KINROSS GOLD CORPORATION, KINROSS GOLD U.S.A., INC.,
FAIRBANKS GOLD MINING, INC. AND ROUND MOUNTAIN GOLD CORPORATION
AS BORROWERS
AND
THE BANK OF NOVA SCOTIA
AS CO-LEAD ARRANGER AND ADMINISTRATIVE AGENT
AND
SOCIETE GENERALE
AS CO-LEAD ARRANGER AND SYNDICATION AGENT
AND
ROYAL BANK OF CANADA AND AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED, AS DOCUMENTATION AGENTS
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
-----------------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
-----------------------------------------------
DATED AS OF APRIL 8, 2005
[LOGO]
Fasken Xxxxxxxxx XxXxxxxx LLP
Toronto, Ontario
TABLE OF CONTENTS
PAGE
ARTICLE 1 INTERPRETATION.............................................................................1
1.1 DEFINED TERMS..............................................................................1
1.2 OTHER USAGES..............................................................................34
1.3 PLURAL AND SINGULAR.......................................................................34
1.4 HEADINGS..................................................................................34
1.5 CURRENCY..................................................................................34
1.6 APPLICABLE LAW............................................................................34
1.7 TIME OF THE ESSENCE.......................................................................34
1.8 NON-BANKING DAYS..........................................................................35
1.9 CONSENTS AND APPROVALS....................................................................35
1.10 AMOUNT OF CREDIT..........................................................................35
1.11 SCHEDULES.................................................................................35
1.12 EXTENSION OF CREDIT.......................................................................35
1.13 JOINT AND SEVERAL OBLIGATIONS.............................................................36
ARTICLE 2 CREDIT FACILITY...........................................................................36
2.1 ESTABLISHMENT OF CREDIT FACILITY..........................................................36
2.2 ACCORDION FEATURE.........................................................................36
2.3 LENDERS' COMMITMENTS......................................................................38
2.4 REDUCTION OF CREDIT FACILITY..............................................................38
2.5 TERMINATION OF CREDIT FACILITY............................................................38
ARTICLE 3 GENERAL PROVISIONS RELATING TO CREDITS....................................................39
3.1 TYPES OF CREDIT AVAILMENTS................................................................39
3.2 FUNDING OF LOANS..........................................................................39
3.3 FAILURE OF LENDER TO FUND LOAN............................................................40
3.4 FUNDING OF BANKERS' ACCEPTANCES...........................................................41
3.5 BA RATE LOANS.............................................................................43
3.6 GENERAL PROVISIONS RELATING TO GOLD LOANS.................................................44
3.7 TIMING OF CREDIT AVAILMENTS...............................................................45
3.8 INABILITY TO FUND U.S. DOLLAR ADVANCES IN CANADA..........................................45
3.9 INABILITY TO FUND LIBOR LOAN IN THE UNITED STATES.........................................46
3.10 INABILITY TO FUND GOLD LOANS..............................................................47
3.11 TIME AND PLACE OF PAYMENTS................................................................47
3.12 REMITTANCE OF PAYMENTS....................................................................48
3.13 EVIDENCE OF INDEBTEDNESS..................................................................48
3.14 GENERAL PROVISIONS RELATING TO ALL LETTERS................................................48
3.15 NOTICE PERIODS............................................................................50
3.16 ADMINISTRATIVE AGENT'S DISCRETION TO ALLOCATE.............................................51
ARTICLE 4 DRAWDOWNS.................................................................................51
4.1 DRAWDOWN NOTICE...........................................................................51
ARTICLE 5 ROLLOVERS.................................................................................52
5.1 BANKERS' ACCEPTANCES......................................................................52
TABLE OF CONTENTS
(continued)
PAGE
5.2 LIBOR LOANS...............................................................................52
5.3 GOLD LOANS................................................................................53
5.4 ROLLOVER NOTICE...........................................................................53
ARTICLE 6 CONVERSIONS...............................................................................53
6.1 CONVERTING LOAN TO OTHER TYPE OF LOAN.....................................................53
6.2 CONVERTING LOAN TO BANKERS' ACCEPTANCES...................................................54
6.3 CONVERTING BANKERS' ACCEPTANCES TO LOAN...................................................54
6.4 CONVERSION NOTICE.........................................................................54
6.5 ABSENCE OF NOTICE.........................................................................55
6.6 CONVERSION BY LENDERS.....................................................................55
ARTICLE 7 INTEREST AND FEES.........................................................................56
7.1 INTEREST RATES AND GOLD FUNDING FEES......................................................56
7.2 CALCULATION AND PAYMENT OF INTEREST AND GOLD FUNDING FEES................................56
7.3 GENERAL INTEREST RULES....................................................................57
7.4 SELECTION OF INTEREST PERIODS AND GOLD FUNDING PERIODS....................................58
7.5 ACCEPTANCE FEES...........................................................................58
7.6 GOLD FUNDING FEES.........................................................................59
7.7 STANDBY FEE...............................................................................60
7.8 LETTER FEES...............................................................................60
7.9 APPLICABLE RATE ADJUSTMENT................................................................61
ARTICLE 8 RESERVE, CAPITAL, INDEMNITY AND TAX PROVISIONS............................................61
8.1 CONDITIONS OF CREDIT......................................................................61
8.2 CHANGE OF CIRCUMSTANCES...................................................................61
8.3 FAILURE TO FUND AS A RESULT OF CHANGE OF CIRCUMSTANCES....................................62
8.4 INDEMNITY RELATING TO CREDITS.............................................................63
8.5 INDEMNITY FOR TRANSACTIONAL AND ENVIRONMENTAL LIABILITY...................................64
8.6 PAYMENTS FREE AND CLEAR OF TAXES..........................................................65
ARTICLE 9 REPAYMENTS AND PREPAYMENTS................................................................66
9.1 REPAYMENTS................................................................................66
9.2 EXTENSION OF MATURITY DATE................................................................67
9.3 VOLUNTARY PREPAYMENTS UNDER CREDIT FACILITY...............................................68
9.4 PREPAYMENT NOTICE.........................................................................68
9.5 REIMBURSEMENT OR CONVERSION ON PRESENTATION OF LETTERS....................................69
9.6 LETTERS SUBJECT TO AN ORDER...............................................................69
9.7 CURRENCY OF REPAYMENT.....................................................................69
9.8 REPAYMENTS OF CREDIT EXCESS...............................................................70
ARTICLE 10 REPRESENTATIONS AND WARRANTIES............................................................70
10.1 REPRESENTATIONS AND WARRANTIES............................................................70
10.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES................................................76
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 11 COVENANTS.................................................................................77
11.1 AFFIRMATIVE COVENANTS.....................................................................77
11.2 RESTRICTIVE COVENANTS.....................................................................87
11.3 PERFORMANCE OF COVENANTS BY ADMINISTRATIVE AGENT..........................................91
ARTICLE 12 CONDITIONS PRECEDENT TO OBTAINING CREDIT..................................................91
12.1 CONDITIONS PRECEDENT TO ALL CREDIT........................................................91
12.2 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT........................................92
12.3 WAIVER....................................................................................93
ARTICLE 13 DEFAULT AND REMEDIES......................................................................94
13.1 EVENTS OF DEFAULT.........................................................................94
13.2 REFUND OF OVERPAYMENTS....................................................................96
13.3 REMEDIES CUMULATIVE.......................................................................97
13.4 SET-OFF...................................................................................97
ARTICLE 14 THE ADMINISTRATIVE AGENT..................................................................98
14.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.....................................98
14.2 INTEREST HOLDERS..........................................................................98
14.3 CONSULTATION WITH COUNSEL.................................................................98
14.4 DOCUMENTS.................................................................................98
14.5 ADMINISTRATIVE AGENT AS LENDER............................................................99
14.6 RESPONSIBILITY OF ADMINISTRATIVE AGENT....................................................99
14.7 ACTION BY ADMINISTRATIVE AGENT............................................................99
14.8 NOTICE OF EVENTS OF DEFAULT...............................................................99
14.9 RESPONSIBILITY DISCLAIMED................................................................100
14.10 INDEMNIFICATION..........................................................................100
14.11 CREDIT DECISION..........................................................................101
14.12 SUCCESSOR ADMINISTRATIVE AGENT...........................................................101
14.13 DELEGATION BY ADMINISTRATIVE AGENT.......................................................101
14.14 WAIVERS AND AMENDMENTS...................................................................102
14.15 DETERMINATION BY ADMINISTRATIVE AGENT CONCLUSIVE AND BINDING.............................103
14.16 ADJUSTMENTS AMONG LENDERS AFTER ACCELERATION.............................................103
14.17 REDISTRIBUTION OF PAYMENT................................................................104
14.18 DISTRIBUTION OF NOTICES..................................................................104
14.19 DETERMINATION OF EXPOSURES...............................................................104
14.20 DECISION TO ENFORCE SECURITY.............................................................105
14.21 ENFORCEMENT..............................................................................105
14.22 APPLICATION OF CASH PROCEEDS OF REALIZATION..............................................105
14.23 SECURITY DOCUMENTS.......................................................................106
14.24 [INTENTIONALLY DELETED]..................................................................106
14.25 SURVIVAL.................................................................................106
14.26 DISCHARGE OF SECURITY....................................................................107
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 15 MISCELLANEOUS............................................................................107
15.1 NOTICES..................................................................................107
15.2 SEVERABILITY.............................................................................107
15.3 COUNTERPARTS.............................................................................108
15.4 SUCCESSORS AND ASSIGNS...................................................................108
15.5 ASSIGNMENT...............................................................................108
15.6 ENTIRE AGREEMENT.........................................................................109
15.7 FURTHER ASSURANCES.......................................................................109
15.8 JUDGMENT CURRENCY........................................................................110
15.9 NOTICE OF REMEDIES.......................................................................111
15.10 WAIVERS OF JURY TRIAL....................................................................111
SCHEDULE A LENDERS AND INDIVIDUAL COMMITMENTS
SCHEDULE B COMPLIANCE CERTIFICATE
SCHEDULE C FORM OF ASSIGNMENT
SCHEDULE D PRINCIPAL PLACE OF BUSINESS
SCHEDULE E FORM OF DRAWDOWN NOTICE
SCHEDULE F FORM OF ROLLOVER NOTICE
SCHEDULE G FORM OF CONVERSION NOTICE
SCHEDULE H CORPORATE STRUCTURE
SCHEDULE I REIMBURSEMENT INSTRUMENT
SCHEDULE J APPLICABLE RATES
SCHEDULE K SECURITY DOCUMENTS
SCHEDULE L [INTENTIONALLY DELETED]
SCHEDULE M BORROWER INSTRUMENT OF ADHESION
SCHEDULE N LOCATION OF TANGIBLE PERSONAL PROPERTY
SCHEDULE O PERMITTED ASSET DISPOSITIONS
SCHEDULE P MATERIAL CONTRACTS
SCHEDULE Q ACCORDION AGREEMENT
SCHEDULE R CAPITAL OF PLEDGED SUBSIDIARIES
AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 8, 2005 among
Kinross Gold Corporation, a corporation amalgamated under the laws of the
Province of Ontario ("KINROSS CANADA" or "KGC"), Kinross Gold U.S.A., Inc., a
corporation incorporated under the laws of the State of Nevada ("KINROSS U.S.A."
or "KG USA"), Fairbanks Gold Mining, Inc., a corporation incorporated under the
laws of the State of Delaware ("FAIRBANKS U.S.") and Round Mountain Gold
Corporation, a corporation incorporated under the laws of the State of Delaware
("ROUND MOUNTAIN or "RMGC"") (collectively, the "INITIAL BORROWERS"), the
lending institutions from time to time parties hereto as Lenders (each a
"LENDER" and, collectively, the "LENDERS"), The Bank of Nova Scotia and Societe
Generale, as Co-Lead Arrangers, The Bank of Nova Scotia, as Administrative
Agent, Societe Generale, as Syndication Agent, and each of Royal Bank of Canada
and Australia and New Zealand Banking Group Limited, as Documentation Agents.
WHEREAS, pursuant to an amended and restated credit agreement made as of
December 20, 2004 between the Borrowers, the Administrative Agent, and the
Lenders (the "EXISTING CREDIT AGREEMENT"), the Lenders established the Credit
Facility (for the purpose of this recital only, as defined in the Existing
Credit Agreement);
AND WHEREAS the parties hereto wish to amend and restate the Existing
Credit Agreement as follows:
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
INTERPRETATION
1.1 DEFINED TERMS
The following defined terms shall for all purposes of this agreement, or
any amendment, substitution, supplement, replacement or addition hereto, have
the following respective meanings unless the context otherwise specifies or
requires or unless otherwise defined herein:
"ACCORDION AGREEMENT" means an agreement in the form of Schedule Q (or
in such other form to substantially similar effect as the Administrative
Agent may accept) duly completed, executed and delivered by Kinross
Canada, an Accordion Lender, the Administrative Agent and the Issuing
Lender pursuant to Section 2.2(d).
"ACCORDION LENDER" means a Lender or a proposed new Lender that has
agreed to accept an additional Individual Commitment or an initial
Individual Commitment designated in an Accordion Notice delivered to the
Administrative Agent pursuant to and in accordance with Section 2.2(a).
"ACCORDION NOTICE" has the defined meaning assigned to it in Subsection
2.2(a).
"ACQUISITION" means:
(a) if the acquisition is a share purchase, Kinross Canada shall
Control the entity being acquired immediately following the
completion of such acquisition; or
(b) if the acquisition is an asset purchase, all or substantially
all of the assets of the vendor (or of a division or unit of the
vendor) are being acquired.
"ADDITIONAL BORROWER" means an Additional Canadian Borrower or an
Additional U.S. Borrower.
"ADDITIONAL CANADIAN BORROWER" means any direct or indirect wholly-owned
Subsidiary of Kinross Canada which (i) is incorporated, continued,
amalgamated or otherwise created in accordance with and continues to be
governed by the laws of Canada or any province thereof, (ii) is
domiciled in Canada and (iii) has become a Borrower hereunder pursuant
to Section 11.1(bb).
"ADDITIONAL GUARANTOR" means any direct or indirect Subsidiary of
Kinross Canada (other than the Borrowers and the Non-Guaranteeing
Subsidiaries) which has become a Guarantor pursuant to Section 11.1(aa).
"ADDITIONAL U.S. BORROWER" means any direct or indirect wholly-owned
Subsidiary of Kinross Canada which (i) is incorporated, continued,
organized or otherwise created in accordance with and continues to be
governed by the laws of a state of the United States, (ii) is domiciled
in the United States and (iii) has become a Borrower hereunder pursuant
to Section 11.1(bb).
"ADMINISTRATIVE AGENT" means The Bank of Nova Scotia, in its capacity as
administrative agent of the Lenders, and any successor thereto pursuant
to Section 14.12.
"AFFILIATE" means 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.
"ALTERNATE BASE RATE CANADA" means, at any particular time, the variable
rate of interest per annum, calculated on the basis of a year of 365 or
366 days, as the case may be, which is equal to the greater of (a) the
Base Rate Canada at such time and (b) the aggregate of (i) the Federal
Funds Effective Rate at such time and (ii) 1/2 of 1% per annum.
- 2 -
"ALTERNATE BASE RATE NEW YORK" means, at any particular time, the
variable rate of interest per annum, calculated on the basis of a
360-day year, which is equal to the greater of (a) the Base Rate New
York at such time and (b) the aggregate of (i) the Federal Funds
Effective Rate at such time and (ii) 1/2 of 1% per annum.
"APPLICABLE RATE" means, for a particular Fiscal Quarter, the rate per
annum used to determine the interest rate on various types of Loans, the
rate per annum used to determine Gold Funding Fees, the rate used to
calculate acceptance fees pursuant to Section 7.5, the rate used to
calculate standby fees pursuant to Section 7.7 or the rate used to
calculate Letter issuance fees pursuant to Section 7.8 by reference to
the range in which the Leverage Ratio for the second immediately
preceding Fiscal Quarter falls as set forth in Schedule J hereto,
provided that (i) changes in the Applicable Rate shall be effective as
set forth in Section 7.9, (ii) changes in the Applicable Rate shall
apply, as at the effective dates of such changes, to Bankers'
Acceptances, BA Rate Loans, LIBOR Loans, Gold Loans and Letters
outstanding on such dates, but only for those portions of applicable
terms, Interest Periods or Gold Funding Periods, as the case may be,
falling within those times during which the changes in the Applicable
Rate are effective, as provided above. The Applicable Rate for the
Fiscal Quarter commencing October 1, 2004 shall be determined based upon
the Leverage Ratio using the Net Indebtedness as at June 30, 2004 and
Rolling OCF for the Fiscal Quarter ending June 30, 2004. The Applicable
Rate for each subsequent Fiscal Quarter shall be determined based upon
the Leverage Ratio using Net Indebtedness and Rolling OCF having a
similar two Fiscal Quarter lag.
"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.
"BA DISCOUNTED PROCEEDS" means, in respect of any Bankers' Acceptances
to be accepted by a Canadian Lender on any day, an amount (rounded to
the nearest whole cent and with one-half of one cent being rounded up)
calculated on such day by multiplying:
(a) the aggregate face amount of such Bankers' Acceptances; by
(b) the amount determined by dividing one by the sum of one plus the
product of:
(i) the BA Rate which is applicable to such Bankers'
Acceptance (expressed as a decimal); and
(ii) a fraction, the numerator of which is the number of days
remaining in the term of such Bankers' Acceptances and
the denominator of which is 365;
with the amount as so determined being rounded up or down to the
fifth decimal place and .000005 being rounded up.
- 3 -
"BA PROCEEDS" means, with respect to a particular Bankers' Acceptance,
the BA Discounted Proceeds with respect thereto less the aggregate
amount of the acceptance fees in respect of such Bankers' Acceptance
calculated in accordance with Section 7.5.
"BA RATE" means:
(a) with respect to an issue of Bankers' Acceptances with the same
maturity date to be accepted by a Schedule I Lender hereunder,
the discount rate per annum, calculated on the basis of a year
of 365 days, (i) equal to, as determined by the Administrative
Agent, the arithmetic average (rounded upwards to the nearest
multiple of 0.01%) of the discount rates that appear on the
Reuters Screen CDOR Page at or about 10:00 a.m. (Toronto time)
on the date of issue and acceptance of such Bankers'
Acceptances, for bankers' acceptances having a comparable face
value and an identical maturity date to the face value and
maturity date of such issue of Bankers' Acceptances or (ii) if
such Page does not appear, the discount rate per annum,
calculated on the basis of a year of 365 days, determined by the
Administrative Agent as being the arithmetic average (rounded
upwards to the nearest multiple of 0.01%) of the discount rates
of the Schedule I Reference Lenders determined in accordance
with their normal practices at or about 10:00 a.m. (Toronto
time) on the date of issue and acceptance of such Bankers'
Acceptances, for bankers' acceptances having a comparable face
value and an identical maturity date to the face value and
maturity date of such issue of Bankers' Acceptances; and
(b) with respect to an issue of Bankers' Acceptances with the same
maturity date to be accepted by a Schedule II Lender or a
Schedule III Lender hereunder, the lesser of (i) the discount
rate per annum, calculated on the basis of a year of 365 days,
determined by the Administrative Agent as being the arithmetic
average (rounded upwards to the nearest multiple of 0.01%) of
the discount rates of the Schedule II and III Reference Lenders
determined in accordance with their normal practices at or about
10:00 a.m. (Toronto time) on the date of issue and acceptance of
such Bankers' Acceptances, for bankers' acceptances having a
comparable face value and an identical maturity date to the face
value and maturity date of such issue of Bankers' Acceptances
and (ii) the BA Rate with respect to an issue of Bankers'
Acceptances with the same maturity date to be accepted by a
Schedule I Lender hereunder plus 0.1% per annum.
"BA RATE LOAN" shall have the meaning ascribed thereto in Section 3.5.
"BANKERS' ACCEPTANCE" means a xxxx of exchange subject to the BILLS OF
EXCHANGE ACT (Canada) or a depository xxxx subject to the DEPOSITORY
BILLS AND NOTES ACT (Canada) (a) drawn by a Canadian Borrower and
accepted by a Canadian Lender, (b) denominated in Canadian dollars, (c)
having a term to maturity of 30 to 180 days (subject to availability and
the right of the
- 4 -
Administrative Agent, in its discretion, to restrict the term or
maturity dates applicable to Bankers' Acceptances), (d) issued and
payable only in Canada and (e) having a face amount of not less than
Cdn. $1,000,000 or an integral multiple of Cdn. $1,000 in excess
thereof.
"BANKING DAY" means (x) any day, other than Saturday and Sunday, on
which banks generally are open for business in Montreal, Quebec,
Toronto, Ontario, New York, New York, and Atlanta, Georgia, (y) when
used in respect of LIBOR Loans, means any such day which is also a day
on which banks generally are open for business in London, England and on
which transactions can be carried on in the London interbank market and
(z) when used in respect of Gold Loans, means any such day which is also
a day on which the London Bullion Market Association is open for
business and on which transactions can be carried on in the London
interbank market.
"BASE RATE CANADA" means the variable rate of interest per annum
determined by the Administrative Agent from time to time as its base
rate for United States 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 or 366 days, as the case may
be.
"BASE RATE CANADA LOAN" means monies lent by the Canadian Lenders to a
Canadian Borrower hereunder in United States dollars and upon which
interest accrues at a rate referable to the Alternate Base Rate Canada.
"BASE RATE NEW YORK" means the variable rate of interest per annum
determined by the Administrative Agent from time to time as its base
rate for United States dollar loans made by the Administrative Agent in
the United States 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 360 days.
"BASE RATE NEW YORK LOAN" means monies lent by the U.S. Lenders to a
U.S. Borrower and upon which interest accrues at a rate referable to the
Alternate Base Rate New York.
"BORROWER GUARANTEES" means the one or more guarantees to be entered
into by the Borrowers in favour of the Administrative Agent, in form and
substance satisfactory to the Administrative Agent and as the same may
be amended, modified, supplemented or replaced from time to time, and
pursuant to which each Borrower shall guarantee all of the Secured
Obligations of each other Borrower to the extent they relate to the
Secured Risk Management Agreements of such other Borrowers.
