the Issuing Lender or
any other Person;
(iv)
any Draft, statement or other
document presented under any such Letter proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect
whatsoever;
(v)
payment by the Issuing Lender
under such Letter against presentation of a sight draft or
certificate which does not comply with the terms of such
Letter;
(vi)
any non-application or
misapplication by the beneficiary of such Letter of the proceeds of
any drawing under such Letter;
(vii)
the surrender or impairment
of any Security; or
(viii)
any reduction or withdrawal
of the Issuing Lender’s credit rating by any rating
agency.
The obligations
of the Borrower hereunder with respect to Letters shall remain in
full force and effect and shall apply to any amendment to or
extension of the expiration date of any such Letter.
(d)
Any action, inaction or
omission taken or suffered by the Issuing Lender or any of the
Issuing Lender’s correspondents, officers, directors,
employees or agents under or in connection with a Letter or any
Draft made thereunder, if in good faith and in conformity with
foreign or domestic laws, regulations or customs applicable
thereto, shall be binding upon the Borrower and shall not place the
Issuing Lender or any of its correspondents, officers, directors,
employees or agents under any resulting liability to the Borrower.
Without limiting the generality of the foregoing, the Issuing
Lender and its correspondents, officers, directors, employees or
agents may receive, accept or pay as complying with the terms of a
Letter, any Draft thereunder, otherwise in order which may be
signed by, or issued to, the administrator or any executor of, or
the trustee in bankruptcy of, or the receiver for any property of,
or other Person or entity acting as the representative or in the
place of, such beneficiary or its successors and assigns. The
Borrower covenants that it will not take any steps, issue any
instructions to the Issuing Lender or any of their correspondents,
officers, directors, employees or agents or institute any
proceedings intended to derogate from the right or ability of the
Issuing Lender or its correspondents, officers, directors,
employees or agents to honour and pay any Draft or
Drafts.
(e)
The Borrower agrees that the
Lenders, the Issuing Lender and the Administrative Agent shall have
no liability to it for any reason in respect of or in connection
with any Letter, the issuance thereof, any payment thereunder, or
any other action taken by the Lenders, the Issuing Lender or the
Administrative Agent or any other person in connection therewith,
other than on account of the Issuing Lender’s gross
negligence or wilful misconduct.
(f)
Save to the extent expressly
provided otherwise in this Section 3.4, the rights and obligations between the
Issuing Lender and the Borrower with respect to each Letter shall
be determined in accordance with the applicable provisions of the
(i) Uniform Customs and Practice for Documentary Credits (1993
Revision), ICC Publications 500, (ii) the International
Standby Practices - ISP98, ICC Publication No. 590, or (iii) any
other Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce current at the time of issuance
of such Letter, as applicable.
Each Drawdown
Notice shall be given to the Administrative Agent prior to 10:00
a.m. (Toronto time) on the third Banking Day (or such longer period
as may be reasonably advised by the applicable Issuing Lender to
the Borrower) prior to the requested issuance date of a
Letter.
Notwithstanding
the provisions of Sections 3.4
with respect to reimbursing with respect to Letters in accordance
with each relevant Lender’s Pro Rata Share, the
Administrative Agent shall be entitled to reallocate reimbursement
obligations among the relevant Lenders in order to ensure, to the
greatest extent practicable, that after such funding the aggregate
amount of credit extended hereunder by each Lender coincides with
such Lender’s Pro Rata Share of the aggregate amount of
credit extended under a the Credit Facility by all of the relevant
Lenders, provided that no such allocation shall result in the
aggregate amount of credit extended hereunder by any Lender
exceeding such Lender’s Individual Commitment under such
Credit Facility.
Article 4
Subject to
Section 3.1 and provided that all
of the applicable conditions precedent set forth in Article 12 have
been fulfilled by the Borrower or waived by the Lenders as provided
in Section 14.14, the Borrower
may, from time to time, obtain credit hereunder by giving to the
Administrative Agent an irrevocable notice in substantially the
form of Schedule D hereto
(“Drawdown
Notice”) in accordance with Section 3.5 and specifying:
(a)
the date the Letter is to be
obtained; and
(b)
the named beneficiary of the
Letter, the maturity date and amount of the Letter, and all other
terms of the Letter (including, without limitation, (i) the
proposed form of the Letter and (ii) if the Letter is to be
issued on behalf of a Company other than the Borrower as well as on
behalf of the Borrower, the name of such Company).
If a Letter is to
be issued on behalf of a Subsidiary of the Parent as well as on
behalf of the Borrower, the Borrower shall ensure that accompanying
such Drawdown Notice is an instrument, substantially in the form of
Schedule F hereto, and pursuant to which such Subsidiary shall
agree, without qualification, to reimburse the Issuing Lender on
demand for the full amount of each and any Draft presented to and
paid by the Issuing Lender in accordance with such
Letter.
Article 5
Article 6
CONVERSIONSS
Article 7
(a)
For the purposes hereof,
whenever interest is calculated on the basis of a year of 365 days,
each rate of interest determined pursuant to such calculation
expressed as an annual rate for the purposes of the Interest Act (Canada) is equivalent to
such rate as so determined multiplied by the actual number of days
in the calendar year in which the same is to be ascertained and
divided by 365 days.
(b)
If the Borrower fails to pay
any fee or other amount of any nature payable by it to any Finance
Party hereunder or under any document, instrument or agreement
delivered pursuant hereto on the due date therefor, the Borrower
shall pay to such Finance Party, interest on such overdue amount in
the same currency as such overdue amount is payable from and
including such due date to but excluding the date of actual payment
(as well after as before judgment) at the rate per annum,
calculated and compounded monthly, which is equal to the aggregate
of the Prime Rate plus 4%. Such interest on overdue amounts shall
become due and be paid on demand made by the Administrative
Agent.
Upon the first
Banking Day following the completion of each Fiscal Quarter and on
the termination of the Credit Facility, the Borrower shall pay, in
accordance with Section 3.2, to
the Lenders, in arrears, a standby fee calculated at the rate per
annum, on the basis of a year of 365 days, equal to 0.75% on the
daily Available Credit during the most recently completed Fiscal
Quarter, such fee to accrue daily from the date of execution and
delivery of this Agreement to and including termination of the
Credit Facility.
(a)
The Borrower shall pay to the
Lenders, in accordance with Section 3.2, an issuance fee quarterly in arrears on
the first Banking Day of each Fiscal Quarter, calculated at a rate
per annum equal to 2.4% on the basis of a year of 365 days and on
the amount of each such Letter for a period of time equal to the
number of days in the preceding Fiscal Quarter on which such Letter
was outstanding. In addition, with respect to all Letters, the
Borrower shall from time to time pay to the Issuing Lender its
usual and customary fees (at the then prevailing rates) for the
amendment, delivery and administration of letters of credit such as
the Letters. Each such payment is non-refundable and fully earned
when due.
(b)
With respect to each Letter
issued hereunder, the Borrower shall pay to the Issuing Lender, in
accordance with Section 3.2, a
fronting fee quarterly in arrears on the first Banking Day of each
Fiscal Quarter, calculated at a rate of 0.125% per annum on that
portion of the amount of each such Letter for which Lenders other
than the Issuing Lender have agreed to reimburse the Issuing Lender
for any amounts drawn hereunder and for a period of time equal to
the number of days in the preceding Fiscal Quarter on which such
Letter was outstanding. Each such payment is non-refundable and
fully earned when due.
Article 8
The obtaining or
maintaining of credit hereunder shall be subject to the terms and
conditions contained in this Article 8.
(a)
Increased Costs Generally. If from time
to time any Change in Law shall:
(i)
impose, modify or deem
applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any
Finance Party;
(ii)
subject any Finance Party to any
Tax of any kind whatsoever with respect to this Agreement, any
Accommodation made by it, or change the basis of taxation of
payments to such Finance Party in respect thereof, except for
Indemnified Taxes or Other Taxes covered by Section 8.6 and the imposition, or any change in the
rate, of any Excluded Tax payable by such Finance Party;
or
(iii)
impose on any Finance Party
or any applicable interbank market any other condition, cost or
expense affecting this Agreement or Accommodations made by such
Finance Party or participation therein;
and the result of
any of the foregoing shall be to increase the cost to such Finance
Party of making or maintaining any Accommodation (or of maintaining
its obligation to make any such Accommodation), or to increase the
cost to such Finance Party of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation
to participate in or to issue any Letter of Credit), or to reduce
the amount of any sum received or receivable by such Finance Party
hereunder (whether of principal, interest or any other amount),
then upon request of such Finance Party from time to time the
Obligors will pay to such Finance Party such additional amount or
amounts as will compensate such Finance Party for such additional
costs incurred or reduction suffered, such amount or amounts to be
determined in the sole and absolute discretion of the relevant
Finance Party.
(b)
Capital and Liquidity Requirements. If
any Finance Party determines in its sole and absolute discretion
that any Change in Law affecting such Finance Party or any lending
office of such Finance Party or such Finance Party’s holding
company, if any, regarding capital or liquidity requirements has or
would have the effect of reducing the rate of return on such
Finance Party’s capital or on the capital of such Finance
Party’s holding company, if any, as a consequence of this
Agreement, the Individual Commitment of such Finance Party or the
Accommodations made by it, to a level below that which such Finance
Party or its holding company could have achieved but for such
Change in Law (taking into consideration such Finance Party’s
policies and the policies of its holding company with respect to,
as applicable, capital adequacy or liquidity requirements), then
from time to time the Obligors will pay to such Finance Party such
additional amount or amounts as will compensate such Finance Party
or its holding company for any such reduction suffered, such amount
or amounts to be determined in the sole and absolute discretion of
the Finance Party.
(c)
Certificates for Reimbursement. A
certificate of a Finance Party setting forth the amount or amounts
necessary to compensate such Finance Party or its holding company,
as the case may be, as specified in paragraph (a) or (b) of this
Section, including reasonable detail of the basis of calculation of
the amount or amounts, and delivered to the Obligors from time to
time shall be conclusive absent manifest error. The Obligors shall
pay such Finance Party the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d)
Delay in Requests. Failure or delay on
the part of any Finance Party to demand compensation pursuant to
this Section shall not constitute a waiver of such Finance
Party’s right to demand such compensation, except that the
Obligors shall not be required to compensate a Finance Party
pursuant to this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that
such Finance Party notifies the Obligors of the Change in Law
giving rise to such increased costs or reductions and of such
Finance Party’s intention to claim compensation therefore,
unless the Change in Law giving rise to such increased costs or
reductions is retroactive, in which case the nine-month period
referred to above shall be extended to include the period of
retroactive effect thereof.
If any Lender but
not all of the Lenders who have Individual Commitments seeks
additional compensation pursuant to Section 8.2(a)(ii) (the “Affected Lender”), then the
Obligors may indicate to the Administrative Agent in writing that
they desire to replace the Affected Lender with one or more of the
other Lenders, and the Administrative Agent shall then forthwith
give notice to the other Lenders that any such Lender or Lenders
may, in the aggregate, advance all (but not part) of the Affected
Lender’s Pro Rata Share of the affected credit and, in the
aggregate, assume all (but not part) of the Affected Lender’s
Individual Commitment and obligations under the Credit Facility and
acquire all (but not part) of the rights of the Affected Lender and
assume all (but not part) of the obligations of the Affected Lender
under each of the other Credit Documents to the extent they relate
to the Credit Facility (but in no event shall any other Lender or
the Administrative Agent be obliged to do so). If one or more
Lenders shall so agree in writing (herein collectively called the
“Assenting
Lenders” and individually called an
“Assenting
Lender”) with respect to such advance, acquisition and
assumption, the Pro Rata Share of such credit of each Assenting
Lender and the Individual Commitment and the obligations of such
Assenting Lender and the rights and obligations of such Assenting
Lender under each of the other Credit Documents shall be increased
by its respective pro rata share (based on the relative Individual
Commitments of the Assenting Lenders) of the Affected
Lender’s Pro Rata Share of such credit and Individual
Commitments and obligations under the Credit Facility and rights
and obligations under each of the other Credit Documents on a date
mutually acceptable to the Assenting Lenders and the Obligors. On
such date, the Assenting Lenders shall extend to the Obligors the
Affected Lender’s Pro Rata Share of such credit and shall
prepay to the Affected Lender the advances of the Affected Lender
then outstanding, together with all interest accrued thereon and
all other amounts owing to the Affected Lender hereunder, and, upon
such advance and prepayment by the Assenting Lenders, the Affected
Lender shall cease to be a “Lender” for purposes of
this Agreement and shall no longer have any obligations hereunder,
subject always to its continuing obligations pursuant to
Section 9.4. Upon the assumption
of the Affected Lender’s Individual Commitments as aforesaid
by an Assenting Lender, Schedule A hereto shall be deemed to be
amended to increase the Individual Commitment of such Assenting
Lender by the respective amounts of such assumption.
Upon notice from
the Administrative Agent to the Obligors (which notice shall be
accompanied by a detailed calculation of the amount to be paid by
the Obligors), the Obligors shall pay to the Administrative Agent
or the Lenders such amount or amounts as will compensate the
Administrative Agent or the Lenders (including, for certainty, the
Issuing Lender) for any loss, cost or expense incurred by them
arising from claims or legal proceedings, and including reasonable
legal fees and disbursements, respecting the collection of amounts
owed by the Obligors hereunder in respect of any Letter or the
enforcement of the Administrative Agent, the Issuing Lender or the
Lenders’ rights hereunder in respect of such Letter
including, without limitation, legal proceedings attempting to
restrain the Administrative Agent, the Issuing Lender or the
Lenders from paying any amount under such Letter.