"BORROWER INSTRUMENT OF ADHESION" means an instrument in the form set
forth in Schedule M to be entered into by an Additional Borrower.
- 5 -
"BORROWERS" means the Canadian Borrowers and the U.S. Borrowers and
"BORROWER" means any of the Borrowers.
"BRANCH OF ACCOUNT" means the Canadian Branch of Account in the case of
a Canadian Borrower or the U.S. Branch of Account in the case of a U.S.
Borrower.
"BULLION FRONTING LENDER" means The Bank of Nova Scotia or any other
Lender selected by the Administrative Agent and acceptable to the
Borrowers who assumes in writing the obligation of advancing Gold Loans
under the Credit Facility on behalf of the Non-Bullion Lenders.
"BULLION LENDERS" means, with respect to any particular Gold Loan, the
Bullion Fronting Lender and the relevant Lenders advancing such Gold
Loan other than the Non-Bullion Lenders.
"CANADIAN BORROWERS" means Kinross Canada and each Additional Canadian
Borrower and "CANADIAN BORROWER" means any of the Canadian Borrowers.
"CANADIAN BRANCH OF ACCOUNT" means the Toronto main branch of the
Administrative Agent located at Scotia Plaza, 00 Xxxx Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxx, or such other branch of the Administrative Agent
located in Canada as Kinross Canada and the Administrative Agent may
agree upon.
"CANADIAN DOLLAR EQUIVALENT" means the relevant Exchange Equivalent in
Canadian dollars of any amount of United States dollars.
"CANADIAN LENDERS" means the financial institutions set out and
described as such in Schedule A as amended from time to time, each of
which is resident in Canada for the purposes of the INCOME TAX ACT
(Canada).
"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 generally accepted accounting principles, is,
or is required to be, accounted for as a finance lease obligation on the
balance sheet of that Person.
"CASH" means cash and Cash Equivalents of Kinross Canada determined on a
consolidated basis.
"CASH BALANCE" means, at any particular time, the aggregate amount of
all Cash at such time.
"CASH EQUIVALENTS" means (i) securities issued or directly and fully
guaranteed or insured by the United States or Canadian government 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 incorporated in the United States or
- 6 -
Canada having capital and surplus in excess of $500,000,000, (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, (iv)
commercial paper rated A-1 or the equivalent thereof by Xxxxx'x or S&P
and in each case maturing within one year after the date of acquisition,
(v) investment funds investing at least 95% of their assets in
securities of the types described in clauses (i) to (iv) above and (vi)
readily marketable direct obligations issued by any state of the United
States or province of Canada or any political subdivision thereof having
one of the two highest rating categories obtainable from either Xxxxx'x,
S&P or Dominion Bond Rating Service with maturities of 24 months or less
from the date of acquisition.
"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, in each case
expressed in U.S. dollars.
"CAYMAN PI" or "CAYMAN PARTICIPACOES" means Cayman Participacoes Inc., a
corporation incorporated under the laws of the Cayman Islands.
"CERCLA" means the COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION
AND LIABILITY ACT of 1980 of the United States, as amended by the
SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT and as further amended from
time to time, and any successor statute and including all regulations
issued under all such statutes.
"CODE" means the INTERNAL REVENUE CODE of 1986 of the United States, as
amended from time to time, and any successor statute and including all
regulations issued under all such statutes.
"CO-LEAD ARRANGERS" means The Bank of Nova Scotia and Societe Generale,
in their capacity as co-lead arrangers of the Credit Facility.
"COMEX" means the New York Mercantile Exchange.
"COMPANIES" means, without duplication, the Obligors and the Material
Subsidiaries.
"CONTAMINANT" means any contaminant, as defined by the EPA.
"CONTRACTED PRICE" means, on any particular day (a) with respect to a
drawdown by way of a Gold Loan or a conversion of another availment of
credit into a Gold Loan pursuant to Section 6.1 or 6.3 or with respect
to any of paragraphs (c) - (e) of the definition of "Dollar Loan
Equivalent", the weighted average on the date of any such drawdown or
conversion of the Spot Price and the Strike Price to be realised by the
relevant Borrower from the sale of the Gold comprising such Gold Loan
and (b) with respect to a conversion of a Gold Loan into another
availment of credit pursuant to Section 6.1 or 6.2, the weighted average
on the date of any
- 7 -
such conversion of the Spot Price and the Strike Price to be paid by the
relevant Borrower for the purchase of the Gold required to repay such
Gold Loan.
"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.
"CONVERSION NOTICE" shall have the meaning ascribed thereto in Section
6.4.
"CREDIT DOCUMENTS" means this agreement, the Guarantees, the Borrower
Guarantees, the Security Documents, the Environmental Indemnity
Agreement, the Fee Letters, each Borrower Instrument of Adhesion and all
instruments and agreements executed and delivered by the Obligors in
favour of the Finance Parties from time to time in connection with this
agreement or any other Credit Document, but specifically excluding
Secured Risk Management Agreements.
"CREDIT EXCESS" means, as at a particular date, the amount, if any, by
which the aggregate amount of credit outstanding under the Credit
Facility as at the close of business on such date exceeds the Total
Commitment Amount as at the close of business on such date.
"CREDIT FACILITY" means the revolving credit facility established by the
Lenders in favour of the Borrowers pursuant to Section 2.1.
"DECLINING LENDERS" shall have the meaning ascribed thereto in Section
9.2(b)(i).
"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 a particular Borrower, the account of such Borrower
maintained by the Administrative Agent at the relevant 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 a Company, other than a dividend declared, paid
or set aside for payment by Kinross Canada which is payable in
shares of Kinross Canada;
(b) the redemption, retraction, purchase, retirement or other
acquisition, in whole or in part, of any shares in the capital
of a Company or any
- 8 -
securities, instruments or contractual rights capable of being
converted into, exchanged or exercised for shares in the capital
of a Company, including, without limitation, options, warrants,
conversion or exchange privileges and similar rights; and
(c) the payment of interest or the repayment of principal with
respect to any Indebtedness of a Company which is subordinated
to the Secured Obligations.
"DOCUMENTATION AGENT" means Royal Bank of Canada and Australia and New
Zealand Banking Group Limited, in their capacity as documentation agents
of the Credit Facility.
"$" denotes Canadian dollars or U.S. dollars as the context may permit.
"DOLLAR LOAN EQUIVALENT" means, on any day (a) with respect to a
conversion of a Gold Loan into a Base Rate Canada Loan, Bank Rate New
York Loan or LIBOR Loan pursuant to Section 6.1, the U.S dollar amount
obtained by multiplying the number of xxxx ounces of such Gold Loan on
such day by the applicable Contracted Price on such day, (b) with
respect to a conversion of a Gold Loan into a Prime Rate Loan, BA Rate
Loan or Bankers' Acceptance pursuant to Section 6.1 or 6.2, the Canadian
Dollar Equivalent of the U.S. dollar amount obtained by multiplying the
number of xxxx ounces of such Gold Loan on such day by the applicable
Contracted Price on such day, (c) with respect to the calculation of
Total Indebtedness, the amount of any Gold Loan outstanding at such time
shall be equal to the amount obtained by multiplying the number of xxxx
ounces of such Gold Loan at such time by the applicable Contracted Price
at such time; (d) with respect to a calculation of the U.S. dollar
equivalent of any Gold Loans outstanding at any time for the purposes of
Sections 1.10, 2.1 and 9.8, the aggregate U.S. dollar amount obtained by
multiplying the number of xxxx ounces of each Gold Loan outstanding at
such time by the applicable Contracted Price and (e) with respect to the
calculation of the Individual Commitments hereunder, including, without
limitation, pursuant to Section 2.3, and the calculation of the standby
fee pursuant to Section 7.6, the U.S. dollar amount obtained by
multiplying the number of xxxx ounces of the Gold Loans outstanding on
such day by the applicable Contracted Price.
"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.
"EB INC." means Echo Bay Inc., a corporation incorporated under the laws
of the State of Delaware.
"XX XXXXX" or "EBML" means Echo Bay Mines Ltd., a corporation
incorporated under the laws of Canada.
- 9 -
"ENVIRONMENTAL INDEMNITY AGREEMENT" means the indemnity agreement to be
entered into by the Borrowers and Xxxxx Creek in favour of the
Administrative Agent for the benefit of the Finance Parties, in form and
substance satisfactory to the Administrative Agent and as the same may
be amended, modified, supplemented or replaced from time to time.
"ENVIRONMENTAL LAWS" means 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, CERCLA, EPA and the SURFACE MINING
CONTROL AND RECLAMATION ACT of 1977, as amended).
"EPA" means the ENVIRONMENTAL PROTECTION ACT (Ontario), as amended from
time to time, and any successor statute.
"EQUITY" means, at any particular time, the amount which would, in
accordance with generally accepted accounting principles, be classified
on the consolidated balance sheet of Kinross Canada at such time as
shareholders' equity of Kinross Canada.
"ERISA" means the EMPLOYEE RETIREMENT INCOME SECURITY ACT of 1974 of the
United States, as amended from time to time, and any successor statute
and including all regulations issued under all such statutes.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which any Borrower is a
member and which group is treated as a single employer under Section
414(b) or (c) of the Code or Section 4001 of ERISA.
"ERISA COMPANIES" means the Borrowers and the ERISA Affiliates and
"ERISA COMPANY" means any of the ERISA Companies.
"EVENT OF DEFAULT" means any one of the events set forth in Section
13.1.
"EXCHANGE EQUIVALENT" means, (A) for the purposes of Sections 3.8(c) or
3.8(d), 6.1, 6.2 and 6.3, as of any particular time on any 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 such time on
such date; or (B) otherwise for the purposes of this agreement, 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.
- 10 -
"EXPORT PREPAYMENT CONTRACT" means a transaction entered into by RPM
pursuant to a program of the Central Bank of Brazil (the "CENTRAL BANK")
which enables exporters to borrow U.S. dollars (an "EXPORT LOAN")
outside of Brazil. The proceeds of the Export Loan are immediately
transferred to a Brazilian bank (the "LOCAL BANK") and relent or
otherwise deployed by the Local Bank at a rate in excess of the rate of
interest on the Export Loan. RPM transfers the proceeds of the Export
Loan to the Local Bank in consideration of the Local Bank paying it a
premium and agreeing to pay the Export Loan. Because the program
requires the Export Loan to be paid with proceeds of export
transactions, RPM agrees to pay the Export Loan, on behalf of the Local
Bank, with proceeds from export sales of gold. The Local Bank agrees to
reimburse RPM for the payments it makes on the Export Loan, as and when
the payments are made by RPM. The transaction is guaranteed by TVX
Brazil or another Kinross Subsidiary and constitutes the Permitted
Indebtedness referred to in paragraph (g) thereof. The guarantee,
effectively, only guarantees that RPM will deliver the export sales
proceeds against receiving the same amount from the Local Bank on the
same day. If RPM fails to pay the Export Loan with the proceeds of
export sales, the Local Bank will have to pay the Export Loan with U.S.
dollars purchased in Brazil at rates that are higher than the rates it
would pay for U.S. dollar purchases outside of Brazil.
"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.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any particular day, the
variable rate of interest per annum, calculated on the basis of a year
of 360 days and for the actual number of days elapsed, equal to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by Federal Funds
brokers as published for such day (or, if such day is not a Banking Day,
for the next preceding Banking Day) by the Federal Reserve Bank of New
York or, for any Banking Day on which such rate is not so published by
the Federal Reserve Bank of New York, the average of the quotations for
such day for such transactions received by the Administrative Agent from
three Federal Funds brokers of recognized standing selected by the
Administrative Agent.
"FEE LETTERS" means:
(a) the agency fee letter of even date between the Administrative
Agent and the Borrowers;
(b) the engagement letter dated December 2, 2004 between the
Borrowers and The Bank of Nova Scotia;
(c) the fee letter dated December 14, 2004 between the Borrowers and
Societe Generale,
- 11 -
(d) the fee letter dated December 15, 2004 between the Borrowers and
Royal Bank of Canada; and
(e) the fee letter dated December 14, 2004 between the Borrowers and
Australia and New Zealand Banking Group Limited,
in each case as the same may be amended, modified, supplemented
or replaced from time to time.
"FINANCE DOCUMENTS" means the Credit Documents and the Secured Risk
Management Agreements.
"FINANCE PARTIES" means the Administrative Agent, the Lenders 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.
"FORT XXXX DEPOSIT" means the real property owned by Fairbanks U.S. and
Xxxxx Creek and described as such in Schedule O of the Existing Credit
Agreement, together with all buildings and structures therein and
appurtenances thereto.
"FORT XXXX MINE" means the gold mine located in central Alaska, 22 miles
north of Fairbanks and, for certainty, includes the Fort Xxxx Deposit,
True North Deposit and Xxxx Xxxx Deposit.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System of the United States or any successor thereto.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means generally accepted
accounting principles in effect in Canada from time to time consistently
applied, as recommended by the Handbook of the Canadian Institute of
Chartered Accountants.
"GLOBAL PRO RATA SHARE" means, at any particular time with respect to a
particular Lender, the ratio of the Individual Commitment of such Lender
at such time to the Total Commitment Amount at such time.
"GOFOR" means the rate of interest per annum, calculated on the basis of
a year of 360 days, determined by the Bullion Fronting Lender for a
particular Gold Funding Period to be the mean rate of interest per annum
that appears as such on the Reuters page GOFO at 11:00 a.m. (London
time) on the second Banking Day prior to the commencement of such Gold
Funding Period.
- 12 -
"GOLD" means gold bars or unallocated gold complying with the rules of
the LBMA relating to good delivery and fineness from time to time in
effect, unless otherwise agreed in writing by the Borrowers, the Bullion
Fronting Lender, the Administrative Agent and the Lenders.
"GOLD EQUIVALENT" means the gold ounces plus the gold equivalent of
silver ounces, with silver ounces converted to gold ounces based upon
the spot gold and silver prices at the time of such conversion.
"GOLD FUNDING FEES" means the amounts with respect to Gold Loans to be
paid by the relevant Borrower to the Administrative Agent for the
account of the relevant Lenders as an interest equivalent as determined
in accordance with Section 7.1(vi).
"GOLD FUNDING PERIOD" means, with respect to any Gold Loan, the period
commencing on the date such Gold Loan is made or the last day of the
immediately preceding Gold Funding Period, as the case may be, and
ending on the last day thereof, in each case subject to availability.
Notwithstanding the foregoing (a) if any Gold Funding Period would
otherwise commence before and end after the Maturity Date, such Gold
Funding Period shall end on the Maturity Date and (b) each Gold Funding
Period that would otherwise end on a day that is not a Banking Day shall
end on the next succeeding Banking Day.
"GOLD FUNDING RATE" means, with respect to any Gold Loan for any Gold
Funding Period therefor, the rate per annum quoted by the Bullion
Fronting Lender to the Administrative Agent on the date two Banking Days
prior to the first day of such Gold Funding Period as the rate offered
by the Bullion Fronting Lender for such Gold Loan for such Gold Funding
Period, which rate shall be equal to LIBOR for an Interest Period equal
to such Gold Funding Period minus GOFOR for such Gold Funding Period.
"GOLD LOAN EQUIVALENT" means, on any day, with respect to a conversion
of Loan or Bankers' Acceptance into a Gold Loan pursuant to Section 6.1
or 6.3, the quantity of xxxx ounces of Gold obtained by dividing the
principal amount of such Loan (if a Base Rate Canada Loan, Base Rate New
York Loan or LIBOR Loan) or the U.S. Dollar Equivalent of such Loan (if
a Prime Rate Loan, BA Rate Loan or Bankers' Acceptance) on such day by
the applicable Contracted Price on such day.
"GOLD LOANS" means an advance of credit denominated in Gold made by the
Bullion Lenders to a Borrower and upon which interest accrues at a rate
referable to the Gold Funding Rate.
"GREEK, RUSSIAN AND ZIMBABWIAN SUBSIDIARIES" means (i) TVX Hellas A.E.,
Xxxxx Xxxxxxx Gold Corporation and Kinross Holdings Zimbabwe Limited
(the "Original Greek, Russian and Zimbabwian Subsidiaries"); and (ii)
the existing
- 13 -
and any future Subsidiaries of any of the Original Greek, Russian and
Zimbabwian Subsidiaries.
"GUARANTEES" means the one or more guarantees to be entered into by the
Guarantors in favour of the Administrative Agent for the benefit of the
Finance Parties, each in form and substance satisfactory to the
Administrative Agent, and pursuant to which each Guarantor shall
guarantee all of the Secured Obligations of one or more of the
Borrowers, as the same may be amended, modified, supplemented or
replaced from time to time.
"GUARANTEE OBLIGATION" of any Person (the "guaranteeing person") means
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any other
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The amount
of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by
Kinross Canada in good faith.
"GUARANTORS" means Kinam Canada, Kinam Gold, Xxxxx Creek, EB Inc., TVX
Cayman, Kinross Americas Holdings, Miicre, Rio Paracatu, TVX Brazil and
each Additional Guarantor and "GUARANTOR" means any of the Guarantors.
"HAZARDOUS MATERIALS" means:
(a) any "hazardous substance", as defined by CERCLA;
- 14 -
(b) any "hazardous waste", as defined by the RESOURCE CONSERVATION
AND RECOVERY ACT of the United States, as amended from time to
time, or any successor statute;
(c) any petroleum product, asbestos, polychlorinated biphenyl (PCB),
natural gas, natural gas liquids, liquified natural gas or
synthetic gas usable for fuel;
(d) any material defined as "hazardous waste" pursuant to 40 Code of
Federal Regulations Part 261 or any "hazardous chemical" as
defined pursuant to 29 Code of Federal Regulations Part 1910; or
(e) 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.
"HEDGING AGREEMENT" means any Risk Management Agreement which
constitutes any gold, silver 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, and any
other exchange or rate protection transaction, any combination of such
transactions or any option with respect to any such transaction entered
into by any Borrower.
"IGM" means International Gold Mining, a corporation incorporated under
the laws of the Cayman Islands.
"INDEBTEDNESS" of any Person means, without duplication, (i)
indebtedness of such Person for borrowed money or bullion 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) 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 gold, silver 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).
- 15 -
"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 2.2, 2.4, 8.3, 9.2 and 15.5 as
the individual commitment of such Lender with respect to the Credit
Facility or as adjusted pursuant to Section 3.10, provided that, upon
the termination of the Credit Facility pursuant to Section 2.5, the
Individual Commitment of each Lender with respect to the Credit Facility
shall thereafter be equal to the Individual Commitment of such Lender
under the Credit Facility immediately prior to the termination of the
Credit Facility.
"INTEREST COVERAGE RATIO" means, for any Fiscal Quarter, the ratio of
(i) Rolling OCF for such Fiscal Quarter to (ii) Rolling Interest
Expenses for such Fiscal Quarter.
"INTEREST EXPENSES" means, for any particular period, the amount which
would, in accordance with generally accepted accounting principles, be
classified on the consolidated income statement of Kinross Canada for
such period as gross interest expenses (including, for greater
certainty, issuance fees with respect to letters of credit and stamping
fees with respect to bankers' acceptances).
"INTEREST PERIOD" means, in the case of any LIBOR Loan, the applicable
period for which interest on such LIBOR Loan shall be calculated
pursuant to Article 7.
"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. The amount of any
Investment shall be the original principal or capital amount thereof
less all returns of principal or equity, or distributions or dividends
paid, thereon and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or
capital amount equal to the fair value of such property at the time of
such Investment, as determined in good faith by Kinross Canada.
"INVESTMENT ACCOUNT" means, with respect to a particular Obligor, any
bank account or investment account now or hereafter maintained by such
Obligor with the Administrative Agent or any other financial institution
and provided that:
(a) such Obligor has pledged with the Administrative Agent and
granted to the Administrative Agent a security interest in all
of its Investment Account Collateral pursuant to a pledge
agreement, in form and substance satisfactory to all of the
Lenders, as continuing collateral security for the Secured
Obligations of such Obligor; and
(b) if such account is maintained with a financial institution other
than the Administrative Agent, such Obligor shall have provided
to the Administrative Agent, in form and substance satisfactory
to the
- 16 -
Administrative Agent, an instrument of such financial
institution (i) acknowledging that a security interest in the
Investment Account Collateral has been granted to the
Administrative Agent and confirming that no such security
interest has been granted to such financial institution, (ii)
agreeing not to exercise any right of set off against such
account, (iii) agreeing to provide the Administrative Agent,
upon request, with information as to the amount on deposit in
such accounts and any investments thereof, (iv) agreeing not to
permit withdrawals from such account if so notified by the
Administrative Agent and (v) agreeing to deliver up the
Investment Account Collateral to the Administrative Agent upon
notice from the Administrative Agent that the security therein
is enforceable.
"INVESTMENT ACCOUNT COLLATERAL" means, with respect to a particular
Obligor, all cash (in the form of Canadian dollars or United States
dollars) and Permitted Portfolio Investments on deposit from time to
time in all Investment Accounts of such Obligor.
"ISSUING LENDER" means The Bank of Nova Scotia or any other Lender
selected by the Administrative Agent and acceptable to the Borrowers who
assumes in writing the obligation of issuing Letters under the Credit
Facility on behalf of the Lenders.
"KINAM CANADA" or "KINAM BC" means Kinam (B.C.) Ltd., a corporation
continued under the Province of Ontario.
"KINAM GOLD" means Kinam Gold Inc., a corporation incorporated under the
laws of the State of Nevada.
"XXXXX XXXXXXX" means Xxxxx Xxxxxxx Inc., a corporation incorporated
under the laws of the State of Delaware.
"KINROSS AMERICAS" or "TVX NEWMONT" means Kinross Americas (Cayman) Inc.
(formerly, TVX Newmont Americas (Cayman) Inc.), a corporation
incorporated under the laws of the Cayman Islands.
"KINROSS AMERICAS HOLDINGS" or "TVX NEWMONT HOLDINGS" means Kinross
Americas (Cayman) Holdings Inc. (formerly, TVX Newmont Americas (Cayman)
Holdings Inc.), a corporation incorporated under the laws of the Cayman
Islands.
"LENDERS" means, collectively, the Canadian Lenders and the U.S. Lenders
and "LENDER" shall mean any U.S. Lender or any financial institution
which, together with its Affiliate or its separately domiciled branch,
agency or lending office, constitutes a Canadian Lender and a U.S.