(a)
The Obligors hereby agree to
indemnify and hold the Administrative Agent, each Lender, the
Issuing Lender and each of their respective shareholders, officers,
directors, employees, and agents (collectively, the
“Indemnified
Parties”) free and harmless from and against any and
all claims, demands, actions, causes of action, suits, losses,
costs, charges, liabilities and damages, and expenses in connection
therewith (irrespective of whether such Indemnified Party is a
party to the action for which indemnification hereunder is sought),
and including, without limitation, reasonable legal fees and out of
pocket disbursements and amounts paid in settlement which are
approved by the Obligors (collectively in this
Section 8.5(a), the
“Indemnified
Liabilities”), incurred or suffered by, or asserted
against, the Indemnified Parties or any of them as a result of, or
arising out of, or relating to (i) the extension of credit
contemplated herein, (ii) any transaction financed or to be
financed in whole or in part, directly or indirectly, with the
proceeds of any credit extended hereunder, (iii) any actual or
threatened investigation, litigation or other proceeding relating
to any credit extended or proposed to be extended as contemplated
herein or (iv) the execution, delivery, performance or
enforcement of the Credit Documents and any instrument, document or
agreement executed pursuant hereto or thereto, except to the extent
that any such Indemnified Liabilities is found in a final,
non-appealable judgement of a court of competent jurisdiction to
have resulted primarily from such Indemnified Party’s gross
negligence or wilful misconduct.
(b)
Without limiting the generality of
the indemnity set out in the preceding clause (a), the
Obligors hereby further agree to indemnify and hold the Indemnified
Parties free and harmless from and against any and all claims,
demand, actions, causes of action, suits, losses, costs, charges,
liabilities and damages, and expenses in connection therewith,
including, without limitation, reasonable legal fees and out of
pocket disbursements and amounts paid in settlement which are
approved by the Obligors, of any and every kind whatsoever paid
(collectively in this Section 8.5(b), the “Indemnified Liabilities”),
incurred or suffered by, or asserted against, the Indemnified
Parties or any of them for, with respect to, or as a direct or
indirect result of, (i) the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission or release
from, any real property legally or beneficially owned (or any
estate or interest which is owned), leased, used or operated by any
Company of any Hazardous Material, Contaminant, Pollutant or Waste,
and (ii) any other violation of an Environmental Law by any
Company, and regardless of whether caused by, or within the control
of, such Company, except for any such Indemnified Liabilities that
a court of competent jurisdiction determines arose on account of an
Indemnified Party’s gross negligence or wilful
misconduct.
(c)
All obligations provided for
in this Section 8.5 shall survive
indefinitely the permanent repayment of the outstanding credit
hereunder and the termination of the Credit Agreement. The
obligations provided for in this Section 8.5 shall not be reduced or impaired by any
investigation made by or on behalf of the Administrative Agent, the
Issuing Lender or any of the Lenders.
(d)
The Obligors hereby agree
that, for the purposes of effectively allocating the risk of loss
placed on the Obligors by this Section 8.5, the Administrative Agent, the Issuing
Lender and each Lender shall be deemed to be acting as the agent or
trustee on behalf of and for the benefit of their respective
shareholders, officers, directors, employees and
agents.
(e)
If, for any reason, the
obligations of the Obligors pursuant to this Section 8.5 shall be unenforceable, the Obligors agree
to make the maximum contribution to the payment and satisfaction of
each obligation that is permissible under Applicable
Law.
(a)
Any and all payments made by the
Obligors under this Agreement or under any other Credit Document
(any such payment being hereinafter referred to as a
“Payment”) to or
for the benefit of the Administrative Agent or any Lender shall be
made without set-off or counterclaim, and free and clear of, and
without deduction or withholding for, or on account of, any and all
present or future Indemnified Taxes or Other Taxes except to the
extent that such deduction or withholding is required by law or the
administrative practice of any Official Body. If any such
Indemnified Taxes or Other Taxes are so required to be deducted or
withheld from or in respect of any Payment made to or for the
benefit of the Administrative Agent or any Lender, the Obligors
shall:
(i)
promptly notify the
Administrative Agent of such requirement;
(ii)
pay to the Administrative
Agent or such Lender, as the case may be, in addition to the
Payment to which the Administrative Agent or such Lender is
otherwise entitled, such additional amount as is necessary to
ensure that the net amount actually received by the Administrative
Agent or such Lender (free and clear of, and net of, any such
Indemnified Taxes or Other Taxes, including the full amount of any
Indemnified Taxes or Other Taxes required to be deducted or
withheld from any additional amount paid by the Obligors under this
Section 8.6(a), whether assessable
against the Obligors, the Administrative Agent or such Lender)
equals the full amount the Administrative Agent or such Lender, as
the case may be, would have received had no such deduction or
withholding been required;
(iii)
make such deduction or
withholding;
(iv)
pay to the relevant Official
Body in accordance with Applicable Law the full amount of
Indemnified Taxes or Other Taxes required to be deducted or
withheld (including the full amount of Indemnified Taxes or Other
Taxes required to be deducted or withheld from any additional
amount paid by an Obligor to the Administrative Agent or such
Lender under this Section 8.6(a)),
within the time period required by Applicable Law; and
(v)
(b)
If the Administrative Agent or any
Lender is subject to Indemnified Taxes under Part XIII of the Tax
Act (or any successor part) in respect of any Payment made by
an Obligor but such Indemnified Taxes are not levied by way of
deduction or withholding (all such Taxes being “Non-Withheld Part XIII Taxes”),
the Obligors shall pay to the Administrative Agent or such Lender,
as the case may be, at the time an Obligor makes such Payment and
in addition to such Payment, such additional amount as is necessary
to ensure that the total amount received by the Administrative
Agent or such Lender, as the case may be, is equal to the Payment
plus the amount of Non-Withheld Part XIII Taxes exigible in respect
of the aggregate of the Payment and the additional amount payable
under this Section 8.6(b).
(c)
In addition, the Obligors
agree to pay to the applicable Official Body any and all Other
Taxes.
(d)
The Obligors hereby indemnify
and hold harmless the Administrative Agent and each Lender for the
full amount of Indemnified Taxes and Other Taxes, including
Non-Withheld Part XIII Taxes, interest, penalties and other
liabilities, levied, imposed or assessed against (and whether or
not paid directly by) the Administrative Agent or such Lender, as
applicable, and for all expenses, resulting from or relating to the
Obligors’ failure to:
(i)
remit to the Administrative
Agent or such Lender the documentation referred to in Section
8.6(a)(v);
(iii)
pay to the Administrative
Agent or applicable Lender any Non-Withheld Part XIII Taxes in
accordance with Section 8.6(b),
whether or not
such Indemnified Taxes or Other Taxes were correctly or legally
assessed. The Administrative Agent or any Lender who pays any
Indemnified Taxes or Other Taxes (other than Non-Withheld Part XIII
Taxes), and the Administrative Agent or any Lender who pays any
Non-Withheld Part XIII Taxes in excess of the amount (if any) paid
by the Obligors on account thereof under Section 8.6(b), shall promptly notify the Obligors of
such payment, provided, however, that failure to provide such
notice shall not detract from, or compromise, the obligations of
the Obligors under this Section 8.6.
Payment pursuant to this indemnification shall be made within 30
days from the date the Administrative Agent or the relevant Lender,
as the case may be, makes written demand therefor accompanied by a
certificate as to the amount of such Indemnified Taxes or Other
Taxes and the calculation thereof, which calculation shall be
prima facie evidence of
such amount.
(e)
If the Obligors determine in
good faith that a reasonable basis exists for contesting any
Indemnified Taxes or Other Taxes for which a payment has been made
under this Section 8.6, the relevant
Lender or the Administrative Agent, as applicable, shall, if so
requested by the Obligors, cooperate with the Obligors in
challenging such Indemnified Taxes or Other Taxes at the
Obligors’ expense.
(f)
If any Lender or the
Administrative Agent, as applicable, receives a refund of, or
credit for, Indemnified Taxes, Other Taxes or Non-Withheld Part
XIII Taxes for which a payment has been made by the Obligors under
this Section 8.6, which refund or
credit in the good faith judgment of such Lender or the
Administrative Agent, as the case may be, is attributable to the
Indemnified Taxes, Other Taxes or Non-Withheld Part XIII Taxes
giving rise to such payment made by an Obligor, then the Lender or
the Administrative Agent, as the case may be, shall reimburse the
Obligors for such amount (if any, but not exceeding the amount of
any payment made under this Section 8.6 that gives rise to such refund or credit),
net of out-of-pocket expenses of such Lender or the Administrative
Agent, as the case may be, which the Administrative Agent or such
Lender, as the case may be, determines in its absolute discretion
will leave it, after such reimbursement, in no better or worse
position than it would have been in if such Indemnified Taxes,
Other Taxes or Non-Withheld Part XIII Taxes had not been exigible.
The Obligors, upon the request of the Administrative Agent or any
Lender, agree to repay the Administrative Agent or such Lender, as
the case may be, any portion of any such refund or credit paid over
to the Obligors that the Administrative Agent or such Lender, as
the case may be, is required to pay to the relevant Official Body
and agrees to pay any interest, penalties or other charges paid by
such Lender or the Administrative Agent, as the case may be, as a
result of or related to such payment to such Official Body. Neither
the Administrative Agent nor any Lender shall be under any
obligation to arrange its tax affairs in any particular manner so
as to claim any refund or credit. None of the Lenders nor the
Administrative Agent shall be obliged to disclose any information
regarding its tax affairs or computations to the Obligors or any
other Person in connection with this Section 8.6(f) or any other provision of this
Section 8.6.
(g)
Any Lender that is entitled to an
exemption from or reduction of withholding tax or Non-Withheld Part
XIII Taxes under the law of the jurisdiction in which an Obligor is
resident for tax purposes, or any treaty to which such jurisdiction
is a party, with respect to Payments shall, at the request of an
Obligor, deliver to such Obligor (with a copy to the Administrative
Agent), at the time or times prescribed by Applicable Law or
reasonably requested by such Obligor or the Administrative Agent,
such properly completed and executed documentation prescribed by
Applicable Law (if any) as will permit such payments to be made
without withholding or at a reduced rate of withholding or a
reduced rate of Non-Withheld Part XIII Taxes. In addition, (i) any
Lender, if requested by an Obligor or the Administrative Agent,
shall deliver such other documentation prescribed by Applicable Law
(if any) or reasonably requested by such Obligor or the
Administrative Agent as will enable such Obligor or the
Administrative Agent to determine whether or not such Lender is
subject to withholding or information reporting requirements, and
(ii) any Lender that ceases to be, or to be deemed to be, resident
in Canada for purposes of Part XIII of the Tax Act or any successor
provision thereto in respect of Payments shall within five Business
Days thereof notify such Obligor and the Administrative Agent in
writing. Notwithstanding the foregoing, no Lender shall be required
to deliver any documentation pursuant to this Section 8.6(g) that such Lender is not legally able to
deliver.
(h)
Additional amounts payable
under Section 8.6(a) and Non-Withheld
Part XIII Taxes payable under Section 8.6(b) have the same character as the Payments
to which they relate. For greater certainty, for example,
additional amounts payable under Section 8.6(a) or Non-Withheld Part XIII Taxes payable
under Section 8.6(b), in respect of
interest payable under a Credit Document, shall be payments of
interest under such Credit Document. All payments made under this
Section 8.6 shall be subject to the
provisions of this Section 8.6.
(i)
The Obligors’
obligations under this Section 8.6 shall survive without limitation the
termination of the Credit Facility and this Agreement and all other
Credit Documents and the permanent repayment of the outstanding
credit and all other amounts payable hereunder.
Article 9
The Borrower
shall repay to the Lenders in full the outstanding credit granted
to the Borrower under the Credit Facility on the Maturity Date
together with all accrued and unpaid interest thereon and all
accrued and unpaid fees with respect thereto. As concerns any
Letter issued for the account of the Borrower which, on the
Maturity Date, has an expiry date later than the Maturity Date, the
Borrower shall pay to the Issuing Lender, on the Maturity Date, the
then contingent liability of the Issuing Lender thereunder (to be
held solely for the purpose of satisfying any draw under such
Letter and to be held subject to Section 13.2). Following such payment by the Borrower
to the Issuing Lender, the Borrower shall have no further liability
to the Lenders with respect to any such Letter.
On each occasion
that a Prepayment Trigger Event occurs, the Borrower shall give
written notice thereof to the Administrative Agent and shall,
within two Banking Days after the occurrence of any Prepayment
Trigger Event, pay to the Issuing Lender an amount equal to the
Prepayment Amount as cash collateral for the then contingent
liability of the Issuing Lender under any one or more Letters (such
amount be held solely for the purpose of satisfying any draw under
such Letter and to be held subject to Section 13.2). Amounts cash
collateralized to the Credit Facility as set forth in this Section
9.2 may not be reborrowed.
(a)
On presentation of a Letter
and payment thereunder by the Issuing Lender, the Borrower shall
forthwith pay to the Administrative Agent for the account of the
Issuing Lender, and thereby reimburse the Issuing Lender for, all
amounts paid by the Issuing Lender pursuant to such
Letter.
(b)
Each Lender shall immediately
on demand indemnify the Issuing Lender to the extent of such
Lender’s Pro Rata Share of any amount paid or liability
incurred by the Issuing Lender under each Letter issued by it to
the extent that the Borrower do not fully reimburse the Issuing
Lender therefor.
Subject to
Section 13.2, the Borrower shall
pay to the Issuing Lender an amount equal to the maximum amount
available to be drawn under any unexpired Letter which becomes the
subject of any Order; payment in respect of each such Letter shall
be due forthwith upon demand.
All payments and
repayments of outstanding credit hereunder shall be made in the
currency of such outstanding credit.
In the event that
there is a Credit Excess at any time, the Borrower shall, on
demand, pay to the Issuing Lender an amount equal to such Credit
Excess to cash collateralize the contingent liability of the
Issuing Lender under any one or more Letters (to be held solely for
the purpose of satisfying any draw under a Letter and to be held
subject to Section 13.2).
Article 10
To induce the
Lenders and the Administrative Agent to enter into this Agreement
and to induce the Lenders to extend credit hereunder, the Parent,
for and on its own behalf and each other Company, hereby represents
and warrants to the Lenders and the Administrative Agent, as of the
date of this Agreement, as of the date of each extension of credit
to the Borrower hereunder and as of the last day of each Fiscal
Quarter, as follows and acknowledges and confirms that the Lenders
and the Administrative Agent are relying upon such representations
and warranties in entering into this Agreement and in extending
credit hereunder to the Borrower:
(a)
Status and Power of Companies. Each
Material Company is a corporation duly incorporated and organized
and validly subsisting in good standing under the laws of its
jurisdiction of incorporation. Each Material Company is duly
qualified, registered or licensed in all jurisdictions where the
failure to do so would reasonably be expected to have a Material
Adverse Effect. Each Material Company has all requisite corporate
capacity, power and authority to own, hold under licence or lease
its properties, to carry on its business as now conducted. Each
Obligor has all requisite corporate capacity to enter into, and
carry out the transactions contemplated by, the Credit Documents to
which is a party.