Lender, and, after the Termination Date, "Lender" shall mean each Person
that was a Lender immediately prior to the Termination Date but only for
so long as such Person is a Qualified Risk Management Lender. For
certainty, a Non-Continuing Lender shall not, for the
- 17 -
purposes of considering any Extension Request pursuant to Section 9.2(a)
only, be considered to be a Lender.
"LETTERS" means:
(a) standby letters of credit or letters of guarantee issued by the
Issuing Lender (i) at the request, and on the credit, of a
Canadian Borrower and (ii) on behalf of such Canadian Borrower
and, if applicable, a Subsidiary of such Canadian Borrower, each
being denominated in Canadian dollars or United States 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 and being otherwise
in a form satisfactory to the Issuing Lender; and
(b) standby letters of credit issued by the Issuing Lender (i) at
the request, and on the credit, of a U.S. Borrower and (ii) on
behalf of such U.S. Borrower and, if applicable, a Subsidiary of
such U.S. Borrower, each being denominated in United States
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
and being otherwise in a form satisfactory to the Issuing
Lender.
"LEVERAGE RATIO" means, for any Fiscal Quarter, the ratio of (i) Net
Indebtedness at the last day of such Fiscal Quarter to (ii) Rolling OCF
for such Fiscal Quarter.
"LIBOR LOAN" means monies lent by the Canadian Lenders to a Canadian
Borrower in United States dollars and upon which interest accrues at a
rate referable to LIBOR or monies lent by the U.S. Lenders to a U.S.
Borrower in United States dollars and upon which interest accrues at a
rate referable to LIBOR (Reserve Adjusted).
"LIBOR" means the rate of interest per annum, calculated on the basis of
a year of 360 days, determined by the Administrative Agent for a
particular Interest Period to be the rate of interest per annum that
appears as such on the Telerate Screen Page 3750 at 11:00 a.m. (London
time) on the second Banking Day prior to the commencement of such
Interest Period.
"LIBOR (RESERVE ADJUSTED)" means, for a particular Interest Period, the
rate per annum, calculated on the basis of a year of 360 days,
determined pursuant to the following formula (and rounded up to the
nearest 1/16 of 1%):
LIBOR (Reserve Adjusted) = LIBOR for such Interest Period
-------------------------------------
1 - LIBOR Reserve Percentage for such
Interest Period
LIBOR (Reserve Adjusted) for any Interest Period for LIBOR Loans will be
determined by the Administrative Agent on the basis of the LIBOR Reserve
- 18 -
Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent, two Banking Days before the first
day of such Interest Period.
"LIBOR RESERVE PERCENTAGE" means, for a particular Interest Period, the
reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve
requirements) specified under regulations issued from time to time by
the F.R.S. Board and then applicable to assets or liabilities consisting
of and including "Eurocurrency Liabilities", as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or
comparable to such Interest Period.
"LIEN" means any deed of trust, mortgage, charge, hypothec, assignment,
pledge, lien, vendor's privilege, vendor's right of reclamation 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 (including any agreement
to give any of the foregoing and any filing of or agreement to give any
financing statement under the UCC, the PPSA or any similar action under
any similar law of any other jurisdiction).
"LOANS" means Prime Rate Loans, BA Rate Loans, Base Rate Canada Loans,
Base Rate New York Loans, LIBOR Loans and Gold Loans.
"LONDON BULLION MARKET ASSOCIATION" and "LBMA" mean The London Bullion
Market Association and its successors which represent the institutions
in the United Kingdom active in all aspects of bullion and the services
related to it, including the clearing, physical and regulatory aspects.
Among its members are those with "market making" status whose activities
include the quoting of prices for buying and selling Gold for spot and
forward delivery throughout each working day.
"LONDON GOLD FIXING" means a gold price fixing made pursuant to a
meeting among the five members from time to time of the London Gold
Market.
"LONDON GOLD MARKET" means the market in London on which members of the
LBMA, among other things, quote prices for the buying and selling of
Gold.
"LONDON PRICE" means, on any particular day, the fixing price per fine
ounce xxxx (in U.S. dollars) for Gold announced as the "Gold-Fix-P.M."
at the afternoon London Gold Fixing for such day; provided, however,
that if the afternoon London Gold Fixing shall not have occurred for
such day, the "London Price" for such day shall be the fixing price per
xxxx ounce (in U.S. dollars) for Gold announced as the "Gold-Fix-A.M."
at the morning London Gold Fixing for such day or if the morning London
Gold Fixing shall not have occurred for such day,
- 19 -
the "London Price" for such day shall be the publicly quoted price per
xxxx ounce (in U.S. dollars) for Gold on such other accessible
international Gold market (allowing for physical delivery of such Gold)
as may be reasonably selected by the Bullion Fronting Lender; and,
provided, further, that in the event that the Bullion Fronting Lender
shall have been unable to select any other such international Gold
market, then the "London Price" for such day shall mean such price as
the Bullion Fronting Lender shall reasonably determine having regard to
the most recent London Gold Fixing. In the event that such day is not a
Banking Day, then the "London Price" shall be the London Price on the
immediately preceding Banking Day.
"MACAINES" means Macaines Mining Properties Ltd., a corporation
incorporated under the laws of the Cayman Islands.
"MAJORITY LENDERS" means, at any particular time up to the termination
of the Credit Facility pursuant to Section 2.4, such group of Lenders
(and, if there is more than one Lender, at least two Lenders) whose
Individual Commitments aggregate at least two-thirds of the Total
Commitment Amount at such time and, at any particular time after the
termination of the Credit Facility pursuant to Section 2.4 until the
Termination Date, such group of Lenders which have, in the aggregate,
extended credit which is outstanding hereunder in an amount at least
two-thirds of the aggregate amount of credit outstanding hereunder at
such time after giving effect to all necessary adjustments pursuant to
Section 14.16 and, at any particular time after the Termination Date,
such group of Lenders which have aggregate Exposure in an amount at
least two-thirds of the aggregate Exposure of all of the Lenders at such
time.
"XXXXXX" or "MDO" means Compania Xxxxxx Xxxxxx de Oro, a corporation
incorporated under the laws of Chile.
"MATERIAL ADVERSE CHANGE" means any change of circumstances or event (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 a material adverse effect (or a series
of adverse effects, none of which is material in and of itself but
which, cumulatively, result in a material adverse effect) on the
business, property, assets, liabilities, conditions (financial or
otherwise) or prospects of the Obligors taken as a whole since December
31, 2003, on the ability of any Obligor to perform its material
obligations under any Finance Document or on the ability of any Finance
Party to enforce any of such obligations. The Lenders acknowledge and
agree that, provided and so long as the obligations of the Greek,
Russian and Zimbabwian Subsidiaries are non-recourse to the Companies,
no event or circumstance affecting any of the Greek, Russian or
Zimbabwian Subsidiaries, including any bankruptcy or insolvency thereof,
would or could reasonably be expected to result in a Material Adverse
Effect.
- 20 -
"MATERIAL CONTRACTS" means the contracts listed in Schedule P.
"MATERIAL SUBSIDIARIES" means, without duplication, the Borrowers (other
than Kinross Canada), the Guarantors and the Significant Material
Subsidiaries.
"MATURITY DATE" means April 30, 2008, as the same may be extended from
time to time pursuant to Section 9.2.
"XXXXX CREEK" means Xxxxx Creek Mining, Inc., a corporation incorporated
under the laws of the State of Alaska.
"MIICRE" means Miicre Mining Investments Ltd., a corporation
incorporated under the laws of the Cayman Islands.
"MINE OWNERS" means Xxxxxx, Rio Paracatu and Mineracao Serra Grande S.A.
and "MINE OWNER" means any of the Mine Owners.
"MONTANA" or "MONTANA PARTICIPACOES" means Montana Participacoes Ltda.,
a corporation incorporated under the laws of Brazil.
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any successor by
merger or consolidation to its business.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any ERISA Company is making or
accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"NET INCOME" means, for any particular period, the amount which would,
in accordance with generally accepted accounting principles, be
classified on the consolidated income statement of Kinross Canada for
such period as the net income of Kinross Canada excluding any
extraordinary items.
"NET INDEBTEDNESS" means, at any particular time, Total Indebtedness at
such time less the Cash Balance at such time. For the purposes of the
calculation of "Net Indebtedness", the "Cash Balance" shall be
calculated without limitation merely to Canada and the United States.
"NEWINCO" or "CAYMAN NEWINCO" means Cayman Newinco Inc., a corporation
incorporated under the laws of the Cayman Islands.
"NEWINCO BRAZIL" or "NEWINCO PARTICIPACOES" means Newinco Comercia e
Participacoes Ltda., a corporation incorporated under the laws of
Brazil.
"NON-BULLION LENDER" means, with respect to any particular Gold Loan,
any Lender who is otherwise obligated to advance its Pro Rata Share
thereof who has notified the Borrower, the Bullion Fronting Lender and
the Administrative Agent in writing, prior to the date of delivery of
the relevant Drawdown Notice,
- 21 -
Conversion Notice or Rollover Notice (unless otherwise agreed to by the
Bullion Fronting Lender), that it is not capable of funding Gold
directly to the relevant Borrower.
"NON-CONTINUING LENDER" means any Declining Lender ( or its successors
or permitted assigns) who, pursuant to Section 9.2(b)(ii) has not had
all of its Individual Commitment acquired by Approving Lenders or
Substitute Lenders.
"NON-CONTINUING LENDER MATURITY DATE" means, with respect to any
Non-Continuing Lender, the Maturity Date as determined pursuant to
Section 9.2(b)(ii).
"NON-GUARANTEEING SUBSIDIARIES" means all of the Subsidiaries of Kinross
Canada which are not Obligors as of the date hereof (to the extent not
subsequently becoming a Significant Material Subsidiary) and any future
Subsidiaries of Kinross Canada which are designated as Non-Guaranteeing
Subsidiaries in writing by the Majority Lenders.
"NON-RECOURSE INDEBTEDNESS" means Indebtedness of any Subsidiary, direct
or indirect, of Kinross Canada (other than the Material Subsidiaries)
with respect to which no recourse may be had in any way to the
Companies.
"NON-RECOURSE SUBSIDIARIES" means any Subsidiary, direct or indirect, of
Kinross Canada that has any Non-Recourse Indebtedness.
"NORMANDY CAYMAN" or "NORMANDY CAYMAN HOLDCO" means Normandy Cayman
Holdco Inc., a corporation incorporated under the laws of the Cayman
Islands.
"OBLIGORS" means the Borrowers and the Guarantors.
"OCF" means, for any particular Fiscal Quarter, Net Income for such
Fiscal Quarter plus, to the extent deducted in determining Net Income,
the aggregate of
(a) Interest Expenses for such Fiscal Quarter;
(b) consolidated income tax expenses of Kinross Canada for such
Fiscal Quarter; and
(c) consolidated depreciation and amortization expenses and other
non-cash expenses of Kinross Canada for such Fiscal Quarter.
The calculation of OCF shall be adjusted for non-cash revenues and
expenses of Kinross Canada on a consolidated basis including, without
limitation, deferred revenue and the difference between accrued and cash
reclamation costs.
"OFFICIAL BODY" means any national government or government of any
political subdivision thereof, or any agency, authority, board, central
bank, monetary
- 22 -
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.
"PARACATU ACQUISITION AGREEMENT" means the share sale agreement made
December 9, 2004 between Rio Tinto Brazilian Holdings Limited, Rio Tinto
European Holdings Limited, Rio Tinto Brazilian Investments Limited, TVX
Brazil, Cayman PI and Kinross Canada, as amended, modified, supplemented
or replaced from time to time pursuant to the terms hereof.
"PARACATU ADVANCE" means an advance of up to U.S. $108,000,000 of credit
under the Credit Facility to partially finance the Paracutu Transaction.
"PARACATU TRANSACTION" means the completion of the purchase of Shares
and Indebtedness contemplated by the Paracatu Acquisition Agreement.
"PBGC" means Pension Benefit Guaranty Corporation.
"PERMITTED ACQUISITION" means:
(a) an Acquisition made solely with Shares of Kinross Canada that
satisfies all of the following conditions:
(i) the entity being acquired (in the case of a share
Acquisition) or the vendor (in the case of an asset
Acquisition) is in the precious metals industry and the
Acquisition is viewed by Kinross Canada and by such
entity being acquired or such vendor as not being
hostile but rather voluntary and consensual; and
(ii) no Default has occurred and is continuing at the time of
the making of such Acquisition or would arise as a
result of such Acquisition; or
(b) an Acquisition not made solely with Shares of Kinross Canada
that satisfies all of the following conditions:
(i) the entity being acquired (in the case of a share
Acquisition) or the vendor (in the case of an asset
Acquisition) is in the precious metals industry and the
Acquisition is viewed by Kinross Canada and by such
entity being acquired or such vendor as not being
hostile but rather voluntary and consensual;
(ii) (A) the entity being acquired (in the case of a
share Acquisition) or the acquired assets (in
the case of an asset Acquisition) operates in a
Permitted Jurisdiction; or
- 23 -
(B) the entity being acquired (in the case of a
share Acquisition) or the acquired assets (in
the case of an asset Acquisition) operates in a
jurisdiction other than a Permitted Jurisdiction
but the subject Acquisition otherwise satisfies
the conditions set out in paragraphs (b)(i) and
(iii) - (v) and the total cash consideration for
Permitted Acquisitions in jurisdictions other
than Permitted Jurisdictions for any Fiscal Year
shall not exceed $25,000,000 in the aggregate;
(iii) total cash consideration for Permitted Acquisitions
shall not exceed $50,000,000 in the aggregate for any
Fiscal Year;
(iv) 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; and
(v) the financial covenants set out in Section 11.1(o) - (q)
would be met, on a pro forma basis, immediately after
giving effect to the implementation of any such
Acquisition. The Borrowers shall provide the Lenders
with unaudited pro forma financial statements evidencing
such compliance, as well as any internal or external due
diligence performed by or on behalf of the Borrowers
with respect to the proposed Acquisition, in each case
as may reasonably be required by the Administrative
Agent.
"PERMITTED INDEBTEDNESS" means any one or more of the following:
(a) the Secured Obligations;
(b) Indebtedness between the Companies provided that Section 11.1(u)
has been complied with;
(c) Indebtedness arising under Capital Leases and Purchase Money
Indebtedness provided that the aggregate amount of such
Indebtedness incurred and outstanding at any time shall not
exceed U.S.$40,000,000;
(d) Indebtedness in respect of Hedging Agreements otherwise not
prohibited hereunder and incurred in the ordinary course of
business;
(e) trade payables and other accrued liabilities incurred in the
ordinary course of business and payable in accordance with
customary practices;
(f) Non-Recourse Indebtedness;
(g) Indebtedness of TVX Brazil or another Subsidiary of Kinross
Canada of RPM's obligations under any Export Prepayment
Contract; and
- 24 -
(h) any other Indebtedness provided that the aggregate amount of
such other Indebtedness incurred and outstanding at any time
shall not exceed U.S. $75,000,000.
"PERMITTED JURISDICTIONS" means Canada, the United States, Mexico,
Brazil, Chile, Peru, Western Europe and Australia.
"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 or 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
generally accepted accounting principles 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 rendered or the Lien of any claim filed
which is being contested in good faith by appropriate
proceedings and as to which reserves are being maintained in
accordance with generally accepted accounting principles 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) undetermined or inchoate Liens and charges incidental to
construction or current operations which have not at such time
been filed pursuant to law or which relate to obligations not
due or delinquent;
(d) restrictions, easements, rights-of-way, servitudes or other
similar rights in land granted to or reserved by other persons
which 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 municipality or
governmental or other public authority 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) the Lien resulting from the deposit of cash or securities (i) in
connection with contracts, 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, or (iii) in connection with the discharge
of Liens or claims incidental to construction and mechanics',
warehouseman's, carriers' and other similar liens;
- 25 -
(g) security given to a public utility or any municipality or
governmental or other public authority when required by such
utility or other authority in connection with the operations of
any Company, all in the ordinary course of business;
(h) the reservations, limitations, provisos and conditions, if any,
expressed in any original grants from the Crown or in comparable
grants, if any, 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;
(j) applicable municipal and other governmental 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 minerals or the proceeds of sale of such 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 minerals
under any such processing arrangement, but only insofar as such
Liens relate to obligations which are at such time not past due;
(l) any other Lien satisfaction of which has been provided for by
deposit in escrow of cash or a surety bond in an amount not
exceeding $2,000,000 at any time;
(m) Liens to secure Non-Recourse Indebtedness provided that the
assets thereby encumbered are not related to mines that have
commenced operation as at the date hereof;
(n) Liens securing Indebtedness arising under Capital Leases and
Purchase Money Indebtedness to the extent such Indebtedness is
Permitted Indebtedness;
(o) royalties on the production or profits from mining which are in
existence on the date hereof or are granted or assumed on
property hereafter acquired in accordance with the terms hereof;
(p) Liens set out in the title opinions referred to in Section
12.2(c)(vii) of the Existing Credit Agreement to the extent
approved in writing by the Administrative Agent;
(q) Liens granted pursuant to the Security Documents;
- 26 -
(r) Liens securing up to U.S. $50,000,000 of the Indebtedness
permitted pursuant to paragraph (h) of the definition of
"Permitted Indebtedness"; and
(s) the extension, renewal or refinancing of any Permitted Lien,
provided that the amount so secured does not exceed the original
amount secured immediately prior to such extension, renewal or
refinancing and the Lien is not extended to any additional
property.
"PERMITTED PORTFOLIO INVESTMENTS" means Cash Equivalents and short-term
portfolio investments made in accordance with the then current
investment policy of the Board of Directors of Kinross Canada or
otherwise acceptable to the Administrative Agent.
"PERSON" means any natural person, corporation, firm, partnership, joint
venture, joint stock company, incorporated or unincorporated
association, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"PLAN" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA which is maintained for
employees of any ERISA Company.
"PLEDGED SUBSIDIARIES" means those Subsidiaries of Kinross Canada the
Shares of which are pledged to the Administrative Agent pursuant to a
Security Document.
"PPSA" means the PERSONAL PROPERTY SECURITY ACT (Ontario), as amended.
"POLLUTANT" means any pollutant, as defined by EPA.
"POSTPONEMENT AND SUBORDINATION UNDERTAKING" means the postponement and
subordination undertaking to be entered into by the Subsidiaries of
Kinross Canada (other than the Obligors) in favour of the Administrative
Agent pursuant to Section 11.1(u), in form and substance satisfactory to
the Administrative Agent as the same may be amended, modified,
supplemented or replaced from time to time.
"PREPAYMENT NOTICE" shall have the meaning ascribed thereto in Section
9.4.
"PRIME RATE" means the greater of (a) 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 and (b) the sum of (A) the BA Rate for a Schedule I
Lender for a 30 day term on the date of determination and (B) 5/8 of 1%
per annum.
- 27 -
"PRIME RATE LOANS" means monies lent by the Canadian Lenders to a
Canadian Borrower hereunder in Canadian dollars and upon which interest
accrues at a rate referable to the Prime Rate.
"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 the Borrowers
pursuant to Section 13.1 declaring all indebtedness of the Borrowers
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, Guarantees or Borrower Guarantees. For greater
certainty, prior to the Security becoming enforceable (x) insurance
proceeds derived as a result of the loss or destruction of any of the
Secured Assets or (y) cash or non-cash proceeds derived from any
expropriation or other condemnation of any of the Secured Assets shall
not constitute Proceeds of Realization.
"PRO RATA SHARE" means, at any particular time:
(a) with respect to a particular Canadian Lender, the ratio of the
Individual Commitment of the Lender which includes such Canadian
Lender at such time to the aggregate of the Individual
Commitments of all Lenders which include a Canadian Lender at
such time; and
(b) with respect to a particular U.S. Lender, the Global Pro Rata
Share of the Lender which includes such U.S. Lender at such
time;
except as otherwise provided in Section 3.10.
"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 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:
(a) such Person sells all of its rights and obligations under the
Credit Documents prior to the Termination Date; or
(b) the Termination Date and the Maturity Date have both occurred.
"RECEIVER" means a receiver, receiver and manager or other 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.
- 28 -
"RELEASE" means a "release", as such term is defined in CERCLA.
"RESERVES" means, at any particular time, the aggregate proven and
probable recoverable reserves of gold and silver to the extent of the
interest of the Obligors therein expressed in Gold Equivalent at mines
then in production (other than those located in Russia, Greece or
Zimbabwe) and otherwise acceptable to the Administrative Agent, acting
reasonably. For purposes of greater certainty, (x) recoverable reserves
shall be based upon the Fiscal Year end recoverable reserves as reported
by Kinross Canada to the Administrative Agent but may include additional
recoverable reserves which have been added subsequent to such Fiscal
Year end to the extent acceptable to the Majority Lenders, acting
reasonably, (y) recoverable reserves shall be decreased by the ounces of
gold and silver that form part of such recoverable reserves that have
been actually mined since the beginning of the subsequent Fiscal Year
until the time of determination, and (z) the recovery factor applied in
calculating recoverable reserves must be acceptable to the Majority
Lenders, acting reasonably.
"RIO PARACATU" or "RPM" means Rio Paracatu Mineracao S.A., a corporation
amalgamated under the laws of Brazil.
"RISK MANAGEMENT AGREEMENTS" means any present or future swap, hedging,
foreign exchange or cash management agreement or other derivative
transaction entered in by any Borrower.
"ROLLING INTEREST EXPENSES" means, for any Fiscal Quarter, Interest
Expenses for such Fiscal Quarter and the three immediately preceding
Fiscal Quarters.
"ROLLING OCF" means, for any Fiscal Quarter, OCF for such Fiscal Quarter
and for the three immediately preceding Fiscal Quarters.
"ROLLOVER NOTICE" shall have the meaning ascribed thereto in Section
5.4.
"XXXX XXXX DEPOSIT" means the real property owned by Fairbanks U.S. and
described as such in Schedule P of the Existing Credit Agreement,
together with all buildings and structures thereon and appurtenances
thereto.