(b)
Authorization and Enforcement. All
necessary action, corporate or otherwise, has been taken to
authorize the execution, delivery and performance by each Obligor
of the Credit Documents to which it is a party. Each Obligor has
duly executed and delivered the Credit Documents to which it is a
party. The Credit Documents to which each Obligor is a party are
legal, valid and binding obligations of such Obligor, enforceable
against such Obligor in accordance with its terms, except to the
extent that the enforceability thereof may be limited by
(i) applicable bankruptcy, insolvency, moratorium,
reorganization and other laws of general application limiting the
enforcement of creditors’ rights generally, (ii) the
fact that the courts may deny the granting or enforcement of
equitable remedies and (iii) the fact that, pursuant to the
Currency Act (Canada), no
court in Canada may make an order expressed in any currency other
than lawful money of Canada.
(c)
Compliance with Other Instruments. The
execution, delivery and performance by each Obligor of the Credit
Documents to which it is a party, and the consummation of the
transactions contemplated herein and therein, do not and will not
conflict with, result in any breach or violation of, or constitute
a default under, the terms, conditions or provisions of the charter
or constating documents or by-laws of, or any shareholder agreement
or declaration relating to, such Obligor or of any law, regulation,
judgment, decree or order binding on or applicable to such Obligor
or to which its property is subject or of any material agreement,
lease, licence, permit or other instrument to which such Obligor is
a party or is otherwise bound or by which such Obligor benefits or
to which its property is subject and do not require the consent or
approval of any Official Body or any other party other than those
consents under the Material Contracts which have already been
obtained and delivered to the Administrative Agent.
(d)
Financial Statements. The consolidated
financial statements of the Parent for the most recently completed
Fiscal Quarter or Fiscal Year, as the case may be, were prepared in
accordance with International Financial Reporting Standards and no
Material Adverse Change has occurred in the condition, financial or
otherwise, of the Parent since the date of such financial
statements. The consolidated balance sheet of the aforesaid
financial statement presents a fair statement in all material
respects of the financial condition and assets and liability of the
Parent as at the date thereof and the consolidated statements of
operations, retained earnings and cashflows contained in the
aforesaid consolidated financial statements fairly presents in all
material respects the results of the operations of the Parent
throughout the period covered thereby. Except to the extent
reflected or reserved against in the aforesaid balance sheet
(including the notes thereto) and except as incurred in the
ordinary and usual course of the business of the Parent, the Parent
does not at the date of such statements have any outstanding
indebtedness or any liability or obligations (whether accrued,
absolute, contingent or otherwise) of a material nature required to
be reflected or reserved against in a balance sheet (including the
notes thereto) prepared in accordance with International Financial
Reporting Standards.
(e)
Litigation. There are no actions, suits,
inquiries, claims or proceedings (whether or not purportedly on
behalf of any Material Company) pending or threatened in writing
against or affecting any Material Company before any Official Body
which in any case or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
(f)
Title to Assets. Each Material Company
owns all of its property, assets and undertaking, free from any
Lien other than the Permitted Liens.
(g)
Conduct of Business. No Company is in
violation of any agreement, mortgage, franchise, licence, judgment,
decree, order, statute, statutory trust, rule or regulation
relating in any way to itself or to the operation of its business
or to its property or assets (including, without limitation,
Environmental Laws) and which could reasonably be expected to have
a Material Adverse Effect. Each Company holds all licenses,
certificates of approval, approvals, registrations, permits and
consents which are required to operate its businesses where they
are currently being operated except where the failure to have such
licenses, certificates of approval, approvals, registrations,
permits and consents could not reasonably be expected to have a
Material Adverse Effect.
(h)
Outstanding Defaults. No event has
occurred which constitutes or which, with the giving of notice,
lapse of time or both, would constitute a default under or in
respect of any material agreement, undertaking or instrument to
which any Material Company is a party or to which its respective
property or assets may be subject, and which could reasonably be
expected to have a Material Adverse Effect. Notwithstanding the
foregoing, no event has occurred which constitutes or which, with
the giving of notice, lapse of time or both, would constitute a
default under or in respect of any Material Contract and which
could reasonably be expected to have a Material Adverse
Effect.
(i)
Solvency Proceedings. No Material
Company has:
(i)
admitted its inability to pay
its debts generally as they become due or failed to pay its debts
generally as they become due;
(ii)
in respect of itself, filed
an assignment or petition in bankruptcy or a petition to take
advantage of any insolvency statute;
(iii)
made an assignment for the
benefit of its creditors;
(iv)
consented to the appointment
of a receiver of the whole or any substantial part of its
assets;
(v)
filed a petition or answer
seeking a reorganization, arrangement, adjustment or composition in
respect of itself under applicable bankruptcy laws or any other
Applicable Law or statute of Canada, the United States or other
applicable jurisdiction or any subdivision thereof; or
(vi)
been adjudged by a court
having jurisdiction a bankrupt or insolvent, nor has a decree or
order of a court having jurisdiction been entered for the
appointment of a receiver, liquidator, trustee or assignee in
bankruptcy of any Material Company with such decree or order having
remained in force and undischarged or unstayed for a period of
30 days.
(j)
Tax Returns and Taxes. Each Material
Company has filed all Tax returns and Tax reports required by law
to have been filed by it and has paid all Taxes thereby shown to be
owing, except any such Taxes which are being diligently contested
in good faith by appropriate proceedings and for which adequate
reserves in accordance with International Financial Reporting
Standards shall have been set aside on its books.
(k)
Expropriation. There is no present or
threatened (in writing) expropriation of the property or assets of
any Material Company, which expropriation could reasonably be
expected to have a Material Adverse Effect.
(l)
Environmental
Compliance.
(i)
The XxXxxxx Mineral
Properties, the Midwest Mineral Properties and the Xxxxxxx Mineral
Properties and all facilities and property (including underlying
groundwater) owned, leased, used or operated by any Company, to the
knowledge of the Companies have been, and continue to be, owned or
leased in compliance with all Environmental Laws where any such
non-compliance could reasonably be expected to have a Material
Adverse Effect;
(ii)
There are no pending or
threatened (in writing)
(A)
claims, complaints, notices
or requests for information received by any Company with respect to
any alleged violation of any Environmental Law which, if proved,
could reasonably be expected to have a Material Adverse
Effect;
(B)
complaints, notices or
inquiries to any Company regarding potential liability under any
Environmental Law which liability could reasonably be expected to
have a Material Adverse Effect;
(iii)
To the knowledge of the
Companies, there have been no Releases of any Hazardous Materials
or any escape, seepage, leakage, spillage, discharge, emission or
release of any Contaminants, Pollutants or Waste at, on, under or
from the XxXxxxx Mineral Properties, the Midwest Mineral
Properties, the Xxxxxxx Mineral Properties or any property now or
previously owned, operated, used or leased by any Company that,
singly or in the aggregate, have, or could reasonably be expected
to have, a Material Adverse Effect;
(iv)
Each Company has been issued
and is in compliance with all permits, certificates, approvals,
licenses and other authorizations under any Environmental Laws to
carry on its business except where any such non-issuance or
non-compliance could not reasonably be expected to have a Material
Adverse Effect; and
(v)
To the knowledge of the
Companies, no conditions exist at, on or under any property now or
previously owned, operated, used or leased by any Company which,
with the passage of time, or the giving of notice or both, would
give rise to liability under any Environmental Law which liability
could reasonably be expected to have a Material Adverse
Effect.
(m)
Partnerships. No Material Company is,
directly or indirectly, a member of, or a partner or participant
in, any partnership, joint venture or syndicate where the liability
of the relevant Material Company arising from such partnership,
joint venture or syndicate could reasonably be expected to have a
Material Adverse Effect.
(n)
Corporate Structure. As at the date
hereof, and hereafter, except as such information may change as a
result of a transaction permitted hereby and reported to the
Administrative Agent in accordance with Section 11.1(a)(iii), the chart attached hereto as
Schedule E accurately sets out
the corporate structure of the Parent and all of its Subsidiaries
and evidences (i) intercorporate share ownership and
(ii) ownership of Material Assets.
(o)
Assets Insured. The property and assets
of each Material Company are insured with insurers, in amounts, for
risks and otherwise which are reasonable in relation to such
property and assets (subject to the amount of such deductibles as
are reasonable and normal in the circumstances) against loss or
damage, and there has been no default or failure by the party or
parties insured under the provisions of such policies of insurance
maintained which would prevent the recovery by such Material
Company insured thereunder of the full amount of any material
insured loss.
(p)
Consents, Approvals, etc. No consents,
approvals, acknowledgements, undertakings, non-disturbance
agreements, directions or other documents or instruments are
required to be entered into by any Person, to make effective the
Security created or intended to be created by the Obligors in
favour of the Administrative Agent pursuant to the Security
Documents and to ensure the perfection and the intended priority of
such Security.
(q)
Capital of Pledged Subsidiaries. As at
the date hereof, and hereafter, except as such information may
change as a result of a transaction permitted hereby and reported
to the Administrative Agent in accordance with
Section 11.1(a), Schedule G sets out (A) the authorized
and issued capital of each Pledged Subsidiary, all of which issued
shares have been issued and are outstanding as fully paid and
non-assessable and (B) the owner of record of all such issued
shares. Other than as set out in Schedule G there are no outstanding
warrants, options or other agreements which require or may require
the issuance of any shares of any Pledged Subsidiary or the
issuance of any debt or securities convertible into shares of any
Pledged Subsidiary, there are no outstanding debt or securities
convertible into shares of any Pledged Subsidiary and there are no
shares of any Pledged Subsidiary allotted for such issued
shares.
(r)
French Form of Corporate Name. Except as
reported or to be reported to the Administrative Agent in
accordance with Section 11.1(a), there
is no French form of the corporate name of any
Obligor.
(s)
Principal Places of Business; Jurisdictions of
Incorporation. Except as reported or to be reported to the
Administrative Agent in accordance with Section 11.1(a), the location of the Obligors (for the
purposes of Section 8(1) of the Personal Property Security Act
(Ontario) is the Province of Ontario.
(t)
Intellectual Property. Each Material
Company owns or is licensed or otherwise has the right to use all
Intellectual Property that is used in the operation of their
businesses without conflict with the rights of any other Person
(other than any Intellectual Property the absence of which or any
such conflict with respect to which would not have a Material
Adverse Effect). No Material Company has received any notice of any
claim of infringement or similar claim or proceeding relating to
any of the Intellectual Property which if determined against such
Material Company could reasonably be expected to have a Material
Adverse Effect and, to the best knowledge of the Parent, no present
or former employee of any Material Company and no other Person owns
or claims to own or has or claims to have any interest, direct or
indirect, in whole or in part, in any of the Intellectual Property
of the Material Companies that could reasonably be expected to have
a Material Adverse Effect.
(u)
Employment and Labour Agreements. A true
and complete copy of each employment agreement covering management
of any Material Company and each collective bargaining agreement or
other labour agreement covering any employees of any Material
Company which the Administrative Agent has requested has been
furnished to the Administrative Agent. Each Material Company is in
compliance with the terms and conditions of all such collective
bargaining agreements and other labour agreements except where the
failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
(v)
Employee Benefit Plans. Each Employee Benefit Plan and
Pension Plan is in compliance in all material respects with all
Applicable Laws and the respective requirements of the governing
documents for such plan. No Material Company contributes to any
Pension Plan with a defined benefit element. With respect to any
Employee Benefit Plan maintained or contributed to by any Material
Company, reasonable reserves have been established in accordance
with prudent business practice or where required by best accounting
practices in the jurisdiction in which such plan is maintained
having regard to tax legislation. The aggregate unfunded
liabilities, after giving effect to any reserves for such
liabilities, with respect to all Employee Benefit Plans and Pension
Plans could not be reasonably expected to result in a Material
Adverse Effect. There is no proceeding or claim (other than routine
claims for benefits) pending or, to the knowledge of the Parent,
threatened against any Material Company with respect to any
Employee Benefit Plan.
(w)
[Intentionally
Deleted.]
(x)
Proceeds of Crime (Money
Laundering) and Terrorist Financing Act (Canada). The Parent's most recent
audited balance sheet states that the Parent has net assets of at
least $75,000,000. The Parent's shares are traded on a Canadian
stock exchange or a stock exchange designated under subsection
262(1) of the Tax Act. The Parent operates in a country that is a
member of the Financial Action Task Force.
(y)
No Omissions. None of the
representations and statements of fact set forth in this
Section 10.1 omits to state any
material fact necessary to make any such representation or
statement of fact not misleading in any material
respect.
All of the
representations and warranties of the Parent contained in
Section 10.1 shall survive the
execution and delivery of this Agreement until all credit
outstanding hereunder has been repaid in full and the Credit
Facility has been terminated, notwithstanding any investigation
made at any time by or on behalf of the Administrative Agent or any
of the Lenders.
Article 11
The Obligors, as
applicable, hereby covenant and agree with the Administrative Agent
and the Lenders that, until all credit outstanding hereunder has
been repaid in full and the Credit Facility has been terminated,
and unless waived in writing in accordance with
Section 14.4:
(a)
Financial Reporting. The Parent shall
furnish the Administrative Agent with the following statements and
reports (with sufficient copies for all of the Lenders) (the filing
of any of the following documents on SEDAR shall satisfy the
delivery obligation in relation to such documents so filed when the
Parent has provided written notice of such filing to the
Administrative Agent):
(i)
within 120 days after
the end of each Fiscal Year, (i) copies of the audited consolidated
financial statements of the Parent for such Fiscal Year and the
auditors’ report thereon, duly signed by a senior officer of
the Parent and (ii) the then current annual information form of the
Parent as filed on SEDAR which includes an updated statement of the
mineral reserves of the last Fiscal Year;
(ii)
within 60 days after the end
of each Fiscal Year, a copy of the Parent’s consolidated
budget for the current Fiscal Year;
(iv)
concurrent with the
deliveries of financial statements pursuant to clauses (i) and
(iii) above, a duly executed and completed compliance
certificate, in the form attached as Schedule B hereto and signed by a senior
financial officer of the Parent; and
(v)
such other statements,
reports and information as the Administrative Agent on the
instructions of the Majority Lenders may reasonably request from
time to time.