"S & P VALUATION REPORT" means the final valuation report of Standard &
Poor's Corporate Value Consulting (a division of the XxXxxx-Xxxx
Companies) with respect to the purchase price allocation and the
goodwill recorded as part of the 2003 business combination of Kinross
Canada, TVX Gold Inc. and XX Xxxxx.
"SALE LEASEBACK" shall mean any transaction or series of related
transactions pursuant to which the Borrowers or any of the Material
Subsidiaries (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 or
other property that it intends to use for substantially the same purpose
or purposes as the property being sold, transferred or disposed.
- 29 -
"SCHEDULE I LENDERS" means the Lenders that are listed in Schedule I to
the BANK ACT (Canada).
"SCHEDULE II LENDERS" means the Lenders that are listed in Schedule II
to the BANK ACT (Canada).
"SCHEDULE III LENDERS" means the Lenders that are listed in Schedule III
to the BANK ACT (Canada).
"SCHEDULE I REFERENCE LENDERS" means the Administrative Agent and up to
two other Schedule I Lenders, which other Schedule I Lenders shall be
acceptable to the Administrative Agent and Kinross Canada acting
reasonably.
"SCHEDULE II AND III REFERENCE LENDERS" means a reference group of up to
three Schedule II Lenders and Schedule III Lenders, the composition of
which shall be acceptable to the Administrative Agent and Kinross Canada
acting reasonably.
"SECURED ASSETS" means the property, assets and undertakings of the
Obligors in which the Administrative Agent has directly or indirectly
been granted a Lien 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 of the Obligors 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 and Secured Obligations of
a particular Obligor shall mean all indebtedness, obligations and
liabilities, present or future, absolute or contingent, matured or not,
at any time owing by such Obligor 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 Obligor 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 a Borrower 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
- 30 -
the benefit of the Finance Parties in order to grant directly or
indirectly to the Administrative Agent a Lien on the present and future
personal property, assets and undertakings of the Obligors in which a
Lien has been granted pursuant to the security documents described in
Schedule K and to otherwise comply with Sections 11.1(aa), (bb) and (cc)
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 K.
"SHARES", as applied to the shares 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.
"SIGNIFICANT MATERIAL SUBSIDIARY" means any direct or indirect
Subsidiary of Kinross Canada (other than any such Subsidiary whose
jurisdiction of formation is not a Permitted Jurisdiction) in respect of
which:
(a) the product obtained by multiplying (i) the percentage of the
equity Shares of such Subsidiary directly or indirectly owned by
Kinross Canada by (ii) the gross revenues of such Subsidiary for
the most recently completed four Fiscal Quarters, is greater
than or equal to 5% of Kinross Canada's consolidated revenues
for the four most recently completed Fiscal Quarters.; or
(b) the product obtained by multiplying (i) the percentage of the
equity Shares directly or indirectly owned by Kinross Canada by
(ii) the book value of the assets of such Subsidiary as at the
last day of the most recently completed fiscal year of such
Subsidiary, is greater THAN 2.5% of the consolidated assets of
Kinross Canada as of the last day of the most recently completed
Fiscal Quarter, expressed in U.S. dollars.
For certainty and notwithstanding any other provision hereof, each
Pledged Subsidiary that is not itself an Obligor shall constitute a
"Significant Material Subsidiary". For certainty, a direct or indirect
Subsidiary of Kinross Canada that satisfies the criteria of paragraph
(a) or (b) above solely by reason of being an intermediate holding
company shall not constitute a "SIGNIFICANT MATERIAL SUBSIDIARY".
"SPOT PRICE" means, on any particular day (a) with respect to a drawdown
of a Gold Loan or a conversion of another availment of credit into a
Gold Loan pursuant to Section 6.1 or 6.3, the weighted average price per
xxxx ounce of Gold for the sale of Gold by the relevant Borrower on such
day pursuant to spot transactions entered into by such Borrower in good
faith with a Lender or any
- 31 -
other Person based on then current market prices in connection with such
drawdown or conversion, and (b) with respect to a conversion of a Gold
Loan into another availment of credit pursuant to Section 6.1 or 6.2,
the weighted average price per xxxx ounce of Gold for the purchase of
Gold by the relevant Borrower pursuant to spot transactions entered into
by such Borrower in good faith with a Lender or any other Person based
on then current market prices in connection with such conversion.
"STRIKE PRICE" means, on any particular day (a) with respect to a
drawdown of a Gold Loan or a conversion of another availment of credit
into a Gold Loan pursuant to Section 6.1 or 6.3, the weighted average
price per xxxx ounce of Gold for the sale of Gold by the relevant
Borrower on such day pursuant to hedging transactions entered into by
such Borrower in good faith with a Lender or any other Person on then
current market prices in connection with such drawdown, conversion or
sale, and (b) with respect to a conversion of a Gold Loan into another
availment of credit pursuant to Section 6.1 or 6.2, the weighted average
price per xxxx ounce of Gold for the purchase of Gold by the relevant
Borrower on such day pursuant to hedging transactions entered into by
such Borrower in good faith with a Lender or any other Person on then
current market prices in connection with such conversion.
"S & P" means Standard & Poor's Ratings Service or any successor by
merger or consolidation to its business.
"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 generally accepted accounting principles, be
classified upon the consolidated balance sheet of Kinross Canada as
goodwill, deferred expenses and other intangible assets. For purposes of
greater certainty, Tangible Net Worth shall include (without
duplication) the Amax Gold Inc. $3.75 Series B convertible preferred
shares in the amount of approximately U.S. $12,600,000 and shall exclude
(x) the redeemable retractable preference shares of Kinross Canada in
the amount of approximately U.S.$3,000,000 and (y) equity in
Non-Recourse Subsidiaries.
- 32 -
"TERMINATION DATE" means the date on which all indebtedness, obligations
and liabilities owing by the Obligors to the Finance Parties or any of
them, or remaining unpaid to the Finance Parties or any of them, under
the Credit Agreement have been satisfied in full and the Credit Facility
has terminated pursuant to Section 2.4.
"TOTAL COMMITMENT AMOUNT" means, at any particular time, the aggregate
of the Individual Commitments of all of the Lenders at such time.
"TOTAL INDEBTEDNESS" means, at any particular time, the aggregate
Indebtedness of Kinross Canada on a consolidated basis. For purposes of
greater certainty, "Total Indebtedness" shall include the redeemable
retractable preference shares of Kinross Canada in the amount of
approximately U.S. $3,000,000.
"TRUE NORTH DEPOSIT" means the real property owned by Fairbanks U.S.
described in Schedule Q of the Existing Credit Agreement, together with
all buildings and structures thereon and appurtenances thereto.
"TVX BRAZIL" or "TVX PARTICIPACOES" means TVX Participacoes Ltda., a
corporation incorporated under the laws of Brazil.
"TVX CAYMAN" means TVX Cayman Inc., a corporation incorporated under the
laws of the Cayman Islands.
"UCC" means the Uniform Commercial Code of the State of Alaska, as
amended.
"UNDEVELOPED PORTION OF THE FORT XXXX MINE" means that portion of the
Fort Xxxx Mine to which no proven and probable recoverable reserves of
gold and silver have been attributed by the Obligors.
"U.S." and "UNITED STATES" means the United States of America.
"U.S. BORROWERS" means Kinross U.S.A., Fairbanks U.S., Round Mountain
and each Additional U.S. Borrower and "U.S. BORROWER" means any of the
U.S. Borrowers.
"U.S. BRANCH OF ACCOUNT" means the Atlanta Agency of the Administrative
Agent located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000, or such other office of the Administrative Agent located
in the United States as Kinross Canada and the Administrative Agent may
agree upon.
"U.S. DOLLAR EQUIVALENT" means the relevant Exchange Equivalent in
United States dollars of any amount of Canadian dollars.
"U.S. LENDERS" means the financial institutions set out and described as
such in Schedule A, as amended from time to time.
- 33 -
"WASTE" means any waste, as defined by EPA.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E or Title IV of ERISA.
1.2 OTHER USAGES
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. 1.3 PLURAL AND SINGULAR
Where the context so requires, words importing the singular number shall
include the plural and vice versa. 1.4 HEADINGS
The division of this agreement into Articles and Sections and the
insertion of headings in this agreement are for convenience of reference only
and shall not affect the construction or interpretation of this agreement.
1.5 CURRENCY
Unless otherwise specified herein, all statements of or references to
dollar amounts in this agreement shall mean lawful money of the United States.
1.6 APPLICABLE LAW
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. Each party irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such party to the address prescribed by Section 15.1, such service to become
effective five Banking Days after such mailing. 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.
1.7 TIME OF THE ESSENCE
Time shall in all respects be of the essence of this agreement.
- 34 -
1.8 NON-BANKING DAYS
Subject to Section 7.4(d), 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.
1.9 CONSENTS AND APPROVALS
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.
1.10 AMOUNT OF CREDIT
Any reference herein to the amount of credit outstanding shall mean, at
any particular time:
(a) in the case of a Prime Rate Loan or a BA Rate Loan, the U.S.
Dollar Equivalent of the principal amount thereof;
(b) in the case of a LIBOR Loan, Base Rate Canada Loan or Base Rate
New York Loan, the principal amount thereof;
(c) in the case of a Gold Loan, the applicable Dollar Loan
Equivalent of the quantity of xxxx ounces of Gold thereof;
(d) in the case of a Bankers' Acceptance, the U.S. Dollar Equivalent
of the face amount thereof; and (e) in the case of a Letter
denominated in U.S. dollars, the contingent liability of the
Issuing Lender thereunder (or, if the Letter is denominated in
Canadian dollars, the U.S. Dollar Equivalent of the contingent
liability of the Issuing Lender thereunder).
For certainty, Section 1.10(c) shall have no application should any Finance
Party seek to prove a claim in bankruptcy or any similar proceeding.
1.11 SCHEDULES
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.
1.12 EXTENSION OF CREDIT
For the purposes hereof, each drawdown, rollover and conversion shall be
deemed to be an extension of credit to the Borrowers hereunder.
- 35 -
1.13 JOINT AND SEVERAL OBLIGATIONS
All obligations hereunder which are stated to be obligations of the
Borrowers or any one of them to the Lenders shall, to the extent permitted by
applicable law, be joint and several obligations of the Borrowers. The
obligation of any Borrower (hereinafter, individually in this sentence, the
"FIRST MENTIONED BORROWER") with respect to its joint and several liability for
the credit extended to the other Borrowers shall not be wholly or partially
satisfied by such first mentioned Borrower repaying the credit extended to such
first mentioned Borrower hereunder. With respect to the joint and several
obligations of the Borrowers, the Lenders shall not be bound to exhaust their
recourse against any Borrower or others or any security or guarantees it may at
any time hold before being entitled to payment from any Borrower and each
Borrower renounces all benefits of discussion and division.
1.14 GOLD
Any reference herein to the delivery of Gold shall, to the extent
applicable, be a reference to xxxx ounces of Gold (rounded upwards to the
nearest multiple of 0.001).
ARTICLE 2
CREDIT FACILITY
2.1 ESTABLISHMENT OF CREDIT FACILITY
Subject to the terms and conditions hereof, the Lenders hereby establish
in favour of the Borrowers a revolving credit facility (the "CREDIT FACILITY")
in the amount of U.S. $225,000,000 (as such amount may be increased pursuant to
Section 2.2(c) or (d) or reduced pursuant to Section 2.4) or the Canadian Dollar
Equivalent thereof, provided that (x) the aggregate amount of outstanding credit
extended to the Canadian Borrowers shall not at any time exceed the lesser of
(i) an amount equal to 80% of the amount of the Credit Facility at such time and
(ii) the aggregate of the Individual Commitments of the Lenders which include
Canadian Lenders at such time and (y) the aggregate amount of credit extended to
the Borrowers by way of Gold Loans shall not at any time exceed the lesser of
(I) U.S. $210,000,000 and (II) an amount equal to 70% of the amount of the
Credit Facility at such time.
2.2 ACCORDION FEATURE
(a) Kinross Canada may, by notice to the Administrative Agent (an
"ACCORDION NOTICE"), from time to time request that the amount
of the Total Commitment Amount be increased by an aggregate
amount of up to U.S. $75,000,000 (in the aggregate for all
Accordion Notices) specifying the Lenders and/or proposed new
Lenders that have agreed to accept Individual Commitments in the
aggregate amount of such requested increase. Promptly following
receipt of an Accordion Notice, the Administrative Agent shall
promptly notify the Bullion Fronting Lender and the Issuing
Lender and shall request each of the Bullion Fronting Lender and
the Issuing Lender to approve such increase.
(b) Promptly following receipt of an Accordion Notice from the
Administrative Agent pursuant to Section 2.2(a), each of the
Bullion Fronting Lender and the
- 36 -
Issuing Lender shall promptly notify the Administrative Agent
whether or not it approves of the increase in the Total
Commitment Amount requested in such Accordion Notice. If either
the Issuing Lender or the Bullion Fronting Lender does not
approve such increase, then no increase in the Total Commitment
Amount shall take place pursuant to this Section 2.2.
(c) Upon receipt of a notice pursuant to Section 2.2(b), each
Accordion Lender that is an existing Lender shall send a
confirming letter to the Administrative Agent confirming that it
has agreed to increase its Individual Commitment and setting out
the amounts of that increase and advising whether it is a
Canadian Lender and/or a U.S. Lender with respect thereto. The
increase in that Accordion Lender's Individual Commitment shall,
subject to Section 2.2(f), take place with effect from the first
Banking Day following the date of the delivery of such notice to
the Administrative Agent. Upon any such increase of that
Accordion Lender's Individual Commitment, Schedule A hereto
shall be deemed to be amended to increase the Individual
Commitment of that Accordion Lender by the amount of such
increase.
(d) Any Accordion Lender that is not an existing Lender must be
acceptable to each of the Administrative Agent and the Issuing
Lender and the Bullion Fronting Lender acting in their
discretion exercised reasonably. Upon delivery to the
Administrative Agent, the Issuing Lender and the Bullion
Fronting Lender of an Accordion Agreement executed by Kinross
Canada and an Accordion Lender that is so acceptable to the
Administrative Agent, the Issuing Lender and the Bullion
Fronting Lender, the Administrative Agent, the Issuing Lender
and the Bullion Fronting Lender shall promptly execute and
deliver such Accordion Agreement whereupon this agreement and
each other Credit Document shall, subject to Section 2.2(f),
henceforth be read and construed as if such Accordion Lender
were party to this agreement as a Lender having all of the
rights and obligations of a Lender expressed herein with respect
to the Individual Commitment that the Accordion Lender has
agreed to accept and all references to any Lenders in any Credit
Document shall (to the extent the context so admits) be
construed accordingly. Consequent thereto, Schedule A hereto
shall be deemed to be amended to add the Individual Commitment
of such Accordion Lender. Each Lender irrevocably appoints,
authorizes and directs the Administrative Agent, as its attorney
and agent, with full power of substitution and delegation, to
complete and execute on its behalf each Accordion Agreement
relating to each Accordion Lender. Each Lender agrees that it
will be bound by the terms of each such Accordion Agreement so
completed and executed by the Administrative Agent. Each
Borrower irrevocably appoints, authorizes and directs Kinross
Canada, as its attorney and agent, with full power of
substitution and delegation, to complete and execute on behalf
of such Borrower an Accordion Agreement relating to each
Accordion Lender. Each Borrower agrees that it shall be bound by
the terms of each such Accordion Agreement so completed and
executed by Kinross Canada.
(e) The Administrative Agent shall promptly notify the Borrowers and
the Lenders of the increased Individual Commitments arising
pursuant to Section 2.2(c) or (d).
- 37 -
(f) No increase in the Total Commitment Amount shall be permitted at
any time that a Default or Event of Default has occurred and is
outstanding.
2.3 LENDERS' COMMITMENTS
Subject to the terms and conditions hereof, the Lenders severally agree
to extend credit to the Borrowers 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 relevant Borrower contemporaneously by all of the relevant Lenders. Each
Lender shall provide to the relevant Borrower its Pro Rata Share of each credit,
whether such credit is extended by way of drawdown, rollover or conversion. 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 relevant 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 such Borrower its
Pro Rata Share of such credit under the Credit Facility.
2.4 REDUCTION OF CREDIT FACILITY
The Borrowers 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 with respect to repayment made in accordance with
Section 9.1. 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. Any repayment of outstanding credit which forms
part of any conversion from one type of credit to another type of credit under
Article 3 or Article 6 or of any rollover under Article 5 shall not cause any
reduction in the amount of the Credit Facility. Upon any reduction of the Credit
Facility (other than pursuant to Section 9.1(b)), the Individual Commitment of
each Lender with respect to the Credit Facility shall thereupon be reduced by an
amount equal to such Lender's Global Pro Rata Share of the amount of such
reduction of the Credit Facility. Upon any reduction of the Credit Facility
pursuant to Section 9.1(b), the Individual Commitment of the relevant
Non-Continuing Lender with respect to the Credit Facility shall thereupon be
reduced by an amount equal to such reduction of the Credit Facility.
2.5 TERMINATION OF 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 2.4; and
- 38 -
(iii) the Maturity Date.
(b) Upon the termination of the Credit Facility, the right of the
Borrowers to obtain any credit thereunder and all of the
obligations of the Lenders to extend credit thereunder shall
automatically terminate.
ARTICLE 3
GENERAL PROVISIONS RELATING TO CREDITS
3.1 TYPES OF CREDIT AVAILMENTS
Subject to the terms and conditions hereof, the Borrowers may obtain
credit under the Credit Facility as follows:
(a) each Canadian Borrower may obtain credit under the Credit
Facility from the Canadian Lenders through the Canadian Branch
of Account by way of one or more Prime Rate Loans, Base Rate
Canada Loans, LIBOR Loans, Gold Loans, Bankers' Acceptances and
Letters; and
(b) each U.S. Borrower may obtain credit under the Credit Facility
from the U.S. Lenders through the U.S. Branch of Account by way
of one or more Base Rate New York Loans, Gold Loans, LIBOR Loans
and U.S. dollar denominated Letters.
Any extension of credit hereunder by way of Prime Rate Loans shall be in a
minimum amount of Cdn. $1,000,000, by way of Base Rate Canada Loans or Base Rate
New York Loans shall be in a minimum amount of U.S. $1,000,000, by way of
Bankers' Acceptance or BA Rate Loan shall be in a minimum amount of Cdn.
$1,000,000, by way of LIBOR Loans shall be in a minimum amount of U.S.
$1,000,000 and by way of Gold Loans shall be in a minimum amount of at least
5,000 xxxx ounces of Gold and in an integral multiple of 1,000 xxxx ounces of
Gold in excess thereof (or any such other minimum amount as may be agreed upon
between the relevant Borrower and the Bullion Fronting Lender).
3.2 FUNDING OF LOANS
Each Lender shall make available to the Administrative Agent its Pro
Rata Share of the principal amount of each Loan (other than a Gold Loan) under
the Credit Facility prior to 11:00 a.m. (Toronto time) on the date of the
extension of credit. Prior to 3:00 p.m. (London time) on the date of any
extension of credit by way of a Gold Loan, the Bullion Lenders (the Bullion
Fronting Lender as to the aggregate of the Pro Rata Shares of the relevant
Non-Bullion Lenders of the number of xxxx ounces of such Gold Loan and each
other Bullion Lender as to its Pro Rata Share of the number of xxxx ounces of
such Gold Loan) shall make available to the Administrative Agent the number of
xxxx ounces of such Gold Loan on such date by crediting to the Administrative
Agent unallocated Gold in a pool account located at The Bank of Nova Scotia,
London, for credit to the unallocated gold account of Scotia Mocatta, Toronto or
New York, as the case may be, or at such other account or location as may be
agreed from time to time between the Lenders and the Administrative Agent, in a
quantity of xxxx ounces equal to such payment. The Administrative Agent shall,
upon fulfilment by the relevant Borrower of the
- 39 -
terms and conditions set forth in Article 12 and unless otherwise irrevocably
authorized and directed in the Drawdown Notice, (x) make such funds available to
such Borrower on the date of the extension of credit by crediting the relevant
Designated Account (or causing such account to be credited) or (y) such Gold
available to such Borrower on the date of the extension of credit by crediting
to such Borrower unallocated Gold with a depository in a pool account specified
by such Borrower, which account shall be located in London, England or at
another location agreed to between the Administrative Agent and such Borrower.
Unless the Administrative Agent has been notified by a Lender at least one
Banking Day prior to the date of the extension of credit that such Lender will
not make available to the Administrative Agent its Pro Rata Share of such Loan,
the Administrative Agent may assume that such Lender has made such portion of
the Loan available to the Administrative Agent on the date of the extension of
credit in accordance with the provisions hereof and the Administrative Agent
may, in reliance upon such assumption, make available to the relevant Borrower
on such date a corresponding amount. If the Administrative Agent has made such
assumption, to the extent such Lender shall not have so made its Pro Rata Share
of the Loan available to the Administrative Agent, such Lender agrees to pay to
the Administrative Agent, forthwith on demand, such Lender's Pro Rata Share of
the Loan and all reasonable costs and expenses incurred by the Administrative
Agent in connection therewith together with interest or Gold Funding Fees, as
applicable, thereon at the then prevailing interbank rate for each day from the
date such amount is made available to the relevant Borrower until the date such
amount is paid or repaid to the Administrative Agent; provided, however, that
notwithstanding such obligation, if such Lender fails so to pay, the relevant
Borrower shall, without prejudice to any rights that such Borrower might have
against such Lender, repay such amount to the Administrative Agent forthwith
after demand therefor by the Administrative Agent. The amount payable by each
Lender to the Administrative Agent pursuant hereto shall be set forth in a
certificate delivered by the Administrative Agent to such Lender and the
relevant Borrower (which certificate shall contain reasonable details of how the
amount payable is calculated) and shall constitute PRIMA FACIE evidence of such
amount payable. If such Lender makes the payment to the Administrative Agent
required herein, the amount so paid shall constitute such Lender's Pro Rata
Share of the Loan for purposes of this agreement and shall entitle the Lender to
all rights and remedies against the relevant Borrower in respect of such Loan.
3.3 FAILURE OF LENDER TO FUND LOAN
If any Lender fails to make available to the Administrative Agent its
Pro Rata Share of any Loan under the Credit Facility as required (such Lender
being herein called the "Defaulting Lender") and the Administrative Agent has
not funded pursuant to Section 3.2, the Administrative Agent shall forthwith
give notice of such failure by the Defaulting Lender to the relevant Borrower
and the other relevant Lenders and such notice shall state that any relevant
Lender may make available to the Administrative Agent all or any portion of the
Defaulting Lender's Pro Rata Share of such Loan (but in no way shall any other
Lender or the Administrative Agent be obliged to do so) in the place and stead
of the Defaulting Lender. If more than one relevant Lender gives notice that it
is prepared to make funds available in the place and stead of a Defaulting
Lender in such circumstances and the aggregate of the funds which such Lenders
(herein collectively called the "Contributing Lenders" and individually called
the "Contributing Lender") are prepared to make available exceeds the amount of
the advance which the Defaulting Lender failed to make, then each Contributing
Lender shall be
- 40 -
deemed to have given notice that it is prepared to make available its pro rata
share of such advance based on the Contributing Lenders' relative commitments to
advance in such circumstances. If any Contributing Lender makes funds available
in the place and stead of a Defaulting Lender in such circumstances, then the
Defaulting Lender shall pay to any Contributing Lender making the funds
available in its place and stead, forthwith on demand, any amount advanced on
its behalf together with interest thereon at the then prevailing interbank rate
for each day from the date of advance to the date of payment, against payment by
the Contributing Lender making the funds available of all interest received in
respect of the Loan from the relevant Borrower. In addition to interest as
aforesaid, the relevant Borrower shall pay all amounts owing by the relevant
Borrower to the Defaulting Lender hereunder (with respect to the amounts
advanced by the Contributing Lenders on behalf of the Defaulting Lender) to the
Contributing Lenders until such time as the Defaulting Lender pays to the
Administrative Agent for the Contributing Lenders all amounts advanced by the
Contributing Lenders on behalf of the Defaulting Lender.
3.4 FUNDING OF BANKERS' ACCEPTANCES
(a) If the Administrative Agent receives from a Canadian Borrower a
Drawdown Notice, Rollover Notice or Conversion Notice requesting
a drawdown of, a rollover of or a conversion into Bankers'
Acceptances, the Administrative Agent shall notify each Canadian
Lender, prior to 11:00 a.m. (Toronto time) on the second Banking
Day prior to the date of such extension of credit of such
request and of each Canadian Lender's Pro Rata Share of such
extension of credit. The Administrative Agent shall also at such
time notify the relevant Borrower of each Canadian Lender's Pro
Rata Share of such extension of credit. Each Canadian Lender
shall, not later than 11:00 a.m. (Toronto time) on the date of
each extension of credit by way of Bankers' Acceptance, accept
drafts of the relevant Borrower which are presented to it for
acceptance and which have an aggregate face amount equal to such
Canadian Lender's Pro Rata Share of the total extension of
credit being made available by way of Bankers' Acceptances on
such date, as advised by the Administrative Agent. Each Canadian
Lender shall purchase the Bankers' Acceptances which it has
accepted for a purchase price equal to the BA Discounted
Proceeds therefor. Each Canadian Lender may at any time and from
time to time hold, sell, rediscount or otherwise dispose of any
and all Bankers' Acceptances accepted and purchased by it.
(b) The relevant Borrower shall provide for payment to the accepting
Canadian Lenders of the face amount of each Bankers' Acceptance
at its maturity, either by payment of such amount or through an
extension of credit hereunder or through a combination of both.
The relevant Borrower hereby waives presentment for payment of
Bankers' Acceptances by the Canadian Lenders and any defence to
payment of amounts due to a Canadian Lender in respect of a
Bankers' Acceptance which might exist by reason of such Bankers'
Acceptance being held at maturity by such Canadian Lender which
accepted it and agrees not to claim from such Canadian Lender
any days of grace for the payment at maturity of Bankers'
Acceptances.
- 41 -
(c) In the case of a drawdown by way of Bankers' Acceptance, each
Canadian Lender shall, forthwith after the acceptance of drafts
of the relevant Borrower as aforesaid, make available to the
Administrative Agent the BA Proceeds with respect to the
Bankers' Acceptances accepted by it. The Administrative Agent
shall, upon fulfilment by the relevant Borrower of the terms and
conditions set forth in Article 12, make such BA Proceeds
available to the relevant Borrower on the date of such extension
of credit by crediting the applicable Designated Account. In the
case of a rollover of or conversion into Bankers' Acceptances,
each Canadian Lender shall retain the Bankers' Acceptance
accepted by it and shall not be required to make any funds
available to the Administrative Agent for deposit to the
applicable Designated Account; however, forthwith after the
acceptance of drafts of the relevant Borrower as aforesaid, the
relevant Borrower shall pay to the Administrative Agent on
behalf of the Canadian Lenders an amount equal to the aggregate
amount of the acceptance fees in respect of such Bankers'
Acceptances calculated in accordance with Section 7.5 plus the
amount by which the aggregate face amount of such Bankers'
Acceptances exceeds the aggregate BA Discounted Proceeds with
respect thereto.
(d) Any Bankers' Acceptance may, at the option of the relevant
Borrower, be executed in advance by or on behalf of the relevant
Borrower, by mechanically reproduced or facsimile signatures of
any two officers of the relevant Borrower who are properly so
designated and authorized by the relevant Borrower from time to
time. Any Bankers' Acceptance so executed and delivered by the
relevant Borrower to the Canadian Lenders shall be valid and
shall bind the relevant Borrower and may be dealt with by the
Canadian Lenders to all intents and purposes as if the Bankers'
Acceptance had been signed in the executing officers' own
handwriting.
(e) Each relevant Borrower shall notify the Canadian Lenders as to
those officers whose signatures may be reproduced and used to
execute Bankers' Acceptances in the manner provided in Section
3.4(d). Bankers' Acceptances with the mechanically reproduced or
facsimile signatures of designated officers may be used by the
Canadian Lenders and shall continue to be valid, notwithstanding
the death, termination of employment or termination of
authorization of either or both of such officers or any other
circumstance.
(f) The Borrowers hereby indemnify and agree to hold harmless the
Canadian Lenders against and from all losses, damages, expenses
and other liabilities caused by or attributable to the use of
the mechanically reproduced or facsimile signature instead of
the original signature of an authorized officer of a Canadian
Borrower on a Banker's Acceptance prepared, executed, issued and
accepted pursuant to this agreement, except to the extent
determined by a court of competent jurisdiction to be due to the
gross negligence or wilful misconduct of the Canadian Lenders.
(g) Each Canadian Lender agrees that, in respect of the safekeeping
of executed drafts of the Canadian Borrowers which are delivered
to it for acceptance
- 42 -
hereunder, it shall exercise the same degree of care which it
gives to its own property, provided that it shall not be deemed
to be an insurer thereof.
(h) All Bankers' Acceptances to be accepted by a particular Canadian
Lender shall, at the option of such Canadian Lender, be issued
in the form of depository bills made payable originally to and
deposited with The Canadian Depository for Securities Limited
pursuant to the DEPOSITORY BILLS AND NOTES ACT (Canada).
(i) In order to facilitate the issuance of Bankers' Acceptances
pursuant to this agreement, each Canadian Borrower hereby
authorizes each Canadian Lender, and appoints each Canadian
Lender as such Borrower's attorney, to complete, sign and
endorse drafts or depository bills (each such executed draft or
xxxx being herein referred to as a "BA Draft" on its behalf in
handwritten form or by facsimile or mechanical signature or
otherwise in accordance with the applicable Drawdown Notice,
Rollover Notice or Conversion Notice and, once so completed,
signed and endorsed to accept them as Bankers' Acceptances under
this agreement and then if applicable, purchase, discount or
negotiate such Bankers' Acceptances in accordance with the
provisions of this agreement. BA Drafts so completed, signed,
endorsed and negotiated on behalf of such Borrower by such
Lender shall bind such Borrower as fully and effectively as if
so performed by an authorized officer of such Borrower. Each
draft of a Bankers' Acceptance completed, signed or endorsed by
a Canadian Lender shall mature on the last day of the term
thereof.
3.5 BA RATE LOANS
If, in the sole judgement of a Canadian Lender, such Canadian Lender is
unable to extend credit by way of Bankers' Acceptances in accordance with this
agreement, such Canadian Lender shall give an irrevocable notice to such effect
to the Administrative Agent and the relevant Canadian Borrower prior to 10:00
a.m. (Toronto time) on the date of the requested credit extension and shall make
available to such Canadian Borrower prior to 11:00 a.m. (Toronto time) on the
date of such requested credit extension a Canadian dollar loan (a "BA Rate
Loan") in the principal amount equal to such Canadian Lender's Pro Rata Share of
the total credit to be extended by way of Bankers' Acceptances, such BA Rate
Loan to be funded in the same manner as a Loan (other than a Gold Loan) is
funded pursuant to Section 3.2 and 3.3. Such BA Rate Loan shall have the same
term as the Bankers' Acceptances for which it is a substitute and shall bear
such rate of interest per annum throughout the term thereof as shall permit such
Canadian Lender to obtain the same effective rate as if such Canadian Lender had
accepted and purchased a Bankers' Acceptance at the same acceptance fee and
pricing at which a Schedule II Lender would have accepted and purchased such
Bankers' Acceptance at approximately 11:00 a.m. (Toronto time) on the date such
BA Rate Loan is made, on the basis that, and each Canadian Borrower hereby
agrees that, for such a BA Rate Loan, interest shall be payable in advance on
the date of the extension of credit by the relevant Canadian Lender deducting
the interest payable in respect thereof from the principal amount of such BA
Rate Loan. All BA Rate Loans to be made by a particular Canadian Lender shall,
at the option of such Canadian Lender, be evidenced by a promissory note in the
form of a depository note made payable
- 43 -
originally to and deposited with The Canadian Depository for Securities Limited
pursuant to the DEPOSITORY BILLS AND NOTES ACT (Canada).
3.6 GENERAL PROVISIONS RELATING TO GOLD LOANS
(a) Each Lender (including, for certainty, the Bullion Lenders) will
assume all risk of loss of, or damage to, any Gold to be
delivered by such Lender to the relevant Borrower until it has
been delivered to the Administrative Agent or to its order at a
mutually agreed upon location. From the time of receipt by the
relevant Borrower of any Gold from any Lender (including, for
certainty, the Bullion Lenders) until an equal quantity of xxxx
ounces of Gold is returned to such Lender, such Lender will
assume no risk of loss, theft, detention of, or damage to such
Gold.
(b) The Borrowers make no representations or warranties whatsoever
with respect to Gold constituting any payment of any Gold Loan
or Gold Funding Fees except that such Gold shall be acceptable
as "London good delivery" in accordance with the practices of
the LBMA.
(c) The Lenders (including, for certainty, the Bullion Lenders) make
no representations or warranties whatsoever with respect to Gold
constituting any Gold Loan except that such Gold shall be
acceptable as "London good delivery" in accordance with the
practices of the LBMA.
(d) Each relevant Non-Bullion Lender shall immediately on demand
indemnify the Bullion Fronting Lender to the extent of such
Non-Bullion Lenders' Pro Rata Share of any amount paid or
liability incurred by the Bullion Fronting Lender under each
Gold Loan extended by it. Without limiting the preceding
sentence in any way whatsoever, (i) if an Event of Default
occurs or (ii) if the Bullion Fronting Lender so requires, and
there is then outstanding any Gold Loan, then, effective on the
day of notice to that effect from the Bullion Fronting Lender to
the relevant Non-Bullion Lenders, each relevant Non-Bullion
Lender shall forthwith on the day of receipt of such notice
disburse to the Bullion Fronting Lender its Pro Rata Share of
such Gold Loan. For certainty, it is hereby acknowledged and
agreed that each Non-Bullion Lender shall be obligated to
disburse to the Bullion Fronting Lender such Non-Bullion
Lender's Pro Rata Share of any Gold Loan referenced herein
irrespective of whether a Default or Event of Default is then
continuing.
(e) For certainty, the obligations in Section 3.6(d) shall continue
as obligations of the Persons who were Non-Bullion Lenders at
the time each such Gold Loan was extended by the Bullion
Fronting Lender notwithstanding that such Lender may assign its
rights and obligations hereunder, unless the Bullion Fronting
Lender specifically releases such Lender from such obligations
in writing or consents to such assignment pursuant to Section
15.5(c).
- 44 -
(f) Subject to Section 5.3, the Borrower shall repay the full amount
of each Gold Loan on the last day of the Gold Funding Period
with respect thereto.
3.7 TIMING OF CREDIT AVAILMENTS
No Bankers' Acceptance, BA Rate Loan, LIBOR Loan or Gold Loan under the
Credit Facility may have a maturity date later than the Maturity Date.
3.8 INABILITY TO FUND U.S. DOLLAR ADVANCES IN CANADA
If a Canadian Lender determines in good faith, which determination shall
be final, conclusive and binding on the Canadian Borrowers, and the
Administrative Agent notifies the Canadian Borrowers that (i) by reason of
circumstances affecting financial markets inside or outside Canada, deposits of
United States dollars are unavailable to such Canadian Lender in Canada, (ii)
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided in the definition of LIBOR or Alternate Base Rate
Canada, as the case may be, (iii) the making or continuation of United States
dollar advances in Canada has been made impracticable by the occurrence of a
contingency (other than a mere increase in rates payable by such Canadian Lender
to fund the advance) which materially and adversely affects the funding of the
advances at any interest rate computed on the basis of the LIBOR or the
Alternate Base Rate Canada, as the case may be, or by reason of a change in any
applicable law or government regulation, guideline or order (whether or not
having the force of law but, if not having the force of law, one with which a
responsible Canadian chartered bank would comply) or in the interpretation
thereof by any Official Body affecting such Canadian Lender or any relevant
financial market, which results in LIBOR or the Alternative Base Rate Canada, as
the case may be, no longer representing the effective cost to such Canadian
Lender of deposits in such market for a relevant Interest Period, or (iv) any
change to present law or any future law, regulation, order, treaty or official
directive (whether or not having the force of law but, if not having the force
of law, one with which a responsible Canadian chartered bank would comply) or
any change therein or any interpretation or application thereof by any Official
Body has made it unlawful for such Canadian Lender to make or maintain or give
effect to its obligations in respect of United States dollar advances in Canada
as contemplated herein, then
(a) the right of the Canadian Borrowers to obtain any affected Base
Rate Canada Loan or LIBOR Loan from such Canadian Lender shall
be suspended until such Canadian Lender determines that the
circumstances causing such suspension no longer exist and such
Canadian Lender so notifies the Canadian Borrowers;
(b) if any affected Base Rate Canada Loan or LIBOR Loan is not yet
outstanding, any applicable Drawdown Notice shall be cancelled
and the advance requested therein shall not be made;
(c) if any LIBOR Loan is already outstanding at any time when the
right of the Canadian Borrowers to obtain credit by way of a
LIBOR Loan is suspended, it shall, subject to the Canadian
Borrowers having the right to obtain credit by way of a Base
Rate Canada Loan at such time, be converted on the last day of
the Interest Period applicable thereto (or on such earlier date
as may be required to
- 45 -
comply with any applicable law) to a Base Rate Canada Loan in
the principal amount equal to the principal amount of the LIBOR
Loan or, if the Canadian Borrowers do not have the right to
obtain credit by way of a Base Rate Canada Loan at such time,
such LIBOR Loan shall be converted on the last day of the
Interest Period applicable thereto (or on such earlier date as
may be required to comply with any applicable law) to a Prime
Rate Loan in the principal amount equal to the Canadian Dollar
Equivalent of the principal amount of such LIBOR Loan; and
(d) if any Base Rate Canada Loan is already outstanding at any time
when the right of the Canadian Borrowers to obtain credit by way
of a Base Rate Canada Loan is suspended, it shall, subject to
the Canadian Borrowers having the right to obtain credit by way
of a LIBOR Loan at such time, be immediately converted to a
LIBOR Loan in the principal amount equal to the principal amount
of the Base Rate Canada Loan and having an Interest Period of
one month or, if the Canadian Borrowers do not have the right to
obtain credit by way of a LIBOR Loan at such time, it shall be
immediately converted to a Prime Rate Loan in the principal
amount equal to the Canadian Dollar Equivalent of the principal
amount of the Base Rate Canada Loan.
3.9 INABILITY TO FUND LIBOR LOAN IN THE UNITED STATES
If a U.S. Lender determines in good faith, which determination shall be
final, conclusive and binding on the U.S. Borrowers, and the Administrative
Agent notifies the U.S. Borrowers that (i) adequate and fair means do not exist
for ascertaining the interest rate on the basis provided in the definition of
LIBOR, (ii) the making or continuation of LIBOR Loans in the United States has
been made impracticable by the occurrence of a contingency (other than a mere
increase in rates payable by such U.S. Lender to fund the advance) which
materially and adversely affects the funding of the advances at any interest
rate computed on the basis of LIBOR, or by reason of a change since the date
hereof in any applicable law or government regulation, guideline or order
(whether or not having the force of law but, if not having the force of law, one
with which a responsible U.S. commercial bank would comply) or in the
interpretation thereof by any Official Body affecting such U.S. Lender or any
relevant financial market, which results in LIBOR no longer representing the
effective cost to such Lender of deposits in such market for a relevant Interest
Period, or (iii) any change to present law or any future law, regulation, order,
treaty or official directive (whether or not having the force of law but, if not
having the force of law, one with which a responsible U.S. commercial bank would
comply) or any change therein or any interpretation or application thereof by
any Official Body has made it unlawful for such U.S. Lender to make or maintain
or give effect to its obligations in respect of LIBOR Loans in the United States
as contemplated herein, then
(a) the right of the U.S. Borrowers to obtain any credit in United States
dollars by way of LIBOR Loans, shall be suspended until such U.S. Lender
determines, acting reasonably, that the circumstances causing such
suspension no longer exist and such U.S. Lender so notifies the U.S.
Borrowers;
- 46 -
(b) if any credit in United States dollars by way of LIBOR Loans is not yet
outstanding, any applicable Drawdown Notice shall be cancelled and the
advance requested therein shall not be made; and
(c) if any LIBOR Loan is already outstanding at any time when the right of
the U.S. Borrowers to obtain credit by way of a LIBOR Loan is suspended,
it shall, subject to the U.S. Borrowers having the right to obtain
credit by way of a U.S. Base Rate Loan at such time, be converted to a
U.S. Base Rate Loan on the last day of the Interest Period applicable
thereto (or on such earlier date as may be required to comply with any
applicable law).
In the event that any of the events listed above results in a limitation of the
amount of loans made by such U.S. Lender which can bear interest at LIBOR or the
amount of LIBOR Loans which such U.S. Lender can make in the United States, such
U.S. Lender agrees to use good faith to allocate, in reasonable fashion, the
available amounts amongst its borrowers as is reasonably practicable.
3.10 INABILITY TO FUND GOLD LOANS
If, at any time, any Lender (including, for certainty, the Bullion
Lenders) determines in good faith (which determination shall be conclusive) that
such Lender is unable to make available any part of any Gold Loan and such
failure is caused directly by the lack of availability of Gold on the London,
New York or Zurich gold bullion markets, or force majeure, then such Lender may,
by notice thereof to the relevant Borrower through the Administrative Agent,
declare that, to the extent that such Gold Loan is unavailable, the obligations
of such Lender to make such Gold Loan, or any part thereof, to the relevant
Borrower hereunder shall be so terminated forthwith. Any Lender giving notice as
aforesaid shall furnish to the relevant Borrower a written explanation as to the
grounds for giving such notice.
3.11 TIME AND PLACE OF PAYMENTS
(a) Unless otherwise expressly provided herein, the Borrowers shall
make all payments (other than payments required or permitted to
be made by the relevant Borrower in Gold) pursuant to this
agreement or pursuant to any document, instrument or agreement
delivered pursuant hereto by deposit to the applicable
Designated Account before 12:00 noon (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.
(b) In the case of any payment required or permitted to be made by
the relevant Borrower in Gold hereunder, payment shall be made
by crediting to the Administrative Agent not later than 3:00
p.m. (London time) on the date on which such payment shall
become due, unallocated Gold in a pool account located at The
Bank of Nova Scotia, London, for credit to the unallocated gold
account of Scotia Mocatta, Toronto or New York, as the case may
be, or at such other account number or location as may be agreed
from time to time between the
- 47 -
relevant Borrower and the Bullion Fronting Lender, in a quantity
of xxxx ounces equal to such 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 account on the day specified for payment.
3.12 REMITTANCE OF PAYMENTS
Forthwith after the withdrawal from the applicable Designated Account
or, in the case of payment in Gold, from the aforesaid pool account, by the
Administrative Agent of any payment of principal, interest, fees or other
amounts for the benefit of the relevant Lenders pursuant to Section 3.11, the
Administrative Agent shall, subject to Sections 3.3 and 8.3 remit to each
relevant Lender, in immediately available funds or Gold, such Lender's Pro Rata
Share of such payment (except (x) to the extent such payment results from a Loan
with respect to which a Lender had failed, pursuant to Section 3.2, to make
available to the Administrative Agent its Pro Rata Share and, where any other
Lender has made funds available in the place and stead of a Defaulting Lender
and (y) with respect to payments pursuant to Section 7.6, which payments shall
be allocated based upon the credit advanced by each Lender); provided that if
the Administrative Agent, on the assumption that it will receive, on any
particular date, a payment of principal (including, without limitation, a
prepayment), interest, fees or other amount under the Credit Facility, remits to
each relevant Lender its Pro Rata Share of such payment and the relevant
Borrower fails to make such payment, each relevant Lender agrees to repay to the
Administrative Agent, forthwith on demand, to the extent that such amount is not
recovered from the relevant Borrower on demand and after reasonable efforts by
the Administrative Agent to collect such amount (without in any way obligating
the Administrative Agent to take any legal action with respect to such
collection), such Lender's Pro Rata Share of the payment made to it pursuant
hereto together with interest thereon at the then prevailing interbank rate for
each day from the date such amount is remitted to the relevant Lenders until the
date such amount is paid or repaid to the Administrative Agent, the exact amount
of the repayment required to be made by the relevant Lenders pursuant hereto to
be as set forth in a certificate delivered by the Administrative Agent to each
relevant Lender, which certificate shall constitute prima facie evidence of such
amount of repayment. Notwithstanding the foregoing, with respect to any standby
fees paid to the Administrative Agent for the benefit of the U.S. Lenders
pursuant to Section 7.6, the Pro Rata Share with respect to each U.S. Lender
which has a related Canadian Lender shall be calculated on the basis that (i)
such Lender's Individual Commitment shall be the amount of such Lender's
Individual Commitment otherwise determined hereunder less the amount of
outstanding credit extended to the Canadian Borrowers hereunder by the related
Canadian Lender and (ii) the Total Commitment Amount shall be adjusted
accordingly.