(b)
Copies of Public Filings. The Parent
shall, upon request, furnish the Administrative Agent with copies
of all documents which are filed by any Material Company with the
Ontario Securities Commission or with any similar Official Body in
any other jurisdiction in compliance with applicable securities
legislation which are not available on SEDAR.
(c)
Use of Proceeds. The Borrower shall
apply all of the proceeds of the Credit Facility solely towards its
Reclamation Obligations, up to $500,000 of which may be employed in
respect of such Reclamation Obligations within the geographic
boundaries of the Province of Saskatchewan and otherwise shall be
employed solely in respect of Reclamation Obligations on or at the
XxXxxxx Facilities.
(d)
Insurance. The Parent shall, and shall
cause each other Material Company to, insure and keep insured, with
insurers, for risks, in amounts in a manner consistent with
customary and prudent industry practice (including all deductibles
which are customary and prudent for the industry), all of the
Material Companies’ assets, property and undertaking. The
Parent shall cause the Administrative Agent, for and on behalf of
itself and the other Finance Parties, to be named as a lender loss
payee, as its interest may appear on each property, and additional
insured in each such insurance policy owned by DMI.
(e)
Access to Senior Financial Officers.
Upon the request of the Administrative Agent at reasonable
intervals and upon reasonable prior notice, the Parent shall, and
shall cause each other Material Company to, make available during
regular business hours its senior financial officers to answer
questions concerning such Material Company’s business and
affairs.
(f)
Reimbursement of Expenses. The Obligors
shall (i) reimburse the Administrative Agent, on demand, for
all reasonable out-of-pocket costs, charges and expenses incurred
by or on behalf of the Administrative Agent (including, without
limitation, the reasonable fees, disbursements and other charges of
one primary counsel and any local or special counsel to the
Administrative Agent as well as of any environmental, insurance or
other consultants retained by the Administrative Agent) in
connection with the negotiation, preparation, execution, delivery,
syndication, administration and interpretation of the Credit
Documents and the closing documentation ancillary to the completion
of the transactions contemplated hereby and thereby and any
amendments and waivers hereto or thereto (whether or not
consummated or entered into), the charges of Intralinks and any
lien search fees and (ii) reimburse the Administrative Agent
and the Lenders, on demand, for all reasonable out-of-pocket costs,
charges and expense incurred by or on behalf of any of them
(including the fees, disbursements and other charges of counsel) in
connection with the enforcement of the Credit
Documents.
(g)
Notice of Expropriation or Condemnation.
The Parent shall promptly notify the Administrative Agent of the
commencement or the written threat of any expropriation or
condemnation of any of the Material Assets, property or undertaking
of any Material Company or of the institution of any proceedings
related thereto the result of which would be reasonably expected to
cause a Material Adverse Effect.
(h)
Inspection of Assets and Operations. The
Parent shall, and shall cause each other Material Company to,
permit representatives of the Administrative Agent from time to
time and representatives of the Lenders, at reasonable intervals
and subject to the relevant Material Company’s health and
safety requirements, to inspect the assets, property or undertaking
of any Material Company and for that purpose to enter on any
property which is owned and controlled by any Material Company and
where any of the assets, property or undertaking of a Material
Company may be situated during reasonable business hours and,
unless a Default has occurred and is continuing, upon reasonable
notice and at the Lenders’ expense (for certainty, any such
inspection undertaken during the occurrence and continuance of a
Default shall be at the Obligors’ expense).
(i)
Change of Name, Office or Other
Information. The Parent shall notify the Administrative
Agent in writing (i) promptly of any change in (A) the
legal name of any Obligor; (B) the location of any Obligor for
purposes of Section 8(1) of the Personal Property Security Act
(Ontario), or (C) the jurisdiction of incorporation of any Company;
and (ii) not less than 10 Banking Days prior to the closing
thereof, of any transaction permitted hereby which will result in
any change in the information set out in the representations made
in Section 10.1.
(j)
Corporate Existence. Except as
contemplated by any Permitted Corporate Reorganization, the Parent
shall, and shall cause each other Tier I Material Company to,
maintain its existence in good standing. The Parent shall, and
shall cause each other Tier I Material Company to, qualify and
remain duly qualified to carry on business and own property in each
jurisdiction where the failure to do so could reasonably be
expected to result in a Material Adverse Effect.
(k)
Conduct of Business. The Parent shall,
and shall cause each Company to, conduct its business in such a
manner so as to comply with all laws and regulations (including,
without limitation, Environmental Laws), so as to observe and
perform all its obligations under leases, licences and agreements
necessary for the proper conduct of its business and so as to
preserve and protect its property and assets and the earnings,
income and profits therefrom where such non-compliance,
non-observance or non-performance could reasonably be expected to
have a Material Adverse Effect. The Parent shall, and shall cause
each Material Company to, perform all obligations incidental to any
trust imposed upon it by statute and shall ensure that any breaches
of the said obligations and the consequences of any such breach
shall be promptly remedied where the failure to do so could
reasonably be expected to have a Material Adverse Effect. The
Parent shall, and shall cause each Company to, obtain and maintain
all licenses, permits, government approvals, franchises,
authorizations and other rights necessary for the operation of its
business where failure to do so could reasonably be expected to
have a Material Adverse Effect.
(l)
Taxes. The Parent shall pay, and shall
cause each Material Company to pay, all material Taxes levied,
assessed or imposed upon it and upon its property or assets or any
part thereof, as and when the same become due and payable, save and
except when and so long as the validity of any such Taxes is being
contested in good faith by appropriate proceedings and reserves are
being maintained in accordance with International Financial
Reporting Standards while forfeiture of any part of its property or
assets may result from the failure to so pay during the period of
any such contest.
(m)
Notice of Litigation. The Parent shall
promptly notify the Administrative Agent of any actions, suits,
inquiries, claims or proceedings (whether or not purportedly on
behalf of any Material Company) commenced or threatened in writing
against or affecting any Material Company before any Official Body
which in any case or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
(n)
Environmental Matters. The Parent shall,
and shall cause each other Company to, as soon as practicable and
in any event within 30 days, notify the Administrative Agent
and provide copies upon receipt of all written claims, complaints,
notices or inquiries relating to the condition of its facilities
and properties or compliance with Environmental Laws, which claims,
complaints, notices or inquiries relate to matters which could
reasonably be expected to have a Material Adverse Effect, and shall
proceed diligently to resolve any such claims, complaints, notices
or inquiries relating to compliance with Environmental Laws and
provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section 11.1(n).
(p)
[Intentionally
Deleted].
(q)
[Intentionally
Deleted].
(s)
Intercompany Indebtedness. Each Obligor
shall, and shall cause each other Company to, subordinate and
postpone all Indebtedness owing to any Company by the Obligors,
pursuant to the Postponement and Subordination Undertaking, to the
Secured Obligations. For certainty, the Postponement and
Subordination Undertaking shall (i) subordinate obligations owing
to any Company by the Obligors to the Secured Obligations owed to
the Finance Parties and (ii) postpone any right of payment to any
Company by the Obligors at any time that a Default has occurred and
is continuing.
(t)
Books and Records. The Parent shall, and
shall cause each other Material Company to, keep proper books of
account and records covering all its business and affairs on a
current basis, make full, true and correct entries of its
transactions in such books, set aside on its books from their
earnings all such proper reserves as required by International
Financial Reporting Standards and permit representatives of the
Administrative Agent to inspect such books of account, records and
documents and to make copies therefrom during normal business hours
and upon reasonable request.
(u)
Notice of Default or Event of Default.
As soon as reasonably practicable and in any event no later than
three Banking Days after becoming aware of the occurrence of either
a Default or an Event of Default of which an Obligor is aware, such
Obligor, as the case may be, shall promptly deliver to the
Administrative Agent a notice specifying the nature and date of
occurrence of such Default or Event of Default, the relevant
Obligor’s assessment of the duration and effect thereof and
the action which such Obligor proposes to take with respect
thereto.
The Parent hereby
covenants and agrees with the Administrative Agent and the Lenders
that, until all credit outstanding hereunder has been repaid in
full and the Credit Facility has been terminated, and unless waived
in writing in accordance with Section 14.14:
(a)
Liens. The Parent shall not, and shall
not permit or suffer any other Company to, enter into or grant,
create, assume or suffer to exist any Lien affecting, any of their
respective properties, assets or undertaking, whether now owned or
hereafter acquired, save and except only for the Permitted
Liens.
(b)
Corporate Existence. Except for
Permitted Reorganizations, the Parent shall not, and shall not
permit or suffer any other Tier I Material Company to, take part in
any Corporate Reorganization or Capital
Reorganization.
(c)
Change in Business. Except for Permitted
Reorganizations, the Parent shall not, and shall not suffer or
permit any other Material Company to, discontinue its business or
any material part thereof or change the nature of its
business.
(e)
Distributions. The Parent shall not make
any Distribution provided, however, the Parent shall be entitled to
engage in any reasonable normal course issuer bid and to pay
interest on any subordinated Indebtedness permitted hereby provided
no Default has occurred and is continuing at the time of making any
such Distribution and no Default would arise immediately
after the making of any such Distribution.
(f)
Indebtedness. The Parent shall not, and
shall not suffer or permit any other Company to create, incur,
assume or suffer to exist any Indebtedness other than Permitted
Indebtedness.
(g)
Acquisitions. Unless otherwise consented
to in writing by the Majority Lenders, the Parent shall not, and
shall not suffer or permit any other Company to, make any
Acquisitions other than Permitted Acquisitions.
(h)
Risk Management Agreements. The Parent
shall not, and shall not suffer or permit any other Material
Company to, enter into any Risk Management Agreement (i) for
speculative purposes, (ii) with a counter-party on a margined or
cash collateralized basis, (iii) on a secured basis with any
counterparty other than a Lender pursuant to a Security Document,
(iv) with a counterparty which does not have a rating of BBB+ or
better from S&P, or (v) that would result, at the time of the
transaction effected pursuant thereto, in more than 60% of the
consolidated projected production of any given commodity of the
Companies for any Fiscal Quarter being subject to delivery
obligations or contingent delivery obligations.
(i)
Amendments. The Parent shall not, and
shall not suffer or permit any of the Material Companies to, amend
their articles of incorporation, other than to effect a transaction
permitted hereunder or for changes that are to be reported to the
Administrative Agent pursuant hereto.
(j)
Investments. The Parent shall not, and
shall not permit any of the other Companies to, make any
Investments in any Person, except:
(i)
extensions of trade credit
and asset purchases in the ordinary course of
business;
(ii)
Investments in any Company
which is in existence as of the date of this agreement;
and
(iii)
additional Investments in the
mining industry made on and after December 31, 2013 up to a maximum
consolidated aggregate of $25,000,000 in cash made at a time when
no Default has occurred and is continuing or would arise as a
result of such Investment; provided, however, consideration paid
for Investments in the mining industry shall not be limited or
constrained, nor the limits thereof shall be reduced, where such
consideration, or to the extent such consideration, is paid with
the proceeds of (x) Subordinated Indebtedness raised within the one
year period prior to the date of the subject Investment, (y) Equity
raised within the one year period prior to the date of the subject
Investment or (z) any combination of the foregoing.
provided, in each
case, that no Default or Event of Default exists at the time of
such Investment and no Default or Event of Default would exist
immediately after making such Investment.
(k)
Transactions with Affiliates. The Parent
shall not, and shall not suffer or permit any other Company to,
enter into any transaction including, without limitation, any
management or consulting agreement with any of its Affiliates which
could reasonably be expected to cause a Material Adverse
Effect.
(l)
Sale Leasebacks. Subject to the
following sentence, the Parent shall not, and shall not suffer or
permit any of the other Company to, enter into any Sale Leasebacks.
The Obligors shall be entitled to enter into Sale Leasebacks to the
extent the sale component thereof complies with, and is counted for
the purpose of, paragraph (d) of the definition of
“Permitted
Dispositions”.
The
Administrative Agent may, on the instructions of the Majority
Lenders and upon notice pursuant to Section 16.1 by the Administrative Agent to the
Parent, perform any covenant of an Obligor under this Agreement
which such Obligor fails to perform or cause to be performed and
which the Administrative Agent is capable of performing, including
any covenants the performance of which requires the payment of
money, provided that the Administrative Agent shall not be
obligated to perform any such covenant on behalf of such Obligor
and no such performance by the Administrative Agent shall require
the Administrative Agent to further perform such Obligor’s
covenants or shall operate as a derogation of the rights and
remedies of the Administrative Agent and the Lenders under this
Agreement or as a waiver of such covenant by the Administrative
Agent. Any amounts paid by the Administrative Agent as aforesaid
shall be reimbursed by the Lenders in their Pro Rata Shares and
shall be repaid by the Obligors to the Administrative Agent on
behalf of the Lenders on demand.
Article 12
The obligation of
the Lenders to extend credit hereunder is subject to fulfilment of
the following conditions precedent on the date such credit is
extended:
(a)
the Borrower shall have
complied with the requirements of Article 4, 5 or 6, as the case
may be, in respect of the relevant credit;
(b)
no Default has occurred and
is continuing or would arise immediately after giving effect to or
as a result of such extension of credit;
(c)
the representations and
warranties of the Parent contained in Section 10.1 shall be true and correct in all respects
on the date such credit is extended as if such representations and
warranties were made on such date; and
(d)
the Credit Facility has not
been terminated pursuant to Section 2.4.
The Existing
Credit Agreement shall be amended and restated as per this
Agreement, upon the fulfilment of the following conditions
precedent:
(a)
each Obligor shall have
executed and delivered this agreement;
(b)
the Administrative Agent has
received, in form and substance satisfactory to the Administrative
Agent:
(i)
a certificate of status or
good standing for each Obligor issued by the appropriate Official
Body of the jurisdiction in which such Obligor is
incorporated;
(ii)
a duly certified copy of the
resolution of the board of directors of the Obligors authorizing
each to execute, deliver and perform its obligations under this
Agreement;
(iii)
a certificate of a senior
officer of the Parent, in such capacity, certifying that, to the
best of his knowledge after due inquiry, no Default has occurred
and is continuing or would arise immediately upon this Agreement
becoming effective;
(iv)
except as delivered under the
Existing Credit Agreement, share certificates representing all of
the issued and outstanding shares of the Borrower duly endorsed in
blank for transfer or attached to duly executed stock transfers and
powers of attorney or as otherwise required under Applicable Law;
and
(v)
an opinion of counsel to the
Obligors addressed to the Lenders, the Administrative Agent and its
counsel, relating to the status and capacity of the Obligors, the
due authorization, execution and delivery and the validity and
enforceability of this Agreement and such other matters as the
Administrative Agent may reasonably request;
(c)
there has not occurred a
Material Adverse Change since September 30, 2014;
(d)
there shall exist no pending
or threatened litigation, proceedings or investigations which (x)
contest the consummation of the Credit Facility or any part thereof
or (y) could reasonably be expected to have a Material Adverse
Effect; and
(e)
the Administrative Agent and
its counsel shall be satisfied, acting reasonably, that all
necessary approvals, acknowledgements, directions and consents have
been given and that all relevant laws have been complied with in
respect of all agreements and transactions referred to
herein.
The terms and
conditions of Sections 12.1 and
12.2 are inserted for the sole benefit
of the Administrative Agent and the Lenders, and the Lenders may
waive them in accordance with Section 14.14, in whole or in part, with or without
terms or conditions, in respect of any extension of credit, without
prejudicing their right to assert the terms and conditions of
Section 12.1 in whole or in part
in respect of any other extension of credit.
Article 13
Upon the
occurrence of any one or more of the following events, unless
expressly waived in writing in accordance with
Section 14.14:
(a)
the breach by the Borrower of
the provisions of Section 9.1;
(c)
the commencement by any
Material Company or by any other Person of proceedings for the
dissolution, liquidation or winding up of such Material Company or
for the suspension of operations of such Company (other than
pursuant to a Permitted Corporate Reorganization or other
transaction not prohibited hereunder and other than such
proceedings commenced by another Person which are diligently
defended and are discharged, vacated or stayed within thirty days
after commencement);
(d)
if any Company ceases or
threatens to cease to carry on its business or is adjudged or
declared bankrupt or insolvent or admits its inability to pay its
debts generally as they become due or fails to pay its debts
generally as they become due or makes an assignment for the benefit
of creditors, petitions or applies to any tribunal for the
appointment of a receiver or trustee for it or for any part of its
property (or such a receiver or trustee is appointed for it or any
part of its property), or commences (or any other Person commences)
any proceedings relating to it under any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction whether now or
hereafter in effect (other than such proceedings commenced by
another Person which are diligently defended and are discharged,
vacated or stayed within thirty days after commencement), or by any
act indicates its consent to, approval of, or acquiescence in, any
such proceeding for it or for any part of its property, or suffers
the appointment of any receiver or trustee, sequestrator or other
custodian;
(e)
if any representation or
warranty made by an Obligor in this Agreement or in the other
Credit Documents or referred to herein or any material information
furnished in writing to the Administrative Agent by an Obligor
proves to have been incorrect when made or furnished and continues
to be incorrect for thirty days after the Administrative Agent has
given an Obligor notice thereof pursuant to the notice provisions
thereof;
(f)
if a writ, execution,
attachment or similar process is issued or levied against all or
any portion of the property of any Company in connection with any
judgment against it in an amount of at least $10,000,000 and such
writ, execution, attachment or similar process is not released,
bonded, satisfied, discharged, vacated or stayed within thirty days
after its entry, commencement or levy;
(h)
[Intentionally Deleted];
(i)
the breach or failure of due
observance or performance by an Obligor of any covenant or
provision of any Credit Document (other than those previously
referred to in this Section 13.1)
or of any other document, agreement or instrument delivered
pursuant hereto or thereto or referred to herein or therein to
which the Administrative Agent or any of the Lenders is a party and
such breach or failure continues for 30 days after the
Administrative Agent has given an Obligor notice of such breach or
failure;
(j)
if one or more encumbrancers,
liens or landlords take possession of any part of the property of
any Company or attempt to enforce their security or other remedies
against such property (other than at the expiry of the relevant
lease) and their claims remain unsatisfied for such period as would
permit such property to be sold thereunder and such property which
has been repossessed or is capable of being sold has an aggregate
fair market value of at least $10,000,000;
(k)
if an event of default under
any one or more agreements, indentures or instruments, under which
any Company has outstanding Indebtedness in an amount of at least
$10,000,000 or under which another Person has outstanding
Indebtedness in an amount of at least $10,000,000 which is
guaranteed by any Company, shall occur and be continuing and which
results in the acceleration of payment of such Indebtedness or
which permits the holder thereof to accelerate the payment of such
Indebtedness (whether or not actually accelerated) and with all
applicable grace periods having expired, or if any Indebtedness of
or guaranteed by any Company in an amount of at least $10,000,000
which is payable on demand is not paid on demand;
(m)
any one or more of the Credit
Documents is determined by a court of competent jurisdiction not to
be a legal, valid and binding obligation of an Obligor party
thereto, enforceable by the Administrative Agent, the Lenders or
any of them against such Obligor and such Credit Document has not
been replaced by a legal, valid, binding and enforceable document
which is equivalent in effect to such Credit Document, assuming
such Credit Document had originally been legal, valid, binding and
enforceable, in form and substance acceptable to the Administrative
Agent, within 30 days of such determination, provided,
however, that such grace period shall only be provided if such
Obligor actively co-operates with the Administrative Agent to so
replace such Credit Document;
(n)
a material adverse change
occurs such that the Majority Lenders, acting reasonably, determine
that any Obligor’s ability to perform its obligations under
any Credit Document to which it is a party is impaired;
or
(o)
notwithstanding any other
provision of this Credit Agreement, (x) the termination or
cancellation of a Material Contract or (y) any notice of
termination or cancellation of a Material Contract which is not
being diligently contested by the relevant Obligor and is otherwise
not rescinded or withdrawn by the party serving such notice within
30 days of the effective termination or cancellation date set forth
therein;
the
Administrative Agent (with the approval and instructions of the
Majority Lenders) may, by notice to the Borrower, terminate the
Credit Facility (provided, however, that the Credit Facility shall
automatically terminate, without notice of any kind, upon the
occurrence of an event described in clause (c) or (d) above)
and the Administrative Agent (with the approval and instructions of
the Majority Lenders) may, by the same or further notice to the
Borrower, declare all indebtedness of the Borrower to the Lenders
pursuant to this Agreement (including the then contingent liability
of the Issuing Lender under all Letters) to be immediately due and
payable whereupon all such indebtedness shall immediately become
and be due and payable and the Security shall become immediately
enforceable without further demand or other notice of any kind, all
of which are expressly waived by the Borrower (provided, however,
that all such indebtedness of the Borrower to the Lenders shall
automatically become due and payable and the Security shall become
immediately enforceable, without notice of any kind, upon the
occurrence of an event described in clause (c) or (d) above).
Upon the payment by the Borrower to the Issuing Lender of the then
contingent liability under all outstanding Letters, the Borrower
shall have no further liability to the Issuing Lender with respect
to such Letters.
With respect to
each Letter for which the Issuing Lender has been paid all of its
contingent liability pursuant to Section 9.4 or 13.1 and
provided that all amounts due by the Borrower to the Issuing Lender
under Section 9.4 or 13.1 have been paid, the Issuing Lender agrees
to pay to the Borrower, upon the later of:
(a)
if the Letter is subject to
an Order, the date on which any final and non-appealable order,
judgment or other determination has been rendered or issued either
permanently enjoining the Issuing Lender from paying under such
Letter or terminating any outstanding Order; and
(b)
the earlier of:
(i)
the date on which either the
original counterpart of such Letter is returned to the Issuing
Lender for cancellation or the Issuing Lender is released by the
beneficiary thereof from any further obligations in respect of such
Letter;
(ii)
the expiry of such Letter;
and
(iii)
(where the contingent
liability under such Letter is less than the face amount thereof),
all amounts possibly payable under such Letter have been
paid;
an amount equal
to any excess of the amount received by the Issuing Lender
hereunder in respect of its contingent liability under such Letter
over the total of amounts applied to reimburse the Issuing Lender
for amounts paid by it under or in connection with such Letter (the
Issuing Lender having the right to so appropriate such
funds).
The Borrower
expressly agrees that the rights and remedies of the Administrative
Agent and the Lenders under this Agreement are cumulative and in
addition to and not in substitution for any rights or remedies
provided by law. Any single or partial exercise by the
Administrative Agent or any Lender of any right or remedy for a
default or breach of any term, covenant or condition in this
Agreement does not waive, alter, affect or prejudice any other
right or remedy to which the Administrative Agent or such Lender
may be lawfully entitled for the same default or breach. Any waiver
by the Administrative Agent with the approval of the Majority
Lenders or all of the Lenders in accordance with
Section 14.14 of the strict
observance, performance or compliance with any term, covenant or
condition of this Agreement is not a waiver of any subsequent
default and any indulgence by the Lenders with respect to any
failure to strictly observe, perform or comply with any term,
covenant or condition of this Agreement is not a waiver of the
entire term, covenant or condition or any subsequent default. No
failure or delay by the Administrative Agent or any Lender in
exercising any right shall operate as a waiver of such right nor
shall any single or partial exercise of any power or right preclude
its further exercise or the exercise of any other power or
right.
In addition to
any rights now or hereafter granted under Applicable Law, and not
by way of limitation of any such rights, the Administrative Agent
and each Lender is authorized, at any time that an Event of Default
and has occurred and is continuing without notice to the Obligors
or to any other Person, any such notice being expressly waived by
the Obligors, to set-off, appropriate and apply any and all
deposits, matured or unmatured, general or special, and any other
indebtedness at any time held by or owing by the Administrative
Agent or such Lender, as the case may be, to or for the credit of
or the account of an Obligor against and on account of the
obligations and liabilities of the Obligors which are due and
payable to the Administrative Agent or such Lender, as the case may
be, under the Credit Documents.
Article 14
Each Lender
hereby appoints and authorizes, and hereby agrees that it will
require any assignee of any of its interests in the Credit
Documents (other than the holder of a participation in its
interests herein or therein) to appoint and authorize the
Administrative Agent to take such actions as agent on its behalf
and to exercise such powers under the Credit Documents as are
delegated to the Administrative Agent by such Lender by the terms
hereof, together with such powers as are reasonably incidental
thereto. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable to any of the Lenders
for any action taken or omitted to be taken by it or them
thereunder or in connection therewith, except for its own gross
negligence or wilful misconduct and each Lender hereby acknowledges
that the Administrative Agent is entering into the provisions of
this Section 14.1 on its own
behalf and as agent and trustee for its directors, officers,
employees and agents.
The
Administrative Agent may treat each Lender set forth in Schedule A hereto or the Person
designated in the last notice delivered to it under
Section 16.5 as the holder of all
of the interests of such Lender under the Credit
Documents.
The
Administrative Agent may consult with legal counsel selected by it
as counsel for the Administrative Agent and the Lenders and shall
not be liable for any action taken or not taken or suffered by it
in good faith and in accordance with the advice and opinion of such
counsel.
The
Administrative Agent shall not be under any duty to the Lenders to
examine, enquire into or pass upon the validity, effectiveness or
genuineness of the Credit Documents or any instrument, document or
communication furnished pursuant to or in connection with the
Credit Documents and the Administrative Agent shall, as regards the
Lenders, be entitled to assume that the same are valid, effective
and genuine, have been signed or sent by the proper parties and are
what they purport to be.
With respect to
that portion of the Credit Facility made available by it, the
Administrative Agent shall have the same rights and powers under
the Credit Documents as any other Lender and may exercise the same
as though it were not the Administrative Agent. The Administrative
Agent and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Obligors and
their Affiliates and Persons doing business with the Obligors
and/or any of their Affiliates as if it were not the Administrative
Agent and without any obligation to account to the Lenders
therefor.
The duties and
obligations of the Administrative Agent to the Lenders under the
Credit Documents are only those expressly set forth herein. The
Administrative Agent shall not have any duty to the Lenders to
investigate whether a Default or an Event of Default has occurred.
The Administrative Agent shall, as regards the Lenders, be entitled
to assume that no Default or Event of Default has occurred and is
continuing unless the Administrative Agent has actual knowledge or
has been notified by the Obligors of such fact or has been notified
by a Lender that such Lender considers that a Default or Event of
Default has occurred and is continuing, such notification to
specify in detail the nature thereof.
The
Administrative Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights
which may be vested in it on behalf of the Lenders by and under
this Agreement; provided, however, that the Administrative Agent
shall not exercise any rights under Section 13.1 or under the Security Documents or
expressed to be on behalf of or with the approval of the Majority
Lenders without the request, consent or instructions of the
Majority Lenders. Furthermore, any rights of the Administrative
Agent expressed to be on behalf of or with the approval of the
Majority Lenders shall be exercised by the Administrative Agent
upon the request or instructions of the Majority Lenders. The
Administrative Agent shall incur no liability to the Lenders under
or in respect of any of the Credit Documents with respect to
anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or
desirable in the circumstances, except for its gross negligence or
wilful misconduct. The Administrative Agent shall in all cases be
fully protected in acting or refraining from acting under any of
the Credit Documents in accordance with the instructions of the
Majority Lenders and any action taken or failure to act pursuant to
such instructions shall be binding on all Lenders. In respect of
any notice by or action taken by the Administrative Agent
hereunder, the Obligors shall at no time be obliged to enquire as
to the right or authority of the Administrative Agent to so notify
or act.
In the event that
the Administrative Agent shall acquire actual knowledge or shall
have been notified of any Default or Event of Default, the
Administrative Agent shall promptly notify the Lenders and shall
take such action and assert such rights under Section 13.1 of this Agreement and under the other
Credit Documents as the Majority Lenders shall request in writing
and the Administrative Agent shall not be subject to any liability
by reason of its acting pursuant to any such request. If the
Majority Lenders shall fail for five Banking Days after receipt of
the notice of any Default or Event of Default to request the
Administrative Agent to take such action or to assert such rights
under any of the Credit Documents in respect of such Default or
Event of Default, the Administrative Agent may, but shall not be
required to, and subject to subsequent specific instructions from
the Majority Lenders, take such action or assert such rights (other
than rights under Section 13.1 of
this Agreement or under the other Credit Documents and other than
giving an express waiver of any Default or any Event of Default) as
it deems in its discretion to be advisable for the protection of
the Lenders except that, if the Majority Lenders have instructed
the Administrative Agent not to take such action or assert such
rights, in no event shall the Administrative Agent act contrary to
such instructions unless required by law to do so.