3.13 EVIDENCE OF INDEBTEDNESS
The Administrative Agent shall maintain accounts wherein the
Administrative Agent shall record the amount of credit outstanding, each payment
of principal and interest on account of each Loan, each Bankers' Acceptance
accepted and cancelled, 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 acceptance fees, Gold Funding Fees, 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 Borrowers pursuant to
this agreement.
- 48 -
3.14 GENERAL PROVISIONS RELATING TO ALL LETTERS
(a) Each relevant Borrower hereby acknowledges and confirms to the
Issuing Lender that the Issuing Lender shall not be obliged 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 such
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 obliged 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 each relevant
Borrower unconditionally assumes all risks with respect to the
same. Each relevant 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 each relevant 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, defense or other
rights which such 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 or entity;
(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;
- 49 -
(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 each relevant 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
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 relevant Borrower and shall not place the
Issuing Lender or any of its correspondents under any resulting
liability to such Borrower. Without limiting the generality of
the foregoing, the Issuing Lender and its correspondents 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. Each
relevant Borrower covenants that it will not take any steps,
issue any instructions to the Issuing Lender or any of its
correspondents or institute any proceedings intended to derogate
from the right or ability of the Issuing Lender or its
correspondents to honour and pay any Draft or Drafts.
(e) Each relevant 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) The Uniform Customs and Practice for Documentary Credits as most
recently published by the International Chamber of Commerce (the
"UCP") shall in all respects apply to each Letter and shall be
deemed for such purpose to be a part hereof as if fully
incorporated herein. In the event of any conflict between the
UCP and the laws of any jurisdiction specified in the relevant
Letter, the UCP shall prevail to the extent necessary to remove
the conflict.
3.15 NOTICE PERIODS
Each Drawdown Notice, Rollover Notice, Conversion Notice and Prepayment
Notice shall be given to the Administrative Agent:
- 50 -
(a) prior to 10:00 a.m. (Toronto time) on the third Banking Day
prior to the date of any voluntary prepayment or the date of a
drawdown of, rollover of, conversion into or conversion of a
Bankers' Acceptance, LIBOR Loan, Gold Loan or the issuance of a
Letter; and
(b) prior to 10:00 a.m. (Toronto time) on the second Banking Day
prior to the date of any other drawdown, rollover or conversion.
3.16 ADMINISTRATIVE AGENT'S DISCRETION TO ALLOCATE
Notwithstanding the provisions of Section 3.2, 3.4(a) and 9.5(b) with
respect to the funding of Loans and Bankers' Acceptances and reimbursing with
respect to Letters in accordance with each relevant Lender's Pro Rata Share, the
Administrative Agent shall be entitled to reallocate the funding or
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 hereunder by all of the
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.
ARTICLE 4
DRAWDOWNS
4.1 DRAWDOWN NOTICE
Subject to Sections 3.1, 3.8, 3.9 and 3.10 provided that all of the
applicable conditions precedent set forth in Article 12 have been fulfilled by
the Borrowers or waived by the relevant Lenders as provided in Section 14.14,
any Borrower may, from time to time, obtain credit hereunder by giving to the
Administrative Agent an irrevocable notice in substantially the form of Schedule
E hereto ("DRAWDOWN NOTICE") in accordance with Section 3.15 and specifying
(a) the applicable Borrower;
(b) the date the credit is to be obtained;
(c) whether the credit is to be obtained by way of Prime Rate Loan,
Base Rate Canada Loan, Base Rate New York Loan, LIBOR Loan, Gold
Loan, Bankers' Acceptance or Letter;
(d) in the case of any credit to be obtained by way of a Loan, the
principal amount of the Loan;
(e) if the credit is to be obtained by way of LIBOR Loan, the
applicable Interest Period;
(f) if the credit is to be obtained by way of Gold Loan, the
applicable Gold Funding Period, whether Gold Funding Fees are to
be payable in U.S. dollars or Gold and,
- 51 -
if the Gold Funding Fees are to be payable in U.S. dollars, the
manner of calculating such Gold Funding Fees;
(g) if the credit is to be obtained by way of Bankers' Acceptances,
the aggregate face amount of the Bankers' Acceptances to be
issued and the term of the Bankers' Acceptances;
(h) if the credit is to be obtained by way of Letter, the named
beneficiary of the Letter, the maturity date and amount of the
Letter, the currency in which the Letter is to be denominated
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 Subsidiary of the
applicable Borrower as well as on behalf of the applicable
Borrower, the name of such Subsidiary); and
(i) the details of any irrevocable authorization and direction
pursuant to Section 3.2.
If credit is to be obtained by way of Letter and if such Letter is to be issued
on behalf of a Subsidiary of the applicable Borrower as well as on behalf of the
applicable Borrower, such Borrower shall ensure that accompanying such Drawdown
Notice is an instrument, substantially in the form of Schedule I 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
ROLLOVERS
5.1 BANKERS' ACCEPTANCES
Provided that the relevant Canadian Borrower has, by giving notice to
the Administrative Agent in accordance with Section 5.4, requested the Canadian
Lenders to accept its drafts to replace all or a portion of outstanding Bankers'
Acceptances as they mature, each Canadian Lender shall, on the maturity of such
Bankers' Acceptances and concurrent with the payment by the relevant Canadian
Borrower to such Canadian Lender of the face amount of such Bankers' Acceptances
or the portion thereof to be replaced, accept the relevant Canadian Borrower's
draft or drafts having an aggregate face amount equal to its Pro Rata Share of
the aggregate face amount of the matured Bankers' Acceptances or the portion
thereof to be replaced in accordance with Section 3.4.
5.2 LIBOR LOANS
Subject to Sections 3.8 and 3.9 and provided that the relevant Borrower
has, by giving notice to the Administrative Agent in accordance with Section
5.4, requested the relevant Lenders to continue to extend credit by way of a
LIBOR Loan to replace all or a portion of an outstanding LIBOR Loan as it
matures, each relevant Lender shall, on the maturity of such LIBOR Loan,
continue to extend credit to such Borrower by way of a LIBOR Loan (without a
further advance of funds to such Borrower) in the principal amount equal to such
Lender's Pro Rata Share of the principal amount of the matured LIBOR Loan or the
portion thereof to be replaced.
- 52 -
5.3 GOLD LOANS
Provided that the relevant Borrower has, by giving notice to the
Administrative Agent in accordance with Section 5.4, requested the Bullion
Lenders to continue to extend credit by way of a Gold Loan to replace all or a
portion of an outstanding Gold Loan as it matures, the Bullion Lenders shall, on
the maturity of such Gold Loan, continue to extend credit to such Borrower by
way of a Gold Loan (without a further advance of Gold to such Borrower) in the
principal amount equal to such Lender's Pro Rata Share of the number of xxxx
ounces of the matured Gold Loan or the portion thereof to be replaced.
5.4 ROLLOVER NOTICE
The notice to be given to the Administrative Agent pursuant to Section
5.1, 5.2 or 5.3 ("ROLLOVER NOTICE") shall be irrevocable, shall be given in
accordance with Section 3.15, shall be in substantially the form of Schedule F
hereto and shall specify:
(a) the applicable Borrower;
(b) the maturity date of the maturing Bankers' Acceptances or the
maturing LIBOR Loan, as the case may be;
(c) the face amount of the maturing Bankers' Acceptances or the
principal amount of the maturing LIBOR Loan, as the case may be,
and the portion thereof to be replaced;
(d) in the case of a maturing LIBOR Loan, the Interest Period or
Interest Periods of the replacement LIBOR Loans;
(e) in the case of maturing Bankers' Acceptances, the aggregate face
amount of the new Bankers' Acceptances to be issued and the term
of the new Bankers' Acceptances; and
(f) in the case of a maturing Gold Loan, the Gold Funding Period of
the replacement Gold Loan, whether the Gold Funding Fees are to
be payable in U.S. dollars or Gold and, if the Gold Funding Fees
are to be paid in U.S. dollars, the manner of calculating such
Gold Funding Fees.
ARTICLE 6
CONVERSIONS
6.1 CONVERTING LOAN TO OTHER TYPE OF LOAN
Subject to Sections 3.1, 3.7 and 3.8 and provided that the relevant
Borrower has, by giving notice to the Administrative Agent in accordance with
Section 6.4, requested the relevant Lenders to convert all or a portion of an
outstanding Loan (other than a BA Rate Loan) into another type of Loan (other
than a BA Rate Loan), each relevant Lender shall, on the date of conversion
(which, in the case of the conversion of all or a portion of an outstanding
LIBOR Loan or Gold Loan, shall be the date on which such Loan matures), continue
to extend credit to
- 53 -
such Borrower by way of the type of Loan into which the outstanding Loan or a
portion thereof is converted (with a repayment and a subsequent advance of funds
to such Borrower) in the aggregate principal amount equal to such Lender's Pro
Rata Share of the principal amount or the Exchange Equivalent, Gold Loan
Equivalent or Dollar Loan Equivalent of the principal amount, as the case may
be, of the outstanding Loan or the portion thereof which is being converted.
6.2 CONVERTING LOAN TO BANKERS' ACCEPTANCES
Provided that the relevant Canadian Borrower has, by giving notice to
the Administrative Agent in accordance with Section 6.4, requested the Canadian
Lenders to accept its drafts to replace all or a portion of an outstanding Loan
and, if a LIBOR Loan, a Gold Loan or a BA Rate Loan is to be replaced the date
of conversion is the date on which such Loan matures, each Canadian Lender
shall, on the date of conversion and concurrent with the payment by the relevant
Canadian Borrower to each Canadian Lender of the principal amount of such
outstanding Loan or the portion thereof which is being converted, accept the
relevant Canadian Borrower's draft or drafts having an aggregate face amount
equal to its Pro Rata Share of the aggregate principal amount of such Loan or
the portion thereof which is being converted or the Canadian Dollar Equivalent
or Dollar Loan Equivalent thereof, as the case may be, such acceptance to be in
accordance with Section 3.4.
6.3 CONVERTING BANKERS' ACCEPTANCES TO LOAN
Each Canadian Lender shall, on the maturity date of a Bankers'
Acceptance which such Canadian Lender has accepted, pay to the holder thereof
the face amount of such Bankers' Acceptance. Subject to Sections 3.1, 3.7 and
3.8 and provided that the relevant Canadian Borrower has, by giving notice to
the Administrative Agent in accordance with Section 6.4, requested the Canadian
Lenders to convert all or a portion of outstanding maturing Bankers' Acceptances
into a Loan, each Canadian Lender shall, upon the maturity date of such Bankers'
Acceptances and the payment by such Canadian Lender to the holders of such
Bankers' Acceptances of the aggregate face amount thereof and concurrent with
the payment by the relevant Canadian Borrower to such Canadian Lender of the
aggregate face amount of such Bankers' Acceptances, extend credit to the
relevant Canadian Borrower by way of the Loan into which the matured Bankers'
Acceptances or a portion thereof are converted in the aggregate principal amount
equal to its Pro Rata Share of the aggregate face amount or the U.S. Dollar
Equivalent or the Gold Loan Equivalent of the aggregate face amount, as the case
may be, of the matured Bankers' Acceptances or the portion thereof which are
being converted. Where a particular Canadian Lender has funded the relevant
Canadian Borrower by way of a BA Rate Loan rather than by way of Bankers'
Acceptances, the provisions of this Section 6.3 as they relate to Bankers'
Acceptances shall apply mutatis mutandis to such BA Rate Loan.
6.4 CONVERSION NOTICE
The notice to be given to the Administrative Agent pursuant to Section
6.1, 6.2 or 6.3 ("CONVERSION NOTICE") shall be irrevocable, shall be given in
accordance with Section 3.13, shall be in substantially the form of Schedule G
hereto and shall specify:
(a) the applicable Borrower;
- 54 -
(b) whether an outstanding Loan or Bankers' Acceptances are to be
converted and, if an outstanding Loan is to be converted, the
type of Loan to be converted;
(c) the date on which the conversion is to take place;
(d) the face amount of the Bankers' Acceptances or the portion
thereof which is to be converted or the principal amount of the
Loan or the portion thereof which is to be converted;
(e) the type and amount of the Loan or Bankers' Acceptances into
which the outstanding Loan or Bankers' Acceptances are to be
converted;
(f) if an outstanding Loan or Bankers' Acceptances are to be
converted into a LIBOR Loan, the applicable Interest Period;
(g) if any outstanding Loan or Bankers' Acceptances are to be
converted into a Gold Loan, the applicable Gold Funding Period
,whether the Gold Funding Fees are to be payable in U.S. dollars
or Gold and, if the Gold Funding Fees are to be paid in U.S.
dollars, the manner of calculating such Gold Funding Fees; and
(h) if an outstanding Loan is to be converted into Bankers'
Acceptances, the aggregate face amount of the new Bankers'
Acceptances to be issued and the term of the new Bankers'
Acceptances.
6.5 ABSENCE OF NOTICE
Subject to Sections 3.8 and 3.9, in the absence of a Rollover Notice or
Conversion Notice within the appropriate time periods referred to herein, a
maturing LIBOR Loan in favour of a Canadian Borrower shall be automatically
converted to a Base Rate Canada Loan, a maturing LIBOR Loan in favour of a U.S.
Borrower shall automatically be converted to a Base Rate New York Loan, a
maturing Gold Loan shall be automatically rolled over to a Gold Loan with a Gold
Funding Period of one month and with the same payment characteristics of the
maturing Gold Loan and a maturing Bankers' Acceptance or BA Rate Loan shall be
automatically converted to a Prime Rate Loan as though a notice to such effect
had been given in accordance with Section 6.4.
6.6 CONVERSION BY LENDERS
Upon written notice to such effect to the relevant Borrower at such time
as a Default has occurred and is continuing, the Administrative Agent may, on
the maturity date of a Bankers' Acceptance, BA Rate Loan, a LIBOR Loan or a Gold
Loan, convert such Bankers' Acceptance or BA Rate Loan into a Prime Rate Loan,
convert such LIBOR Loan in favour of a Canadian Borrower into a Base Rate Canada
Loan, convert such LIBOR Loan in favour of a U.S. Borrower into a Base Rate New
York Loan, convert such Gold Loan in favour of a Canadian Borrower into a Base
Rate Canada Loan and convert such Gold Loan in favour of a U.S. Borrower into a
Base Rate New York Loan, as though a notice to such effect had been given in
accordance with Section 6.4.
- 55 -
ARTICLE 7
INTEREST AND FEES
7.1 INTEREST RATES AND GOLD FUNDING FEES
The Borrowers shall pay to the relevant Lenders, in accordance with
Section 3.11, interest or Gold Funding Fees, as the case may be, on the
outstanding principal amount from time to time of each Loan (other than a BA
Rate Loan) and on overdue interest or Gold Funding Fees thereon, at the rate per
annum equal to:
(i) in the case of each Prime Rate Loan, the Prime Rate plus
the Applicable Rate;
(ii) in the case of each Base Rate Canada Loan, the Alternate
Base Rate Canada plus the Applicable Rate;
(iii) in the case of each Base Rate New York Loan, the
Alternate Base Rate New York plus the Applicable Rate;
(iv) in the case of each LIBOR Loan in favour of a Canadian
Borrower, LIBOR plus the Applicable Rate;
(v) in the case of each LIBOR Loan in favour of a U.S.
Borrower, LIBOR (Reserve Adjusted) plus the Applicable
Rate; and
(vi) in the case of each Gold Loan, the Gold Funding Rate
plus the Applicable Rate.
7.2 CALCULATION AND PAYMENT OF INTEREST AND GOLD FUNDING FEES
(a) Interest on the outstanding principal amount from time to time
of each Prime Rate Loan and Base Rate Canada Loan and on overdue
interest thereon shall accrue from day to day from and including
the date on which credit is obtained by way of such Loan or on
which such overdue interest is due, as the case may be, to but
excluding the date on which such Loan or overdue interest, as
the case may be, is repaid in full (both before and after
maturity and as well after as before judgment) and shall be
calculated on the basis of the actual number of days elapsed
divided by 365.
(b) Interest or Gold Funding Fees, as the case may be, on the
outstanding principal amount from time to time of each LIBOR
Loan and Base Rate New York Loan and on overdue interest or Gold
Funding Fees thereon shall accrue from day to day from and
including the date on which credit is obtained by way of such
Loan or on which such overdue interest or Gold Funding Fees is
due, as the case may be, to but excluding the date on which such
Loan or overdue interest or Gold Funding Fees, as the case may
be, is repaid in full (both before and after maturity and as
well after as before judgment) and shall be calculated on the
basis of the actual number of days elapsed divided by 360.
- 56 -
(c) Accrued interest or Gold Funding Fees shall be paid,
(i) in the case of interest on Prime Rate Loans, Base Rate
Canada Loans and Base Rate New York Loans, monthly in
arrears on the 22nd day of each calendar month; and
(ii) in the case of interest or Gold Funding Fees on LIBOR
Loans or Gold Loans, on the last day of the applicable
Interest Period or Gold Funding Periods; provided that,
in the case of Interest Periods or Gold Funding Periods
of a duration longer than three months, accrued interest
shall be paid no less frequently than every three months
from the first day of such Interest Period or Gold
Funding Period during the term of such Interest Period
or Gold Funding Period and on the date on which such
LIBOR Loans or Gold Loans are otherwise required to be
repaid.
7.3 GENERAL INTEREST RULES
(a) For the purposes hereof, whenever interest or Gold Funding Fees
is calculated on the basis of a year of 360 or 365 days, each
rate of interest or Gold Funding Fees 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 360 or 365 days, respectively.
(b) Interest on each Loan (other than a Gold Loan) and on overdue
interest thereon shall be payable in the currency in which such
Loan (other than a Gold Loan) is denominated during the relevant
period. Gold Funding Fees on each Gold Loan and on overdue Gold
Funding Fees thereon shall be payable in U.S. dollars or Gold,
as selected by the relevant Borrower in the applicable Drawdown
Notice, Rollover Notice or Conversion Notice.
(c) If a Borrower fails to pay any fee or other amount of any nature
payable by it to the Administrative Agent or the Lenders
hereunder (other than principal, interest or Gold Funding Fees)
or under any document, instrument or agreement delivered
pursuant hereto on the due date therefor, such Borrower shall
pay to the Administrative Agent or the relevant Lenders, as the
case may be, 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:
(i) the Alternate Base Rate Canada plus 3% in the case of overdue
amounts denominated in U.S. dollars; and (ii) the Prime Rate
plus 3% in the case of all other overdue amounts.
Such interest on overdue amounts shall become due and be paid on demand
made by the Administrative Agent.
- 57 -
7.4 SELECTION OF INTEREST PERIODS AND GOLD FUNDING PERIODS
With respect to each LIBOR Loan or Gold Loan, the applicable Borrower
shall specify in the Drawdown Notice, Rollover Notice or Conversion Notice, the
duration of the Interest Period provided that:
(a) Interest Periods shall have a duration from one, two, three or
six months (subject to availability and to the aggregate number
of Interest Periods with different dates outstanding being less
than ten (10));
(b) Gold Funding Periods shall have a duration of one, two, three,
four, six or twelve months (subject to availability) and other
durations mutually acceptable to the relevant Borrower and the
Bullion Lenders and subject always to the aggregate number of
Gold Funding Periods with different dates outstanding being less
than five (5));
(c) the first Interest Period for a LIBOR Loan or Gold Funding
Period for a Gold Loan shall commence on and include the day on
which credit is obtained by way of such Loan and each subsequent
Interest Period or Gold Funding Period applicable thereto shall
commence on and include the date of the expiry of the
immediately preceding Interest Period or Gold Funding Period
applicable thereto; and
(d) if any Interest Period or Gold Funding Period would end on a day
which is not a Banking Day, such Interest Period or Gold Funding
Period shall be extended to the next succeeding Banking Day
unless such next succeeding Banking Day falls in the next
calendar month, in which case such Interest Period or Gold
Funding Period shall be shortened to end on the immediately
preceding Banking Day.
7.5 ACCEPTANCE FEES
(a) Upon the acceptance of any draft of a Canadian Borrower under
the Credit Facility pursuant hereto, such Borrower shall pay to
the Canadian Lenders, in the manner provided herein, in advance,
an acceptance fee calculated at the rate per annum, on the basis
of a year of 365 days, equal to the Applicable Rate on the face
amount of such Bankers' Acceptance for its term, being the
actual number of days in the period commencing on the date of
acceptance of such Borrower's draft and ending on but excluding
the maturity date of the Bankers' Acceptance; provided, however,
that such fee shall not be less than Cdn. $200 with respect to
any single transaction involving the issuance of one or more
Bankers' Acceptances.
(b) With respect to each drawdown by way of Bankers' Acceptances,
such acceptance fees shall be paid by the Canadian Lenders
deducting the amount thereof from the BA Discounted Proceeds
before advancing the BA Proceeds to the Administrative Agent as
provided in Section 3.4(c). With respect to each rollover or
conversion into Bankers' Acceptances, such acceptance fees shall
be
- 58 -
paid by the relevant Borrower to the Administrative Agent as
provided in Section 3.4(c). Each such payment is non-refundable
and fully earned when due.