The
Administrative Agent shall be under no liability or responsibility
whatsoever as agent hereunder:
(a)
to either Obligor or any
other Person as a consequence of any failure or delay in the
performance by, or any breach by, any Lender or Lenders of any of
its or their obligations under any of the Credit
Documents;
(c)
to any Lender or Lenders for
any statements, representations or warranties in any of the Credit
Documents or in any other documents contemplated hereby or thereby
or in any other information provided pursuant to any of the Credit
Documents or any other documents contemplated hereby or thereby or
for the validity, effectiveness, enforceability or sufficiency of
any of the Credit Documents or any other document contemplated
hereby or thereby.
The Lenders agree
to indemnify the Administrative Agent (to the extent not reimbursed
by the Obligors) in their respective Pro Rata Shares from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way
relating to or arising out of any of the Credit Documents or any
other document contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under any of the Credit
Documents or any document contemplated hereby or thereby, except
that no Lender shall be liable to the Administrative Agent for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent.
Each Lender
represents and warrants to the Administrative Agent
that:
(a)
in making its decision to
enter into this Agreement and to make its Pro Rata Share of the
Credit Facility available to the Borrower, it is independently
taking whatever steps it considers necessary to evaluate the
financial condition and affairs of the Subject Entities and that it
has made an independent credit judgment without reliance upon any
information furnished by the Administrative Agent; and
(b)
so long as any portion of the
Credit Facility is being utilized by the Borrower, it will continue
to make its own independent evaluation of the financial condition
and affairs of the Companies.
Subject to the
appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may, with the prior
written consent of the Borrower (which consent shall not be
required for so long as a Default has occurred and is continuing),
resign at any time by giving 30 days written notice thereof to
the Borrower and the Lenders. Upon any such resignation, the
Majority Lenders, with the prior written consent of the Borrower
(which consent shall not be required (x) if the successor
Administrative Agent is an Affiliate or Subsidiary of the
Administrative Agent on the date hereof or (y) for so long as
a Default has occurred and is continuing), shall have the right to
appoint a successor Administrative Agent who shall be one of the
Lenders unless none of the Lenders wishes to accept such
appointment. If no successor Administrative Agent shall have been
so appointed and shall have accepted such appointment by the time
of such resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and with the prior written consent of the
Borrower (which consent shall not be required for so long as a
Default has occurred and is continuing), appoint a successor
Administrative Agent which shall be a bank organized under the laws
of Canada which has combined capital and reserves in excess
of $250,000,000 and has an office in Toronto. Upon the
acceptance of any appointment as Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, duties and obligations of the retiring
Administrative Agent (in its capacity as Administrative Agent but
not in its capacity as a Lender) and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder
(in its capacity as Administrative Agent but not in its capacity as
a Lender). After any retiring Administrative Agent’s
resignation hereunder as the Administrative Agent, provisions of
this Article 14 shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Administrative
Agent.
The
Administrative Agent shall have the right to delegate any of its
duties or obligations hereunder as Administrative Agent to any
Affiliate of the Administrative Agent so long as the Administrative
Agent shall not thereby be relieved of such duties or
obligations.
(a)
Subject to Sections 14.14(b) - (c)
any term, covenant or condition of any of the Credit Documents may
only be amended with the prior consent of the Borrower and the
Majority Lenders or compliance therewith may be waived (either
generally or in a particular instance and either retroactively or
prospectively) by the Majority Lenders and in any such event the
failure to observe, perform or discharge any such covenant,
condition or obligation, so amended or waived (whether such
amendment is executed or such consent or waiver is given before or
after such failure), shall not be construed as a breach of such
covenant, condition or obligation or as a Default or Event of
Default.
(b)
Notwithstanding
Section 14.14(a), without the
prior written consent of each Lender, no such amendment or waiver
shall directly:
(i)
increase the amount of the
Credit Facility or the amount of the Individual Commitment of any
Lender;
(ii)
extend the Maturity
Date;
(iii)
extend the time for the
payment of an Accommodation, forgive any portion of principal
thereof, reduce the stated rate of interest thereon or amend the
requirement of pro rata application of all amounts received by the
Administrative Agent in respect of the Credit
Facility;
(iv)
change the percentage of the
Lenders’ requirement to constitute the Majority Lenders or
otherwise amend the definition of Majority Lenders;
(vi)
permit any subordination of
any of the Secured Obligations;
(vii)
other than pursuant to
Section 14.26, release or discharge
any of the Security Documents or the guarantee set forth in
Article 15 hereof, in whole or in
part; or
(viii)
alter the terms of this
Section 14.14.
Any determination
to be made by the Administrative Agent on behalf of or with the
approval of the Lenders or the Majority Lenders under this
Agreement shall be made by the Administrative Agent in good faith
and, if so made, shall be binding on all parties, absent manifest
error.
(a)
The Lenders agree that, at any
time after all indebtedness of the Borrower to the Lenders pursuant
hereto has become immediately due and payable pursuant to
Section 13.1 or after the
cancellation or termination of the Credit Facility, they will at
any time or from time to time upon the request of any Lender
through the Administrative Agent purchase portions of the
availments made available by the other Lenders which remain
outstanding, and make any other adjustments which may be necessary
or appropriate, in order that the amounts of the availments made
available by the respective Lenders which remain outstanding, as
adjusted pursuant to this Section 14.16, will be in the same proportions as
their respective Pro Rata Shares thereof with respect to the Credit
Facility immediately prior to such acceleration, cancellation or
termination.
(b)
The Lenders agree that, at
any time after all indebtedness of the Borrower to the Lenders
pursuant hereto has become immediately due and payable pursuant to
Section 13.1 or after the
cancellation or termination of the Credit Facility, the amount of
any repayment made by the Borrower under this Agreement, and the
amount of any proceeds of the exercise of any rights or remedies of
the Lenders under the Credit Documents, which are to be applied
against amounts owing hereunder as principal, will be so applied in
a manner such that to the extent possible, the availments made
available by the respective Lenders which remain outstanding, after
giving effect to such application, will be in the same proportions
as their respective Pro Rata Shares thereof with respect to the
Credit Facility immediately prior to such acceleration,
cancellation or termination.
(c)
For greater certainty, the
Lenders acknowledge and agree that without limiting the generality
of the provisions of Section 14.16(a), and (b), such provisions will have application if
and whenever any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of
set-off, compensation, or otherwise) on account of any monies owing
or payable by the Borrower to it under the Credit Documents in
excess of its pro rata share of payments on account of monies owing
by the Borrower to all the Finance Parties thereunder.
(d)
The Borrower agrees to be
bound by and to do all things necessary or appropriate to give
effect to any and all purchases and other adjustments made by and
between the Lenders pursuant to this Section 14.16.
If a Lender shall
receive payment of a portion of the aggregate amount of principal
and interest due to it hereunder which is greater than the
proportion received by any other Lender in respect of the aggregate
amount of principal and interest due in respect of the Credit
Facility (having regard to the respective Individual Commitments of
the Lenders), the Lender receiving such proportionately greater
payment shall purchase a participation (which shall be deemed to
have been done simultaneously with receipt of such payment) in that
portion of the aggregate outstanding credit of the other Lender or
Lenders so that the respective receipts shall be pro rata to their
respective participation in the credits; provided, however, that if
all or part of such proportionately greater payment received by
such purchasing Lender shall be recovered from the Borrower, such
purchase shall be rescinded and the purchase price paid for such
participation shall be returned by such selling Lender or Lenders
to the extent of such recovery, but without interest.
Except as
otherwise expressly provided herein, promptly after receipt by the
Administrative Agent of any notice or other document which is
delivered to the Administrative Agent hereunder on behalf of the
Lenders, the Administrative Agent shall provide a copy of such
notice or other document to each of the Lenders.
Prior to any
distribution of Cash Proceeds of Realization to the Lenders, the
Administrative Agent shall request each Lender to provide to the
Administrative Agent a written calculation of such Lender’s
Exposure, each such calculation to be certified true and correct by
the Lender providing same. Each Lender shall so provide such
calculation within two Banking Days following the request of the
Administrative Agent. Any such calculation provided by a particular
Lender which is approved by the Administrative Agent shall, absent
manifest error, constitute prima
facie evidence of such Lender’s Exposure at such time.
If the Administrative Agent does not approve any such calculation
provided by a particular Lender, the Administrative Agent and such
Lender shall, expeditiously and in good faith, make a determination
of such Lender’s Exposure which the Administrative Agent
approves. With respect to each determination of the Exposure of the
Lenders, the Administrative Agent shall promptly notify the
Lenders. For the purposes of determining a particular
Lender’s Exposure as of a particular date:
(a)
the Exposure of a Lender
under this Agreement and the Security Documents shall be the
aggregate amount owing to such Lender thereunder on such date;
and
(b)
the Exposure of a Lender in
respect of Secured Risk Management Agreements shall be measured as
the aggregate net exposure of such Lender under all Secured Risk
Management Agreements to which such Lender is a party, being the
aggregate exposure of such Lender thereunder less the aggregate
exposure of the Companies thereunder; the exposure of a party to a
Secured Risk Management Agreement shall be, in the case of a
Secured Risk Management Agreement which has not been terminated as
of such date, the total amount which such party would be obligated
to pay to the other party under such Secured Risk Management
Agreement in the event of the early termination by such other party
as of such date of such Secured Risk Management Agreement as a
result of the occurrence of a default or event of default (however
specified or designated) with respect to such party thereunder or,
in the case of a Secured Risk Management Agreement which has been
terminated as of such date, the total amount which such party is
obligated to pay to the other party under such Secured Risk
Management Agreements.
The Security
shall become enforceable as provided in Article 13. Upon the Security becoming
enforceable as aforesaid, the Administrative Agent shall promptly
so notify each of the Lenders. Any Lender may thereafter provide
the Administrative Agent with a written request to enforce the
Security. Forthwith after the receipt of such a request, the
Administrative Agent shall seek the instructions of the Majority
Lenders as to whether the Security should be enforced and the
manner in which the Security should be enforced. In seeking such
instructions, the Administrative Agent shall submit a specific
proposal to the Lenders. The Administrative Agent shall promptly
notify the Lenders of all instructions and approvals of the
Majority Lenders.
The
Administrative Agent reserves the sole right to enforce, or
otherwise deal with, the Security and to deal with the Obligors in
connection therewith; provided, however, that the Administrative
Agent shall so enforce, or otherwise deal with, the Security as the
Majority Lenders shall instruct.
(a)
All Proceeds of Realization
not in the form of cash shall be forthwith delivered to the
Administrative Agent and disposed of, or realized upon, by the
Administrative Agent in such manner as the Majority Lenders may
approve so as to produce Cash Proceeds of Realization.
(b)
Subject to the claims, if
any, of secured creditors of the Obligors whose security ranks in
priority to the Security, all Cash Proceeds of Realization shall be
applied and distributed, and the claims of the Lenders shall be
deemed to have the relative priorities which would result in the
Cash Proceeds of Realization being applied and distributed, as
follows:
(i)
firstly, to the payment of
all reasonable costs and expenses incurred by or on behalf of the
Administrative Agent (including, without limitation, all legal fees
and disbursements) in the exercise of all or any of the powers
granted to it hereunder or under the Security Documents or under
the guarantee in Article 15
hereof and in payment of all of the remuneration of any Receiver
and all costs and expenses properly incurred by such Receiver
(including, without limitation, all legal fees and disbursements)
in the exercise of all or any powers granted to it under the
Security Documents;
(ii)
secondly, in payment of all
amounts of money borrowed or advanced by the Administrative Agent
or such Receiver pursuant to the Security Documents and any
interest thereon;
(iii)
thirdly, to the payment or
prepayment of the Secured Obligations (including holding as cash
collateral to be applied against Secured Obligations which have not
then matured) to the Finance Parties pro rata in accordance with
their relative Exposures; and
(iv)
the balance, if any, to the
relevant Obligor or otherwise in accordance with Applicable
Law.
As continuing
collateral security for the Secured Obligations, the Obligors shall
execute and deliver the Security Documents. The Security Documents
shall be entered into in favour of the Administrative Agent for the
rateable benefit of the Finance Parties. The Administrative Agent
declares that it shall hold the Security, the Secured Assets
charged by the Security Documents and the rights granted to it
under the Credit Documents for its own benefit and in its capacity
as agent for the rateable benefit of each Finance Party. For
certainty, the Obligors acknowledge and agree that the Security
Documents shall survive termination of the Credit Facility and
shall serve as continuing collateral security for the continuing
Secured Obligations (including, for certainty, the Risk Management
Obligations) of the Companies owing to the Finance
Parties.
The provisions of
this Article 14 and all other
provisions of this Agreement which are necessary to give effect to
each of the provisions of this Article 14 shall survive repayment in
full of all credit outstanding under the Credit Facility and the
termination of the commitments of the Lenders thereunder until such
time as all Secured Obligations have been permanently repaid in
full and all commitments of the Finance Parties thereunder have
been terminated.
Each Lender
hereby irrevocably authorizes the Administrative Agent to enter
into the Security Documents as agent for and on behalf of such
Lender and Parent hereby expressly acknowledges the authority of
the Administrative Agent to so enter into the Security
Documents.
To the extent a
sale or other disposition of the Secured Assets is permitted
pursuant to Section 11.2(d) or in
connection with any Permitted Corporate Reorganization, the Lenders
hereby authorize the Administrative Agent, at the cost and expense
of the Obligors, to execute such discharges and other instruments
which are necessary for the purposes of releasing and discharging
the security interest of the Finance Parties therein or for the
purposes of recording the provisions or effect thereof in any
office where the Security Documents may be registered or recorded
or for the purpose of more fully and effectively carrying out the
provisions of this Section 14.26.
Article 15
Each Obligor
hereby unconditionally, absolutely and irrevocably guarantees the
full and punctual payment to the Finance Parties, as and when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise of all of the Secured Obligations
of each other Company in the same currency as the currency of such
Secured Obligations, whether for principal, interest, fees,
expenses, indemnities or otherwise.
The guarantee
provided for in this Article 15
shall in all respects be a continuing, absolute, unconditional and
irrevocable guarantee of payment when due and not of collection,
and shall remain in full force and effect until all applicable
Secured Obligations have expired and been paid in full, all
obligations of the Obligors hereunder have been paid in full and
the Credit Facility has been terminated. Each Obligor guarantees
that the Secured Obligations of each other Company will be paid
strictly in accordance with the terms thereof, regardless of any
law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the
Finance Parties with respect thereto. Each Obligor renounces all
benefits of discussion and division. The liability of the Obligors
hereunder shall be absolute, unconditional and irrevocable
irrespective of, and without being released or limited
by:
(a)
any lack of validity,
legality or enforceability of any provision of this
Agreement;
(b)
the failure of any Finance
Party
(i)
to assert any claim or demand
or to enforce any right or remedy against either Obligor or any
other Person (including any other guarantor) under the provisions
of this Agreement, or otherwise, or
(ii)
to exercise any right or
remedy against any other guarantor of, or collateral securing, any
of the Secured Obligations;
(c)
any change in the time,
manner or place of payment of, or in any term of, all or any of the
Secured Obligations, or any other extension, compromise, indulgence
or renewal of any Secured Obligation;
(d)
any reduction, limitation,
variation, impairment, discontinuance or termination of the Secured
Obligations for any reason (other than by reason of any payment
which is not required to be rescinded), including any claim of
waiver, release, discharge, surrender, alteration or compromise,
and shall not be subject to (and the Parent hereby waives any right
to or claim of) any defence or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, the Secured Obligations or
otherwise (other than by reason of any payment which is not
required to be rescinded);
(e)
any amendment to, rescission,
waiver or other modification of, or any consent to any departure
from, any of the terms of the Secured Obligations or any guarantees
or security;
(f)
any addition, exchange,
release, discharge, renewal, realization or non-perfection of any
collateral security;
(g)
any amendment to, or waiver
or release or addition of, or consent to departure from, any other
guarantee held by the Finance Parties as security for any of the
Secured Obligations;
(h)
the loss of or in respect of
or the unenforceability of any other guarantee or other security
which the Finance Parties may now or hereafter hold in respect of
the Secured Obligations, whether occasioned by the fault of a
Finance Party or otherwise;
(i)
any change in the name of a
Company or in the constating documents, capital structure, capacity
or constitution of a Company, the bankruptcy or insolvency of a
Company, the sale of any or all of a Company’s business or
assets or being consolidated, merged or amalgamated with any other
Person; or
(j)
any other circumstance (other
than final payment in full) which might otherwise constitute a
defence available to, or a legal or equitable discharge of any
surety or any other guarantor.
The Finance
Parties shall not be bound to exhaust its recourse against a
Company or others or any security or other guarantees it may at any
time hold before being entitled to payment hereunder from an
Obligor.
A written
statement of the Administrative Agent as to the amount of any
Secured Obligations of a Company shall, except for manifest error,
be conclusive evidence and shall, in any event, be prima facie evidence against the Parent
as to the amount of such Secured Obligations.
The guarantee
provided for in this Article 15
shall be in addition to and not in substitution for any other
guarantee or other security which the Finance Parties may now or
hereafter hold in respect of the Secured Obligations, and the
Finance Parties shall be under no obligation to marshal in favour
of the Obligors any other guarantee or other security or any moneys
or other assets which they may be entitled to receive or may have a
claim upon.
The
guarantee provided for in this Article 15 and all other terms of this
Article 15 shall continue to be effective or shall be reinstated,
as the case may be, if at any time any payment by an Obligor or any
other Guarantor of any of the Secured Obligations is rescinded or
must otherwise be returned by the recipients thereof by reason of
the insolvency, bankruptcy or reorganization of an Obligor or for
any other reason, all as though such payment had not been
made.
Each Obligor
hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Secured Obligations and
this Agreement.
Until
satisfaction in full of all of the Secured Obligations, all
dividends, compositions, proceeds of security or payments received
by the Finance Parties in respect of the Secured Obligations shall
be regarded for all purposes as payments in gross. No Obligor shall
exercise any rights which it may acquire by way of subrogation
under this Agreement, by any payment made hereunder or otherwise,
until the prior satisfaction in full of all of the Secured
Obligations. Any amount paid to an Obligor on account of any such
subrogation rights prior to the satisfaction in full of all Secured
Obligations shall be held in trust for the benefit of the Finance
Parties and shall immediately be paid to the Finance Parties and
credited and applied against the Secured Obligations, whether
matured or unmatured, in accordance with the terms hereof;
provided, however, that if
(a)
an Obligor has made payment
to the Finance Parties of all of the Secured Obligations,
and
(b)
the Credit Facility and all
Secured Risk Management Agreements have been
terminated,
such Obligor
shall be subrogated to the rights of the Finance Parties against
the applicable Company with respect to all Secured Obligations of
such Company and, at the relevant Obligor’s request, the
Finance Parties will execute and deliver to such Obligor
appropriate documents (without recourse and without representation
or warranty, except that it has not released, assigned or
encumbered any subject Secured Obligations) necessary to evidence
the transfer by subrogation to such Obligor of all such Secured
Obligations.
All debts and
liabilities, present and future, of each Obligor to the other are
hereby assigned to the Finance Parties and postponed to the Secured
Obligations of such other Obligor, and all moneys received by such
Obligor in respect thereof upon the occurrence and during the
continuance of an Event of Default, shall be received in trust for
the Finance Parties and forthwith upon receipt shall be paid over
to the Administrative Agent, the whole without in any way lessening
or limiting the liability of such Obligor hereunder; and this
assignment and postponement shall remain in full force and effect
until repayment in full to the Finance Parties of all the Secured
Obligations.
All advances,
renewals and credits made or granted hereunder or in connection
herewith by the Finance Parties purportedly to or for any Company
after the bankruptcy or insolvency of such Company but before the
Finance Parties have received notice thereof, shall be deemed to
form part of the Secured Obligations, and all advances, renewals
and credits obtained from the Finance Parties hereunder purportedly
by or on behalf of any Company shall be deemed to form part of the
Secured Obligations, notwithstanding any lack or limitation of
power, incapacity or disability of such Company or of the directors
or agents thereof and notwithstanding that such Company may not be
a legal or suable entity and notwithstanding any irregularity,
defect or informality in the obtaining of such advances, renewals
or credits, whether or not the Finance Parties had knowledge
thereof.
Article 16
All notices and
other communications provided for herein shall be in writing and
shall be personally delivered to an officer or other responsible
employee of the addressee or sent by telefacsimile, charges
prepaid, at or to the applicable addresses or telefacsimile
numbers, as the case may be, set out opposite the parties name on
the signature page hereof or at or to such other address or
addresses, telefacsimile number or numbers as any Party hereto may
from time to time designate to the other Parties in such manner.
Any communication which is personally delivered as aforesaid shall
be deemed to have been validly and effectively given on the date of
such delivery if such date is a Banking Day and such delivery was
received before 4:00 p.m. (Toronto time); otherwise, it shall
be deemed to have been validly and effectively given on the Banking
Day next following such date of delivery. Any communication which
is transmitted by telefacsimile as aforesaid shall be deemed to
have been validly and effectively given on the date of transmission
if such date is a Banking Day and such transmission was received
before 4:00 p.m. (Toronto time); otherwise, it shall be deemed
to have been validly and effectively given on the Banking Day next
following such date of transmission.
If the whole or
any portion of the Credit Documents or the application thereof to
any circumstance is found to be invalid or unenforceable to an
extent that does not affect the operation of the Credit Document in
question in a fundamental way, the remainder of the provision in
question, or its application to any circumstance other than that to
which it has been held invalid or unenforceable, and the remainder
of the Credit Document in question, will not be affected thereby
and will be valid and enforceable to the fullest extent permitted
by Applicable Law.
This Agreement
and the Credit Documents may be executed and delivered in one or
more original, emailed (in .pdf format), faxed or by other
electronic means, signed counterparts, and by different parties in
separate counterparts, each of which shall be deemed to be an
original and all of which taken together shall be deemed to
constitute one and the same instrument.
This Agreement
shall enure to the benefit of and shall be binding upon the parties
hereto and their respective successors and permitted
assigns.
(a)
Except as expressly permitted
under this Article 16.5, neither the Credit Documents nor the
benefit thereof may be assigned by an Obligor.
(b)
A Lender may at any time sell
to one or more other financial institutions or other Persons (each
such financial institution or other Person a “Participant”) participating
interests in any credit outstanding hereunder, any commitment of
the Lender hereunder or any other interest of the Lender hereunder.
In the event of any such sale by a Lender of a participating
interest to a Participant, the Lender’s obligations under
this Agreement to the Borrower shall remain unchanged, the Lender
shall remain solely responsible for the performance thereof and the
Obligors shall continue to be obligated to the Lender (and not the
Participant) in connection with the Lender’s rights under
this Agreement. The Obligors also agree that each Participant shall
be entitled to the benefits of Article 8 with respect to its
participation hereunder and for the purposes of Article 8 such Participant shall be
deemed to be a Lender to the extent of such participation;
provided, that, subject to Section 8.6, no Participant shall be entitled to
receive any greater amount pursuant to such Article than the
relevant Lender would have been entitled to receive in respect of
the amount of the participation transferred by such Lender to such
Participant had no such transfer occurred.
(c)
With the prior written consent of,
(w) the Obligors (which consent shall not be unreasonably withheld
or delayed and shall not be required (i) if such sale is to one or
more other Lenders or to an Affiliate of any Lender and such
assignment would not impose on the Obligors at the time of the
assignment any liability under Section 8.6 or (ii) in circumstances where a Default
has occurred and is continuing and further provided that such
consent shall be deemed to have been granted if the Obligors have
not responded to the Administrative Agent’s request for such
consent within five Banking Days), (x) the Issuing Lender
(notwithstanding Section 1.9, in its
sole discretion) and (y) the Administrative Agent, a Lender may at
any time sell all or any part of its rights and obligations under
the Credit Documents to one or more Persons (“Purchasing Lenders”). Upon such
sale, the Lender shall, to the extent of such sale, be released
from its obligations under the Credit Documents and each of the
Purchasing Lenders shall become a Party to the Credit Documents to
the extent of the interest so purchased. Any such assignment shall
be for Individual Commitments aggregating at least $5,000,000 and,
following such assignment, the Lender shall either retain
Individual Commitments aggregating at $5,000,000 or have assigned
the entirety of its Individual Commitment. Any such assignment by a
Lender shall not be effective unless and until such Lender has paid
to the Administrative Agent an assignment fee in the amount of
$3,500 for each Purchasing Lender, unless and until the Purchasing
Lender has executed an instrument substantially in the form of
Schedule C hereto whereby the
Purchasing Lender has agreed to be bound by the terms of the Credit
Documents as a Lender and has agreed to a specific Individual
Commitment with respect to the Credit Facility and a specific
address and telefacsimile number for the purpose of notices as
provided in Section 16.1, unless and
until the requisite consents to such assignment have been obtained
and unless and until a copy of a fully executed copy of such
instrument has been delivered to each of the Administrative Agent,
the Issuing Lender and the Obligors. Upon any such assignment
becoming effective, Schedule A
hereto shall be deemed to be amended to include the Purchasing
Lender as a Lender with the specific Individual Commitment with
respect to the Credit Facility, address and telefacsimile number as
aforesaid and the Individual Commitment of the Lender making such
assignment shall be deemed to be reduced by the amount of the
Individual Commitment of the Purchasing Lender with respect to the
Credit Facility.
(d)
The Obligors authorize the
Administrative Agent and the Lenders to disclose to any Participant
or Purchasing Lender (each, a “Transferee”) and any prospective
Transferee and authorizes each of the Lenders to disclose to any
other Lender any and all information in their possession concerning
the Companies which has been delivered to them by or on behalf of
the Obligors pursuant to this Agreement or which has been delivered
to them by or on behalf of the Obligors in connection with their
credit evaluation of the Companies prior to becoming a Party to
this Agreement, so long as any such Transferee agrees not to
disclose any confidential, non-public information to any Person
other than its employees, accountants or legal counsel on a
need-to-know basis, unless required by law.
This Agreement
and the other Finance Documents constitute the entire agreement
between the Parties hereto and supersede any prior agreements,
undertakings, declarations, representations and understandings,
both written and verbal, in respect of the subject matter of this
Agreement.
The Obligors
shall from time to time and at all times hereafter, upon every
reasonable request of the Administrative Agent, make, do, execute,
and deliver or cause to be made, done, executed and delivered all
such further acts, deeds, assurances and things as may be necessary
in the opinion of the Administrative Agent, acting reasonably, for
more effectually implementing and carrying out the true intent and
meaning of the Credit Documents or any agreement delivered pursuant
hereto or thereto and such additional security, legal opinions,
consents, approvals, acknowledgements, undertakings,
non-disturbance agreements, directions and negotiable documents of
title in connection with the Secured Assets, in form and substance
satisfactory to the Administrative Agent, as the Administrative
Agent may from time to time request, to ensure (i) that all Secured
Assets are subject to a Lien in favour of the Administrative Agent
and (ii) the Secured Assets are subject to a first ranking priority
of such Liens.
(a)
If, for the purpose of
obtaining or enforcing judgment against either Obligor in any court
in any jurisdiction, it becomes necessary to convert into a
particular currency (such currency being hereinafter in this
Section 16.8 referred to as the
“Judgment
Currency”) an amount due in another currency (such
other currency being hereinafter in this Section 16.8 referred to as the “Indebtedness Currency”) under this
Agreement, the conversion shall be made at the rate of exchange
prevailing on the Banking Day immediately preceding:
(i)
the date of actual payment of
the amount due, in the case of any proceeding in the courts of the
Province of Ontario or in the courts of any other jurisdiction that
will give effect to such conversion being made on such date;
or
(ii)
the date on which the judgment is
given, in the case of any proceeding in the courts of any other
jurisdiction (the date as of which such conversion is made pursuant
to this Section 16.8(a)(ii) being
hereinafter in this Section 16.8
referred to as the “Judgment
Conversion Date”).