7.6 GOLD FUNDING FEES
(a) Gold Funding Fees on each outstanding Gold Loan shall be paid to
the relevant Bullion Lenders, in accordance with Section 3.11,
in U.S. dollars or in Gold, as selected by the relevant Borrower
in the relevant Drawdown Notice, Conversion Notice or Rollover
Notice for such Gold Loan. In the absence of such selection by
the relevant Borrower, the Gold Funding Fees for such Gold Loan
shall be payable in Gold. Gold Funding Fees payable pursuant to
Section 7.3(c) shall be paid in U.S. dollars. If the relevant
Borrower elects to pay the Gold Funding Fees on any Gold Loan
therefor in U.S. dollars, the outstanding number of xxxx ounces
of such Gold Loan shall, for purposes of calculating the Gold
Funding Fees thereon for the relevant Gold Funding Period
pursuant to this Section 7.6(a), be calculated, at the option of
the relevant Borrower made in writing at least three Banking
Days prior to the commencement of Gold Funding Period with
respect to such Gold Loan, on the basis of (i) the London Price
on the first day of such Gold Funding Period multiplied by the
number of xxxx ounces of such Gold Loan, or (ii) the arithmetic
mean of the London Price for each Banking Day of such Gold
Funding Period multiplied by the number of xxxx ounces of such
Gold Loan. Upon the receipt by the Bullion Fronting Lender of
any Gold Funding Fees with respect to a particular Gold Loan,
the Bullion Fronting Lender shall forthwith:
(i) if such Gold Fronting Fees were paid in U.S. dollars,
remit to each relevant Non-Bullion Lender its pro rata
share of such payment; or
(ii) if such Gold Funding Fees were paid in Gold, sell an
amount of the Gold so received by it that constitutes
the aggregate of the pro rata shares of the relevant
Non-Bullion Lenders at the London Price therefor and
remit the proceeds thereof to the relevant Non-Bullion
Lenders.
(b) If Gold Funding Fees on any Gold Loan are payable in Gold, the
quantity of xxxx ounces of Gold payable by the relevant Borrower
with respect thereto shall be the product obtained by
multiplying (i) the number of xxxx ounces of such Gold Loan by
(ii) the sum of the Gold Funding Rate for the relevant Gold Loan
for such Gold Funding Period plus the Applicable Rate by (iii)
the quotient obtained by dividing the number of days in such
Gold Funding Period by 360.
(c) With respect to each Gold Loan advanced hereunder, the relevant
Borrower shall pay to the Bullion Fronting Lender, in accordance
with Section 3.11, 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
Gold Loan for which Non-Bullion Lenders have agreed to indemnify
the Bullion Fronting Lender for any credit extended by way of
such Gold Loan and for a period of time equal to the number of
days in the preceding Fiscal Quarter on which such Gold Loan was
outstanding. Each such payment is non-refundable
- 59 -
and fully earned when due. Such fronting fee on each outstanding
Gold Loan shall be paid in U.S. dollars or in Gold, as selected
by the relevant Borrower in the relevant Drawdown Notice,
Conversion Notice or Rollover Notice for such Gold Loan. In the
absence of such selection by the relevant Borrower, the fronting
fees for such Gold Loan shall be payable in Gold. Such fronting
fees payable pursuant to Section 7.3(c) shall be paid in U.S.
dollars. If the relevant Borrower elects to pay the fronting
fees on any Gold Loan therefor in U.S. dollars, the outstanding
number of xxxx ounces of such Gold Loan shall, for purposes of
calculating the fronting fees thereon for the relevant Gold
Funding Period pursuant to this Section 7.6(c), be calculated,
at the option of the relevant Borrower made in writing at least
three Banking Days prior to the commencement of Gold Funding
Period with respect to such Gold Loan, on the basis of (i) the
London Price on the first day of such Gold Funding Period
multiplied by the number of xxxx ounces of such Gold Loan, or
(ii) the arithmetic mean of the London Price for each Banking
Day of such Gold Funding Period (or such shorter three month
period if required pursuant to Section 7.2(c)(ii)) multiplied by
the number of xxxx ounces of such Gold Loan.
7.7 STANDBY FEE
Upon the first Banking Day following the completion of each Fiscal
Quarter and on the termination of the Credit Facility, the Borrowers shall pay,
in accordance with Section 3.11, to the U.S. Lenders (to the extent such U.S.
Lenders are not also Canadian Lenders) and otherwise to the Canadian Lenders, in
arrears, a standby fee calculated at the rate per annum, on the basis of a year
of 365 days, equal to the Applicable Rate on the Available Credit, such fee to
accrue daily from the date of the execution and delivery of this agreement to
and including the date of payment. For certainty, any such fees payable by the
Canadian Borrower shall be payable to the Canadian Lenders and any such fees
payable by the U.S. Borrowers shall be payable to the U.S. Lenders.
7.8 LETTER FEES
(a) The relevant Borrower shall pay to the relevant Lenders, in
accordance with Section 3.11, an issuance fee quarterly in
arrears on the first Banking Day of each Fiscal Quarter,
calculated at a rate per annum equal to the Applicable Rate 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 relevant 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. The parties hereto acknowledge that, with respect to
Letters outstanding under the Existing Credit Agreement as at
the date hereof, all applicable Letter fees have been paid up to
and including December 31, 2004 and that, consequent upon this
agreement becoming effective pursuant to Section 12.2, no
adjustment shall be made with respect to said Letters with
respect to Letter fees payable with respect thereto for the
period up to and
- 60 -
including December 31, 2004. Accordingly, the first date on
which payment of Letter fees shall be due under this Section
7.8(a) shall be April 1, 2005.
(b) With respect to each Letter issued hereunder, the relevant
Borrower shall pay to the Issuing Lender, in accordance with
Section 3.11, 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. The last two sentences of Section 7.8(a) shall
apply mutatis mutandis to this Section 7.8(b).
7.9 APPLICABLE RATE ADJUSTMENT
The changes in the Applicable Rate shall be effective as of the first
day of the applicable Fiscal Quarter, in each case based upon the compliance
certificate contemplated under Section 11.1(a)(v) that has previously been
delivered to the Administrative Agent with respect to the second immediately
preceding Fiscal Quarter. If a new Applicable Rate becomes effective during the
term of an outstanding Bankers' Acceptance, BA Rate Loan, LIBOR Loan or Letter,
the Administrative Agent shall forthwith determine the amount of any overpayment
or underpayment of acceptance fees with respect to such Bankers' Acceptances,
interest with respect to such BA Rate Loan or LIBOR Loan or issuance fees with
respect to such Letters and notify the Borrowers and the Lenders of such
amounts. Such determination by the Administrative Agent shall constitute, in the
absence of manifest error, PRIMA FACIE evidence of the amount of such
overpayment or underpayment, as the case may be. In the event of an
underpayment, the Borrowers shall, upon receipt of such notice, pay to the
relevant Lenders in accordance with Section 3.9, the amount of such
underpayment. In the event of any overpayment, the amount of such overpayment
shall be credited to succeeding payments of acceptance fees, interest or
issuance fees, as the case may be, as they become due until such amount has been
fully applied.
ARTICLE 8
RESERVE, CAPITAL, INDEMNITY AND TAX PROVISIONS
8.1 CONDITIONS OF CREDIT
The obtaining or maintaining of credit hereunder shall be subject to the
terms and conditions contained in this Article 8.
8.2 CHANGE OF CIRCUMSTANCES
If, with respect to any type of credit, the introduction or adoption of
any law, regulation, guideline, request or directive (whether or not having the
force of law) of any governmental authority, central bank or comparable agency
("RESTRAINT") or any change therein or in the application thereof to any
Borrower or to any Lender or in the interpretation or administration thereof or
any compliance by any Lender therewith:
- 61 -
(a) prohibits or restricts extending or maintaining such type of
credit or the charging of interest or fees in connection
therewith, such Borrower agrees that such Lender shall have the
right to comply with such Restraint, shall have the right to
refuse to permit such Borrower to obtain such type of credit and
shall have the right to require, at the option of such Borrower,
the conversion of such outstanding credit to another type of
credit to permit compliance with the Restraint or repayment in
full of such credit together with accrued interest thereon on
the last day on which it is lawful for such Lender to continue
to maintain and fund such credit or to charge interest or fees
in connection therewith, as the case may be; or
(b) shall impose or require any reserve, special deposit
requirements or tax (excluding taxes measured with reference to
the net income of such Lender or capital taxes or receipts and
franchise taxes), shall establish an appropriate amount of
capital to be maintained by such Lender or shall impose any
other requirement or condition which results in an increased
cost to such Lender of extending or maintaining a credit or
obligation hereunder or reduces the amount received or
receivable by such Lender with respect to any credit under this
agreement or reduces such Lender's effective return hereunder or
on its capital or causes such Lender to make any payment or to
forego any return based on any amount received or receivable
hereunder, then, on notification to such Borrower by such
Lender, such Borrower shall pay immediately to such Lender such
amounts as shall fully compensate such Lender for all such
increased costs, reductions, payments or foregone returns which
accrue up to and including the date of receipt by such Borrower
of such notice and thereafter, upon demand from time to time,
such Borrower shall pay such additional amount as shall fully
compensate such Lender for any such increased or imposed costs,
reductions, payments or foregone returns. Such Lender shall
notify the relevant Borrower of any actual increased or imposed
costs, reductions, payments or foregone returns forthwith on
becoming aware of same and shall concurrently provide to such
Borrower a certificate of an officer of such Lender setting
forth the amount of compensation to be paid to such Lender and
the basis for the calculation of such amount. Notwithstanding
this Section 8.2(b), no Borrower shall be liable to compensate
such Lender for any such cost, reduction, payment or foregone
return occurring more than 60 days before receipt by such
Borrower of the aforementioned notification from such Lender;
provided, however, that the aforementioned limitation shall not
apply to any such cost, reduction, payment or foregone return of
a retroactive nature.
8.3 FAILURE TO FUND AS A RESULT OF CHANGE OF CIRCUMSTANCES
If any Lender but not all of the Lenders who have Individual Commitments
seeks additional compensation pursuant to Section 8.2(b) (the "AFFECTED
LENDER"), then the relevant Borrowers may indicate to the Administrative Agent
in writing that they desire to replace the Affected Lender with one or more of
the other relevant Lenders, and the Administrative Agent shall then forthwith
give notice to the other relevant Lenders that any such Lender or Lenders may,
in the aggregate, advance all (but not part)
- 62 -
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
Commitments 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
relevant Lender or the Administrative Agent be obliged to do so). If one or more
relevant 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 Commitments and the obligations of
such Assenting Lender under the Credit Facility and the rights and obligations
of such Assenting Lender under each of the other Credit Documents to the extent
they relate to the Credit Facility 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 to the extent they relate to the Credit Facility
on a date mutually acceptable to the Assenting Lenders and the relevant
Borrower. On such date, the Assenting Lenders shall extend to the relevant
Borrower 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 9.5. 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.
8.4 INDEMNITY RELATING TO CREDITS
Upon notice from the Administrative Agent to the relevant Borrower
(which notice shall be accompanied by a detailed calculation of the amount to be
paid by such Borrower), such Borrower shall pay to the Administrative Agent or
the relevant Lenders such amount or amounts as will compensate the
Administrative Agent or the relevant Lenders (including, for certainty, the
Issuing Lender and the Bullion Fronting Lender) for any loss, cost or expense
incurred by them:
(a) in the liquidation or redeposit of any funds or bullion acquired
by the relevant Lenders to fund or maintain any portion of a
LIBOR Loan, a Gold Loan or a BA Rate Loan as a result of:
(i) the failure of such Borrower to borrow or make
repayments on the dates specified under this agreement
or in any notice from such Borrower to the
Administrative Agent (provided that if any notice
specifies the repayment of a LIBOR Loan, a Gold Loan or
a BA Rate Loan at any time other than its maturity date,
then such Borrower shall be responsible for any loss,
costs or expenses referred to above); or
(ii) the repayment or prepayment of any amounts on a day
other than the payment dates prescribed herein or in any
notice from such Borrower to the Administrative Agent
(provided that if any notice specifies the
- 63 -
repayment of a LIBOR Loan, a Gold Loan or a BA Rate Loan
at any time other than its maturity date, then such
Borrower shall be responsible for any loss, costs or
expenses referred to above); or
(b) with respect to any Bankers' Acceptance or Letter, arising from
claims or legal proceedings, and including reasonable legal fees
and disbursements, respecting the collection of amounts owed by
such Borrower hereunder in respect of such Bankers' Acceptance
or Letter or the enforcement of the Administrative Agent or the
Lenders' rights hereunder in respect of such Bankers' Acceptance
or Letter including, without limitation, legal proceedings
attempting to restrain the Administrative Agent or the Lenders
from paying any amount under such Bankers' Acceptance or Letter.
8.5 INDEMNITY FOR TRANSACTIONAL AND ENVIRONMENTAL LIABILITY
(a) The Borrowers hereby agree to indemnify and hold the
Administrative Agent, each Lender, the Issuing Lender, the
Bullion Fronting 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 Borrowers (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, except for any
such Indemnified Liabilities that a court of competent
jurisdiction determined arose on account of the relevant
Indemnified Party's gross negligence or willful misconduct.
(b) Without limiting the generality of the indemnity set out in the
preceding clause (a), the Borrowers 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 Borrowers, 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
- 64 -
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 determined arose on account of the
relevant Indemnified Party's gross negligence or willful
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 or any of the Lenders.
(d) The Borrowers hereby agree that, for the purposes of effectively
allocating the risk of loss placed on the Borrowers by this
Section 8.5, the Administrative Agent 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 Borrowers pursuant to
this Section 8.5 shall be unenforceable, the Borrowers agree to
make the maximum contribution to the payment and satisfaction of
each obligation that is permissible under applicable law.
8.6 PAYMENTS FREE AND CLEAR OF TAXES
Any and all payments made hereunder or under any other Credit Document
by any Borrower to or for the benefit of the Administrative Agent, the Lenders
or any of them ("APPLICABLE PAYMENTS") shall be made free and clear of, and
without deduction for, any and all present or future taxes, levies, imposts,
deductions, charges, fees, duties or withholding or other charges of any nature
imposed by any taxing authority, and all liabilities with respect thereto,
imposed by any jurisdiction (the "APPLICABLE JURISDICTION") as a consequence or
result of any action taken by such Borrower, including the making of any
Applicable Payment but excluding, in the case of the Administrative Agent, the
Lenders or any of them, taxes imposed on its net income or capital taxes or
receipts and franchise taxes (all such non-excluded taxes, levies, imposts,
deductions, charges, fees, duties, withholdings and liabilities being
hereinafter referred to as "TAXES"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any Applicable Payment to the
Administrative Agent, the Lenders or any of them, the sum so payable to the
Administrative Agent, the Lenders or any of them shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 8.6) the Administrative
Agent, the Lenders or any of them receives an amount equal to the sum it would
have received had no such deductions been made. Without prejudice to the
survival of any other agreement of the Borrowers hereunder, the agreements and
obligations of the Borrowers contained in this Section 8.6 shall survive
- 65 -
indefinitively the permanent repayment of the outstanding credit hereunder and
the termination of the Credit Agreement. This Section 8.6 shall not apply,
unless an Event of Default has occurred and is continuing, with respect to any
payment made hereunder or under any other Credit Document by a Canadian Borrower
to or for the benefit of the Administrative Agent or a particular Lender if the
Administrative Agent or such Lender, as the case may be, is not a resident of
Canada for the purposes of the INCOME TAX ACT (Canada) or with respect to any
payment made hereunder or under any other Credit Document by a U.S. Borrower to
or for the benefit of the Administrative Agent or a particular Lender if the
Administrative Agent or such Lender, as the case may be, is not a "United States
Person" as defined in Section 7701(a)(30) of the Internal Revenue Code (United
States) (a "NON-U.S. LENDER") and fails to provide two duly completed copies of
either (x) Internal Revenue Service Form W-8BEN or applicable successor form
claiming eligibility of the Non-U.S. Lender for benefits of an income tax treaty
to which the United States is a party, (y) Internal Revenue Service Form W-8ECI
or applicable successor form, or (z) in the case of a Non-U.S. Lender that is
not legally entitled to deliver either form listed in clause (x) or (y),
Internal Revenue Service Form W-8BEN or applicable successor form and a
certificate of a duly authorized officer of such Non-U.S. Lender to the effect
that such Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of any U.S. Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled
foreign corporation receiving interest from a related person within the meaning
of Section 881(c)(3)(C) of the Code.
ARTICLE 9
REPAYMENTS AND PREPAYMENTS
9.1 REPAYMENTS
(a) The Borrowers shall repay to the Lenders in full the outstanding
credit under the Credit Facility on the Maturity Date together
with all accrued and unpaid interest and Gold Funding Fees
thereon and all accrued and unpaid fees with respect thereto. As
concerns any Letter which, on the Maturity Date, has an expiry
date later than the Maturity Date, the Borrowers 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
Borrowers to the Issuing Lender, the Borrowers shall have no
further liability to the Lenders with respect to any such
Letter.
(b) The Borrowers shall repay to any Non-Continuing Lender in full
the outstanding credit under the Credit Facility owing to such
Non-Continuing Lender on the relevant Non-Continuing Lender
Maturity Date together with all accrued but unpaid interest
thereon and Gold Funding Fees and all accrued but unpaid fees
with respect thereto. As concerns any Letter which, on any such
Non-Continuing Lender Maturity Date, has an expiry date later
than such Non-Continuing Lender Maturity Date, the Borrowers
shall pay to the Issuing Lender, on such Non-Continuing Lender
Maturity Date, the then contingent liability of the Issuing
Lender thereunder with respect to such Non-Continuing Lender (to
be held solely for the purpose of satisfying any draw under such
Letter and to be held subject to
- 66 -
Section 13.2). Following such payment by the Borrowers to the
Issuing Lender, the Borrowers shall have no further liability to
such Non-Continuing Lender with respect to any such Letter.
9.2 EXTENSION OF MATURITY DATE
(a) At any time not earlier than January 31st of each year nor later
than February 28th of each year, Kinross Canada may, by written
request to the Administrative Agent (the "EXTENSION REQUEST"),
request that this agreement be amended to extend the then
current Maturity Date to a date one year later than the then
current Maturity Date. A copy of the Extension Request shall be
provided by the Administrative Agent to each of the Lenders in
accordance with Section 14.18. Each Lender may, in its sole
discretion and regardless of whether or not there is any Default
hereunder, by written notice to the Administrative Agent (the
"EXTENSION RESPONSE NOTICE"), not later than 25 days prior to
date which is two years prior to the then current Maturity Date
(the "EXTENSION RESPONSE PERIOD"), approve or decline the
Extension Request. If any Lender does not provide an Extension
Response Notice within the Extension Response Period, such
Lender shall be deemed to have declined the Extension Request.
If the Majority Lenders approve the Extension Request, the
Administrative Agent shall notify Kinross Canada and the Lenders
of such approval and confirm the new Maturity Date, which new
Maturity Date shall become effective on and from the then
current Maturity Date. If the Majority Lenders do not approve
the Extension Request, the Administrative Agent shall notify
Kinross Canada and the Lenders and the Maturity Date shall not
be extended.
(b) If the Majority Lenders but less than all of the Lenders approve
the Extension Request within the Extension Response Period (the
"APPROVING LENDERS"), the following shall apply:
(i) On or before the second Banking Day after the Extension
Response Period, the Administrative Agent shall give
written notice (the "ACQUISITION REQUEST NOTICE") to
Kinross Canada and each Lender identifying the Approving
Lenders and Lender or Lenders that have declined or are
deemed to have declined the Extension Request (the
"DECLINING LENDERS") and their respective Individual
Commitments.
(ii) Any Approving Lender may, at its option, acquire all or
any portion of the rights and obligations of the
Declining Lenders under the Credit Documents (all of
such rights and obligations being herein called the
"AVAILABLE AMOUNT") by giving written notice to the
Administrative Agent (an "ACQUISITION NOTICE") of the
portion of the Available Amount which it is prepared to
acquire (the "DESIRED ACQUISITION AMOUNT"). Such
Acquisition Notice shall be given within 10 days
following the giving of the Acquisition Request Notice
(such deadline being herein called the "ACQUISITION
DEADLINE"). If only one Approving Lender gives an
Acquisition Notice to the Administrative Agent or if
more than one
- 67 -
Approving Lender gives an Acquisition Notice to the
Administrative Agent but the aggregate of their Desired
Acquisition Amounts is less than or equal to the
Available Amount, then each such Approving Lender shall
be entitled to acquire its Desired Acquisition Amount of
the rights and obligations of the Declining Lenders
under the Credit Documents. If more than one Approving
Lender gives an Acquisition Notice to the Administrative
Agent and the aggregate of the Desired Acquisition
Amounts is greater than the Available Amount, then each
such Approving Lender shall be entitled to acquire a pro
rata share of the rights and obligations of the
Declining Lenders under the Credit Documents, such pro
rata share being determined based on the relative
Desired Acquisition Amount of each such Approving
Lender. On or before the second Banking Day following
the Acquisition Deadline, the Administrative Agent shall
give to Kinross Canada and each Lender a written notice
identifying the Available Amount of each Declining
Lender and the portion thereof to be acquired by each
Approving Lender. Each of such acquisitions shall be
completed on the date which is two years prior to the
then current Maturity Date (without giving effect to the
Extension Request) in accordance with the procedures set
out in Section 15.5(c). If the Available Amount is not
completely acquired by the Approving Lenders, the
Borrowers may locate other Persons ("SUBSTITUTE
LENDERS") who qualify as Lenders, are satisfactory to
the Administrative Agent and the Issuing Lender, acting
reasonably, and who acquire all or a portion of the
balance of the rights and obligations of the Declining
Lenders under the Loan Documents on the date which is
two years prior to the then current Maturity Date
(without giving effect to the Extension Request) in
accordance with the procedures set out in Section
15.5(c). Any outstanding credit extended by the
Declining Lenders to the Borrower which is not so
acquired by Approving Lenders or Substitute Lenders
shall remain outstanding hereunder subject to the terms
and conditions hereof but shall be repaid by the
Borrowers to the Declining Lender in full on the then
current Maturity Date (without giving effect to the
Extension Request).
9.3 VOLUNTARY PREPAYMENTS UNDER CREDIT FACILITY
Subject to Section 9.4, the Borrowers shall be entitled to prepay all or
any portion of the outstanding Loans under the Credit Facility (other than the
prepayment of Bankers' Acceptances or BA Rate Loans on any day other than the
last day of their term) at any time, without penalty, provided that Section
8.4(a) shall be complied with in connection with any such prepayment. Amounts
which are prepaid as aforesaid may be reborrowed.