(b)
If, in the case of any proceeding
in the court of any jurisdiction referred to in
Section 16.8(a)(ii), there is a
change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual payment of the amount due,
the Obligors shall pay to the appropriate judgment creditor or
creditors such additional amount (if any, but in any event not a
lesser amount) as may be necessary to ensure that the amount paid
in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the
Indebtedness Currency which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial
order at the rate of exchange prevailing on the Judgment Conversion
Date.
(c)
Any amount due from the
Obligors under the provisions of Section 16.8(b) shall be due to the appropriate
judgment creditor or creditors as a separate debt and shall not be
affected by judgment being obtained for any other amounts due under
or in respect of this Agreement.
(d)
The term “rate of
exchange” in this Section 16.8 means the noon spot rate of exchange for
Canadian interbank transactions applied in converting the
Indebtedness Currency into the Judgment Currency published by the
Bank of Canada for the day in question.
Each Party agrees
that it has been represented by competent counsel in the
negotiation of the Credit Documents, and that any rule or
construction of law enabling the Obligors to assert that any
ambiguities or inconsistencies in the drafting or preparation of
the terms of the Credit Documents should diminish any rights or
remedies of the Finance Parties are hereby waived by the
Obligors.
In the event of
any conflict or inconsistency between the provisions of this
Agreement and the provisions of any other Credit Document, the
provisions of this Agreement shall prevail and be
paramount.
The Obligors
confirm and agree that the Liens and other obligations expressed to
be created under or pursuant to each Security Document to which it
is a party shall be binding upon such Obligor and its collateral
(as described in each such Security Document) shall be unaffected
by and shall continue in full force and effect notwithstanding the
amendment and restatement of the Existing Credit Agreement as
constituted hereby and the execution and delivery and effectiveness
of this Agreement shall not in any manner whatsoever reduce,
release, discharge, impair or otherwise prejudice or change the
rights of the Finance Parties arising under, by reason of or
otherwise in respect of such Liens and other obligations
constituted by each such Security Document. For the avoidance of
doubt, each Obligor hereby confirms that each Security Document to
which it is a party secures its Secured Obligations and that each
such Security Document continues in full force and
effect.
[The remainder of this page is intentionally left
blank.]
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
IN WITNESS WHEREOF the parties hereto
have executed and delivered this Agreement on the date first
written above.
|
Xxxxxxx Mines
Inc.
000 Xxx Xxxxxx,
Xxxxx 000
Xxxxxxx, XX X0X
0X0
|
XXXXXXX MINES INC., as Borrower
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|
|
|
By:
|
“Signed”
|
|
Attention: Chief
Financial Officer
Telefax: (000)
000-0000
|
By:
|
Name: Xxxxx
Xxxxx
Title:
CFO
“Signed”
|
|
|
|
Name: Xxxxxx
Xxxxxx
Title: Corporate
Secretary
|
|
|
|
|
|
Xxxxxxx Mines
Corp.
000 Xxx Xxxxxx,
Xxxxx 000
Xxxxxxx, XX X0X
0X0
|
XXXXXXX MINES CORP., as Guarantor
|
|
|
|
By:
|
“Signed”
|
|
Attention: Chief
Financial Officer
Telefax: (000)
000-0000
|
By:
|
Name: Xxxxx
Xxxxx
Title: President
and CFO
“Signed”
|
|
|
|
Name: Xxxxxx
Xxxxxx
Title: General
Counsel & Corporate Secretary
|
Fourth
Amended and Restated Credit Agreement
|
|
|
|
|
The Bank of Nova ScotiaCorporate Banking –
Loan Syndications40 King St. West – 00xx XxxxxXxxxxxx, Xxxxxxx X0X 0X0
|
THE BANK OF NOVA SCOTIA, as Administrative Agent
|
|
|
Attention: Managing
Director
|
By:
|
“Signed”
|
|
Telefax: (000)
000-0000
|
|
Name: Xxx
Xxxxxx
Title: Managing
Director
|
|
|
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|
|
|
By:
|
“Signed”
|
|
|
|
Name: Xxxxxxx
Xxxxxxxxxxxx
|
|
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Title: Associate
Director
|
|
|
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|
|
|
|
|
|
The Bank of Nova
ScotiaCorporate Banking – Global Mining
Scotia Plaza,
62nd
Floor
00 Xxxx Xxxxxx
Xxxx
|
XXX XXXX XX XXXX XXXXXX, as Lender
|
|
|
Xxxxxxx, Xxxxxxx
X0X 0X0
|
By:
|
“Signed”
|
|
|
|
Name: Xxx
Xxxxxx
|
|
Attention:
Managing Director
|
|
Title: Managing
Director
|
|
Telefax: (000)
000-0000
|
By:
|
“Signed”
|
|
|
|
Name: Xxxxxxx
Xxxxxxxxxxxx
|
|
|
|
Title: Associate
Director
|
|
|
|
|
Fourth
Amended and Restated Credit Agreement
Schedule A
|
Lenders
|
Individual Commitment
|
|
The Bank of Nova
Scotia
|
$24,000,000
|
DM_TOR/000000.00000/0000000.3 Fourth
Amended and Restated Credit Agreement
Schedule B
|
TO:
|
THE BANK OF NOVA
SCOTIA
|
I,
____________________, the [senior financial officer] of Xxxxxxx
Mines Corp, hereby certify that:
1.
I am the duly appointed [<@>] of Xxxxxxx Mines Corp., the parent named in
the fourth amended and restated credit agreement made as of January
30, 2015 (as amended to the date hereof, the
“Credit
Agreement”) between,
Xxxxxxx Mines Inc., as borrower, the Lenders named therein and The
Bank of Nova Scotia, as administrative agent of the Lenders and as
such I am providing this Certificate for and on behalf of Xxxxxxx
Mines Corp. and Xxxxxxx Mines Inc. pursuant to the Credit
Agreement.
2.
I am familiar
with and have examined the provisions of the Credit Agreement
including, without limitation, those of Article, 10, Article 11 and
Article 13 therein.
3.
To the best
of my knowledge, information and belief and after due inquiry, no
Default has occurred and is continuing.
As at or for the
relevant period ending _______________________, the amount and
financial ratio as contained in Section 11.1(o) of the Credit Agreement is as follows
and detailed calculations thereof are attached hereto:
|
|
Actual Amount or
Ratio
|
Required Amount
or Ratio
|
|
(a) Tangible
Net Worth
|
_______
|
U.S.$150,000,000
|
4.
1Attached
hereto is a revised updated Schedule E of the Credit Agreement.
5.
Unless the
context otherwise requires, capitalized terms in the Credit
Agreement which appear herein without definitions shall have the
meanings ascribed thereto in the Credit Agreement.
DATED this
_______ day of _____________, 20____.
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|
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(Signature)
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|
|
|
|
|
(Name - please
print)
|
|
|
|
|
|
(Title of Senior
Financial Officer)
|
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
- 2
-
CALCULATION WORKSHEET
Tangible Net Worth
Actual:
|
|
Equity as of
financial statements dated [ ]
|
U.S.$
|
|
|
Less:
|
|
|
|
Goodwill and
other intangible assets
|
$<@>
|
|
|
Tangible Net
Worth
|
$<@>
|
Minimum
Required:
|
|
Minimum
Level
|
$150,000,000
|
Compliance [Yes]/[No]
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
Schedule C
Dated __________,
20___
Reference is made
to the fourth amended and restated credit agreement made as of
January 30, 2015 (as amended to the date hereof, the
“Credit
Agreement”), between Xxxxxxx Mines Inc., as borrower,
the Lenders named therein and The Bank of Nova Scotia, as
administrative agent of the Lenders (in that capacity, the
“Administrative
Agent”). Terms defined in the Credit Agreement are
used herein as therein defined.
_________________
(the “Assignor”)
and _________________ (the “Assignee”) agree as
follows:
(a)
The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, a ______% interest in and to all of the
Assignor’s rights and obligations under the Credit Agreement
as of the Effective Date (as defined below) (including, without
limitation, such percentage interest in the Assignor’s
Individual Commitment as in effect on the Effective Date, the
credit extended by the Assignor under the Credit Facility and
outstanding on the Effective Date and the corresponding rights and
obligations of the Assignor under all of the Credit
Documents).
(b)
The Assignor
(i) represents and warrants that as of the date hereof its
Individual Commitment is $___________ (without giving effect to
assignments thereof which have not yet become effective, including,
but not limited to, the assignment contemplated hereby), and the
aggregate outstanding amount of credit extended by it under the
Credit Facility is $___________ (without giving effect to
assignments thereof which have not yet become effective, including,
but not limited to, the assignment contemplated hereby);
(ii) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim;
(iii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Documents
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Documents or any other
instrument or document furnished pursuant thereto; (iv) makes
no representation or warranty and assumes no responsibility with
respect to the financial condition of any of the Companies or the
performance or observance by the Obligors of any of their
obligations under the Credit Documents or any other instrument or
document furnished pursuant thereto; and (v) gives notice to
the Administrative Agent, the Issuing Lender and the Obligors of
the assignment to the Assignee hereunder.
(c)
The effective date of this
Assignment (the “Effective
Date”) shall be the later of ___________ and the date
on which a copy of a fully executed copy of this Assignment has
been delivered to the Obligors, the Administrative Agent and the
Issuing Lender in accordance with Section 16.5(c) of the Credit Agreement.
(d)
The Assignee hereby agrees to
the specific Individual Commitment of $___________ with respect to
the Credit Facility and to the address and telefacsimile number set
out after its name on the signature page hereof for the purpose of
notices as provided in Section 16.1 of the Credit Agreement.
(e)
As of the Effective Date
(i) the Assignee shall, in addition to any rights and
obligations under the Credit Documents held by it immediately prior
to the Effective Date, have the rights and obligations under the
Credit Documents that have been assigned to it pursuant to this
Assignment and (ii) the Assignor shall, to the extent provided
in this Assignment, relinquish its rights and be released from its
obligations under the Credit Documents.
(f)
The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit
Documents for periods prior to the Effective Date directly between
themselves.
This Assignment
shall be governed by, and construed in accordance with, the laws of
the Province of Ontario and the laws of Canada applicable
therein.
|
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[ASSIGNOR]
|
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By:
|
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Title:
|
|
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[ASSIGNEE]
|
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By:
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|
|
|
|
Title:
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|
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Address
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
|
|
Telefax:
|
|
Acknowledged and
agreed to as of this ___________ day of ___________ ,
20______.
|
THE BANK OF NOVA SCOTIA, as Administrative Agent
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
Acknowledged and
agreed to as of this _________ day of _____________,
20_____.
|
THE BANK OF NOVA SCOTIA, as Issuing Lender
|
|
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By:
|
|
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|
Name:
|
|
|
Title:
|
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XXXXXXX MINES INC., as Borrower2
|
|
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By:
|
|
|
|
Name:
|
|
|
Title:
|
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XXXXXXX MINES CORP., as Guarantor2
|
|
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By:
|
|
|
|
Name:
|
|
|
Title:
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DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
Schedule D
|
TO:
|
The Bank of Nova
Scotia, as Agent
Global Wholesale
Services
0xx Xxxxx, 000 Xxxx
Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Att: Senior
Manager
Facsimile: (000)
000-0000
With a copy to
Corporate Banking – Global Mining
00 Xxxx Xxxxxx
Xxxx, 00xx
Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Att: Managing
Director
Facsimile: (000)
000-0000
|
|
RE:
|
Fourth amended
and restated credit agreement made as of January 30, 2015 as
amended, modified, supplemented or replaced from time to time (the
“Credit
Agreement”) between Xxxxxxx Mines Inc., as borrower,
the Lenders named therein and The Bank of Nova Scotia, as
administrative agent of the Lenders
|
Pursuant to the
terms of the Credit Agreement, the undersigned hereby irrevocably
notifies you that it wishes to have a Letter issued under the
Credit Facility on [date of
drawdown] as follows:
Amount and
Currency: __________________________________
Date of Issuance:
______________________________________
Named
Beneficiary: ____________________________________
Maturity Date:
________________________________________
Other Terms:
_________________________________________
If issued on
behalf of a Subsidiary of the Parent as well as on behalf of the
undersigned, the name of such
Subsidiary:
___________________________________________
To the best of my
knowledge, information and belief and after due inquiry, no Default
has occurred and is continuing.
All capitalized
terms defined in the Credit Agreement and used herein shall have
the meanings ascribed thereto in the Credit Agreement.
DATED the ______
day of _______________, 20___.
|
|
XXXXXXX MINES INC.
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
Title:
|
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
Schedule E
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
Schedule F
REIMBURSEMENT
INSTRUMENT
|
TO:
|
The Bank of Nova
Scotia (the “Issuing
Lender”)
|
|
RE:
|
Fourth amended
and restated credit agreement made as of January 30, 2015 as
amended, modified, supplemented or replaced from time to time (the
“Credit
Agreement”) between Xxxxxxx Mines Inc., as borrower,
the Lenders named therein and The Bank of Nova Scotia, as
administrative agent of the Lenders
|
For good and
valuable consideration, the undersigned hereby agrees to
immediately reimburse the Issuing Lender the amount of each and any
demand or other request for payment presented to and paid by the
Issuing Lender in accordance with each Letter (as defined in the
Credit Agreement) issued by the Issuing Lender on behalf of the
undersigned (even if, under laws applicable to the rights of the
beneficiary of such Letter, a demand or other request for payment
is validly presented after expiry of such Letter).
DATED as of the
_______ day of ________________, ______.
|
|
[NAME OF SUBSIDIARY]
|
|
|
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By:
|
|
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|
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By:
|
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DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
Schedule G
|
Pledged Subsidiary
|
Authorized Capital
|
Issued Capital
|
Owner of Record
|
|
Xxxxxxx Mines
Inc.
|
Unlimited number
of common shares
|
11,270,000 common
shares
|
Parent
|
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
Schedule H
1.
Security Agreement dated as
of June 30, 2008 entered into by the Parent and the Administrative
Agent (re: Shares of DMI and inter-company debt); and
2.
General Security Agreement
dated as of June 30, 2008 entered into by DMI and the
Administrative Agent.
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
Schedule I
This
schedule continues on the next page.
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
DM_TOR/286042.00006/7662962.3 Fourth
Amended and Restated Credit Agreement