9.4 PREPAYMENT NOTICE
The Borrowers shall give written notice to the Administrative Agent of
each voluntary prepayment pursuant to Section 9.3. Such notice (a "PREPAYMENT
NOTICE") shall be irrevocable, shall be given in accordance with Section 3.15
and shall specify:
- 68 -
(a) the date on which the prepayment is to take place; and
(b) the type and principal amount of the Loan or the portion thereof
which is to be prepaid.
9.5 REIMBURSEMENT OR CONVERSION ON PRESENTATION OF LETTERS
(a) On presentation of a Letter and payment thereunder by the
Issuing Lender, the relevant 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; failing such
payment, the relevant Borrower shall be deemed to have effected
a conversion of such Letter into a Base Rate Canada Loan (if
such Letter was denominated in U.S. dollars and issued on behalf
of and at the request of a Canadian Borrower), a Base Rate New
York Loan (if such Letter was denominated in U.S. dollars and
issued on behalf of and at the request of a U.S. Borrower) or a
Prime Rate Loan (if such Letter was denominated in Canadian
dollars) to the extent of the payment of the Issuing Lender
thereunder.
(b) If the Issuing Lender makes payment under any Letter and the
relevant Borrower does not fully reimburse the Issuing Lender on
or before the date of payment, then Section 9.5(a) shall apply
to deem a Loan to be outstanding to the relevant Borrower under
this agreement in the manner therein set out. Each relevant
Lender shall, on request by the Issuing Lender, immediately pay
to the Issuing Lender an amount equal to such Lender's Pro Rata
Share of the amount paid by the Issuing Lender such that each
relevant Lender is participating in the deemed Loan in
accordance with its Pro Rata Share.
(c) Each relevant 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 relevant
Borrower does not fully reimburse the Issuing Lender therefor.
9.6 LETTERS SUBJECT TO AN ORDER
Subject to Section 13.2, the relevant 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.
9.7 CURRENCY OF REPAYMENT
All payments and repayments of outstanding credit hereunder shall be
made (x) in the case of Gold Loans, in Gold and (y) otherwise, in the currency
of such outstanding credit.
- 69 -
9.8 REPAYMENTS OF CREDIT EXCESS
The Borrowers shall repay to the relevant Lenders on demand the amount
of any Credit Excess. Each such repayment shall first be applied to repay
outstanding Prime Rate Loans, Base Rate Canada Loans and Base Rate New York
Loans as selected by Kinross Canada and, to the extent that the amount of such
repayment exceeds the aggregate amount of credit outstanding by way of such
Loans which have been repaid, shall then be deposited by the Administrative
Agent in a segregated account and held in trust for the relevant Lenders to be
applied to repay outstanding BA Rate Loans, LIBOR Loans or Gold Loans or to
satisfy reimbursement obligations with respect to outstanding Bankers'
Acceptances or Letters as such Loans or Bankers' Acceptances mature or as such
Letters are drawn upon, as the case may be.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.1 REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Administrative Agent to enter into this
agreement and to induce the Lenders to extend credit hereunder, the Borrowers
hereby represent and warrant to the Lenders and the Administrative Agent, as of
the date of this agreement, as of the date of each extension of credit hereunder
and as of the last day of each Fiscal Quarter, as follows and acknowledge and
confirm that the Lenders and the Administrative Agent are relying upon such
representations and warranties in entering into this agreement and in extending
credit hereunder:
(a) STATUS AND POWER OF OBLIGORS. Each Obligor is a corporation duly
incorporated and organized and validly subsisting in good
standing under the laws of its jurisdiction of incorporation.
Each Obligor is duly qualified, registered or licensed in all
jurisdictions where such qualification, registration or
licensing is required. Each Obligor 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
and to otherwise 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.
- 70 -
(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 material breach or violation of, or
constitute a material 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.
(d) FINANCIAL STATEMENTS. The consolidated financial statements of
Kinross Canada for the most recently completed Fiscal Quarter or
Fiscal Year, as the case may be, were prepared in accordance
with generally accepted accounting principles and no Material
Adverse Change has occurred in the condition, financial or
otherwise, of Kinross Canada since the date of such financial
statements. The consolidated balance sheet of the aforesaid
financial statement presents a fair statement of the financial
condition and assets and liability of Kinross Canada as at the
date thereof and the consolidated statements of operations,
retained earnings and cashflows contained in the aforesaid
consolidated financial statements fairly presents the results of
the operations of Kinross Canada 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 Kinross Canada, Kinross Canada does not have any
outstanding indebtedness or any liability or obligations
(whether accrued, absolute, contingent or otherwise) of a nature
customarily reflected or reserved against in a balance sheet
(including the notes thereto) prepared in accordance with
generally accepted accounting principles.
(e) LITIGATION. There are no actions, suits, inquiries, claims or
proceedings (whether or not purportedly on behalf of any
Company) pending or threatened in writing against or affecting
any 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 Company has good title to its property,
assets and undertaking, free from any Lien other than the
Permitted Liens and title defects or irregularities that could
not reasonably be expected to have a Material Adverse Effect.
(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
- 71 -
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 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.
(i) SOLVENCY PROCEEDINGS. No 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 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 Company has filed all tax returns
and tax reports required by law to have been filed by it and has
paid all taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted accounting principles 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 Company, which
expropriation could reasonably be expected to have a Material
Adverse Effect.
- 72 -
(l) ENVIRONMENTAL COMPLIANCE.
(i) All facilities and property (including underlying
groundwater) owned, leased, used or operated by any
Company 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) 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 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) 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) FRENCH FORM OF CORPORATE NAME. Except as reported or to be
reported to the Administrative Agent in accordance with Section
11.1(i), there is no French form of the corporate name of any
Obligor.
(n) PRINCIPAL PLACES OF BUSINESS; JURISDICTIONS OF INCORPORATION.
Except as reported or to be reported to the Administrative Agent
in accordance with Section 11.1(i), the only place of business,
or if an Obligor has more than one place of business, the
principal place of business of each Obligor (for the purposes of
the PPSA or any similar law of any other jurisdiction) and the
jurisdiction of incorporation of each Obligor is as set out in
Schedule D hereto.
- 73 -
(o) LOCATIONS OF TANGIBLE PERSONAL PROPERTY. Except as reported or
to be reported to the Administrative Agent in accordance with
Section 11.1(i), the addresses of all locations of the
inventory, equipment and other tangible personal property of
each of Fairbanks U.S. and Xxxxx Creek are as set out in
Schedule N hereto. \
(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, except as provided in the Material Contracts relating
to ownership of the Shares of Newinco Brazil. None of the
Obligors is an "investment company" within the meaning of the
INVESTMENT COMPANY ACT of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the
PUBLIC UTILITY HOLDING COMPANY ACT of 1935, as amended.
(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(i),
Schedule R 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. Except as
provided in the Material Contracts as concerns the shares of TVX
Brazil, 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) [INTENTIONALLY DELETED]
(s) SIGNIFICANT MATERIAL SUBSIDIARIES AND PARTNERSHIPS. There are no
Significant Material Subsidiaries other than the Obligors, the
Pledged Subsidiaries and those Significant Material Subsidiaries
which are hereafter identified in compliance certificates
delivered to the Administrative Agent pursuant to Section
11.1(a)(v). No Company is, directly or indirectly, a member of,
or a partner or participant in, any partnership, joint venture
or syndicate where the joint liability arising from such
membership or participation could reasonably be expected to have
a Material Adverse Effect.
(t) 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)(v), the chart attached
hereto as Schedule H accurately sets out the corporate structure
of the
- 74 -
Borrowers and all of their Subsidiaries and evidences (i)
intercorporate share ownership and (ii) ownership of mines.
(u) SOLVENCY AFTER DRAWDOWN. On an unconsolidated basis,
(i) the assets of each U.S. Borrower shall exceed its
respective liabilities, including contingent
liabilities;
(ii) the capital of each U.S. Borrower shall not be
unreasonably small to conduct its respective business;
and
(iii) no U.S. Borrower shall have incurred debts, nor shall
have intended to incur debts, beyond its respective
ability to pay such debts as they mature.
(v) EMPLOYEE BENEFIT PLANS. Each of the ERISA Companies has
fulfilled in all material respects its obligations under the
minimum funding standards of Section 302 of ERISA and Section
412 of the Code with respect to each Plan and is in material
compliance with all other applicable provisions of ERISA. No
U.S. Borrower nor any ERISA Affiliate has incurred any
Withdrawal Liability that could reasonably expected to have a
Material Adverse Effect. None of the ERISA Companies has
received any notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of
Title IV of ERISA.
(w) REGULATION U OR X. None of the Borrowers is engaged in the
business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any credit obtained
hereunder shall be used for a purpose which violates, or would
be inconsistent with, F.R.S. Board Regulation U or X. Terms for
which meanings are provided in F.R.S. Board Regulation U or X or
any regulations substituted therefor, as from time to time in
effect, are used in this Section with such meanings.
(x) ASSETS INSURED. The property and assets of the Companies 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 the Companies insured thereunder of the
full amount of any material insured loss.
(y) REAL PROPERTY. 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(i), none of the Obligors, other
than Xxxxx Creek, Fairbanks U.S. and Kinross Canada, own any
material real property, Xxxxx Creek owns no material real
property other than its 51% interest in the Fort Xxxx Deposit,
Fairbanks U.S. owns no material real property other than its 49%
interest in the Fort Xxxx Deposit and Kinross Canada owns no
material real property other than its joint venture interest in
respect of the gold
- 75 -
mines near Pickle Lake, Ontario known as the Xxxxxxxxxxx Mine
and near Timmins, Ontario known as the Pamour Mine and the Hoyle
Pond Mine.
(z) MATERIAL CONTRACTS. Each of the Material Contracts is in full
force and effect, and the Borrowers, as at the date hereof, are
not aware of any actual or alleged outstanding material defaults
thereunder.
(aa) [INTENTIONALLY DELETED]
(bb) [INTENTIONALLY DELETED]
(cc) GUARANTEE OBLIGATIONS. Other than the Guarantee Obligations
constituted by the Permitted Indebtedness referred to in
paragraph (g) of the definition thereof, there are no Guarantee
Obligations of any Obligor which have been incurred other than
in the ordinary course of the relevant Obligor's business.
(dd) FOREIGN ASSETS CONTROL REGULATIONS. Neither the execution and
delivery of this agreement nor the Borrowers' use of the
proceeds of the Credit Facility will violate the Trading with
the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation
or executive order relating thereto. Without limiting the
foregoing, no Obligor nor any of its Subsidiaries (a) is or will
become a Person whose property or interests in property are
blocked pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001) or (b) engages or
will engage in any dealings or transactions, or be otherwise
associated, with any such Person. Each Obligor and its
Subsidiaries are in compliance, in all material respects, with
the Title III of Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA Patriot Act of 2001). No part of the proceeds from the
Credit Facility will be used, directly or indirectly, for any
payment to any governmental official or employee, political
party, official of a political party, candidate for political
office or anyone else acting in an official party capacity, in
order to obtain, retain or direct business or obtain any
improper advantage, in violation of the United States Foreign
Corrupt Practices Act of 1977, as amended.
(ee) 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.
10.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the Borrowers 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.
- 76 -
ARTICLE 11
COVENANTS
11.1 AFFIRMATIVE COVENANTS
The Borrowers 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 14.14:
(a) FINANCIAL REPORTING. The Borrowers shall furnish the
Administrative Agent with the following statements and reports
(with sufficient copies for all of the Lenders):
(i) within 120 days after the end of each Fiscal Year (other
than the Fiscal Year ended December 31, 2004) and by
September 30, 2005 for the Fiscal Year ended December
31, 2004) copies of the audited consolidated financial
statements of Kinross Canada for such Fiscal Year and
the auditors' report thereon in form and substance
satisfactory to the Administrative Agent, and a chart
setting out the corporate structure of the Borrowers and
all of their Subsidiaries, whether direct or indirect,
and evidencing (i) intercorporate share ownership and
(ii) mine ownership;
(ii) within 120 days after the end of the Fiscal Year ended
December 31, 2004, copies of the draft unaudited
consolidated financial statements of Kinross Canada for
such Fiscal Year (which financial statements shall be
based upon Kinross Canada's existing accounting
treatment for goodwill), and a chart setting out the
corporate structure of the Borrowers and all of their
Subsidiaries, whether direct or indirect, and evidencing
(i) intercorporate share ownership and (ii) mine
ownership;
(iii) within 45 days after the end of each Fiscal Quarter
(other than the Fiscal Quarter ending March 31, 2005
and, within 45 days of April 18, 2005 (being the date of
completion of the S & P Valuation Report), for the
Fiscal Quarter ended March 31, 2005), copies of the
unaudited consolidated financial statements of Kinross
Canada together with unaudited segmented financial
statements for such Fiscal Quarter in respect of
specified entities and mines, in form and substance
satisfactory to the Administrative Agent;
(iv) within 45 days after the end of the Fiscal Quarter
ending March 31, 2005, copies of the draft unaudited
consolidated financial statements of Kinross Canada
together with draft unaudited segmented financial
statements for such Fiscal Quarter in respect of
specified entities and mines, in form and substance
satisfactory to the Administrative Agent (which
financial statements shall be based upon Kinross
Canada's existing accounting treatment for goodwill);
- 77 -
(v) concurrent with the deliveries of financial statements
pursuant to any of clauses (i) and (iv) above, a duly
executed and completed compliance certificate, in the
form attached as Schedule B hereto and signed by a
senior financial officer of Kinross Canada;
(vi) within 45 days after the end of each Fiscal Quarter, a
report summarizing the commodity, interest rate and
foreign exchange risk management activities of the
Companies;
(vii) within 120 days after the end of each Fiscal Year a
report, prepared by Kinross Canada detailing Kinross
Canada's estimated consolidated future reclamation and
closure costs;
(viii) within 120 days after the end of each Fiscal Year, an
annual budget (including a cash flow forecast, gold
production projections and a capital expenditures plan)
of Kinross Canada in respect of the next period of three
Fiscal Years including the then current Fiscal Year;
(ix) concurrent with disclosure provided to U.S. regulatory
authorities on an annual basis, copies of such
disclosure as it relates to Guarantee Obligations of the
Obligors; and
(x) 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. Kinross Canada shall, upon request,
furnish the Administrative Agent with copies of all documents
which are filed by any of the Companies with the Ontario
Securities Commission or with any similar Official Body in any
other jurisdiction in compliance with applicable securities
legislation.
(c) USE OF PROCEEDS. The Borrowers shall apply up to U.S.
$108,000,000 of the Credit Facility by way of the Paracatu
Advance and otherwise shall apply all of the proceeds of the
Credit Facility to working capital requirements and general
corporate purposes.
(d) INSURANCE. The Borrowers shall, and shall cause each Guarantor
to, insure and keep insured, with insurers, for risks, in
amounts and otherwise upon terms (including, without limitation,
the undertaking of the insurer to give the Administrative Agent
30 days' written notice of the cancellation of the policy)
satisfactory to the Administrative Agent acting reasonably, all
of the Secured Assets, with the Administrative Agent, for and on
behalf of the Finance Parties, named as loss payee and
additional insured as their interest may appear with respect to
all property, boiler and machinery insurance. The Borrowers
shall deliver to the Administrative Agent certificates of
insurance (Accord form or equivalent) or if required certified
copies of all of the insurance policies, riders and endorsements
relating to the aforesaid insurance. The covenants contained in
this Section 11.1(d) shall, without duplication, be in addition
to any covenants
- 78 -
relating to insurance which are contained in any of the Security
Documents. The Borrowers shall promptly notify the
Administrative Agent of any material loss, damage, or
destruction to the Secured Assets or arising from their use,
whether or not covered by insurance. In the absence of any
Default or Event of Default, and provided that the aggregate
amount of such proceeds does not exceed $10,000,000, or such
proceeds exceed $10,000,000 but the Borrowers have promptly
provided to the Administrative Agent a detailed report on the
proposed uses of such proceeds, the Borrowers shall have the
right to determine whether, and to what extent, such insurance
proceeds shall be used for repair or replacement. If, however,
any Default or Event of Default shall be continuing, or the
aggregate amount of such insurance proceeds exceeds $10,000,000
and the Borrowers have not promptly provided to the
Administrative Agent a detailed report on the proposed uses of
such proceeds, the Majority Lenders may determine, in their sole
discretion, whether the proceeds shall be used for repair or
replacement. If neither an Event of Default nor a Default
exists, and aggregate proceeds of such insurance do not exceed
$10,000,000 or such proceeds exceed $10,000,000 but the
Borrowers have promptly provided to the Administrative Agent a
detailed report on the proposed uses of such proceeds, the
Borrowers or any Guarantor, as the case may be, may negotiate a
settlement regarding such proceeds with the insurance company
and the Administrative Agent shall forward such proceeds to the
Borrower or Guarantor, as the case may be. If, however, an Event
of Default or a Default exists, or the aggregate amount of
insurance proceeds exceeds $10,000,000 and the Borrowers have
not promptly provided to the Administrative Agent a detailed
report on the proposed uses of such proceeds, the Administrative
Agent shall collect such insurance proceeds directly and no
Obligor shall enter into any settlement agreement with the
applicable insurance company without the prior written consent
of the Administrative Agent, which consent shall not be
unreasonably withheld. At any time that the Security has become
enforceable, such insurance proceeds shall be treated as
Proceeds of Realization and applied as provided herein.
(e) ACCESS TO SENIOR FINANCIAL OFFICERS. Upon the request of the
Administrative Agent at reasonable intervals, the Borrowers
shall, and shall cause each Material Subsidiary to, make
available its senior financial officers to answer questions
concerning such Company's business and affairs.
(f) REIMBURSEMENT OF EXPENSES. The Borrowers 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 and of any mining title consultant retained
by the Administrative Agent as well the costs of any engineering
reports and environmental audits and studies as required 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 any amendments and waivers hereto
- 79 -
(whether or not consummated or entered into), the charges of
Intralinks and any lien search fees and lien registration 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 Borrowers shall
promptly notify the Administrative Agent of the commencement or
the written threat of any expropriation or condemnation of any
of the Secured Assets or of the institution of any proceedings
related thereto.
(h) INSPECTION OF ASSETS AND OPERATIONS. The Borrowers shall, and
shall cause each Material Subsidiary to, permit representatives
of the Administrative Agent from time to time and
representatives of the Lenders (but no more than once in any
particular Fiscal Year with respect to any particular Lender) to
inspect the Secured Assets and for that purpose to enter on any
property which is owned and controlled by the Borrowers or the
Material Subsidiaries and where any of the Secured Assets may be
situated during reasonable business hours and, unless a Default
has occurred and is continuing, upon reasonable notice.
(i) CHANGE OF NAME, OFFICE OR OTHER INFORMATION. The Borrowers shall
notify the Administrative Agent in writing (i) promptly of any
change in (A) the corporate name of any Obligor; (B) the
location of the principal place of business, chief executive
office or head office of any Obligor; (C) the jurisdiction of
incorporation of any Obligor; or (D) the jurisdictions in which
tangible property of either Fairbanks U.S. or Xxxxx Creek is
located; (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(q); and (iii) at the time that they deliver
their next Compliance Certificate, the description of any
additional material real property acquired by any Obligor.
(j) CORPORATE EXISTENCE. Other than as permitted pursuant to the
proviso in Section 11.2(b), the Borrowers shall, and shall cause
each Material Subsidiary to, maintain its corporate existence in
good standing and qualify and remain duly qualified to carry on
business and own property in each jurisdiction in which such
qualification is necessary.
(k) CONDUCT OF BUSINESS. The Borrowers shall, and shall cause each
Material Subsidiary 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 Borrowers shall, and
shall cause each Material Subsidiary 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. The
Borrowers shall, and shall cause
- 80 -
each Material Subsidiary 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 Borrowers shall pay, and shall cause each Material
Subsidiary to pay, all material taxes, rates, government fees
and dues 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, rates, fees, dues, levies,
assessments or imposts is being contested in good faith by
appropriate proceedings and reserves are being maintained in
accordance with generally accepted accounting principles 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 Borrowers shall promptly notify the
Administrative Agent of any actions, suits, inquiries, claims or
proceedings (whether or not purportedly on behalf of any
Company) commenced or threatened in writing against or affecting
any 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 Borrowers shall, and shall cause each
Material Subsidiary 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).
(o) TANGIBLE NET WORTH. The Borrowers shall, as at the last day of
each Fiscal Quarter, maintain Tangible Net Worth in an amount
greater than the aggregate of:
(i) an amount expressed in U.S. dollars which is equal to
75% of the Tangible Net Worth of Kinross Canada as at
December 31, 2004, following the completion of the
Paracatu Transaction, as shown on the consolidated
balance sheet of Kinross Canada as at such date; and
(ii) the aggregate of 50% of Net Income for each Fiscal
Quarter after the Fiscal Quarter ending December 31,
2004 which has been completed on or before the date of
determination and, for the purposes of this covenant,
- 81 -
(x) if Net Income for any Fiscal Quarter is a negative
amount, it shall be deemed to be equal to zero and (y)
Net Income shall be calculated for Kinross Canada on a
consolidated basis.
(p) INTEREST COVERAGE RATIO. The Borrowers shall, for each Fiscal
Quarter, maintain the Interest Coverage Ratio in an amount
greater than or equal to 4.5:1.
(q) LEVERAGE RATIO. The Borrowers shall, for each Fiscal Quarter,
maintain the Leverage Ratio in an amount less than or equal to
3.0:1.
(r) [INTENTIONALLY DELETED]
(s) PROVEN AND PROBABLE RESERVES. As at the last day of each Fiscal
Quarter, the forecast of the aggregate Reserves from producing
properties to the extent of the interests of the Companies
therein (excluding those properties located in Russia, Greece or
Zimbabwe) which will exist on the date immediately following the
Maturity Date shall exceed 6,000,000 ounces.
(t) FORT XXXX MINE. Kinross Canada shall, directly or indirectly, at
all times maintain 100% ownership of the Fort Xxxx Mine.
(u) INTERCOMPANY INDEBTEDNESS. The Borrowers shall cause all
Indebtedness owing by any Obligor to any direct or indirect
Subsidiary of Kinross Canada (other than to another Obligor) to
be subordinated and postponed, pursuant to the Postponement and
Subordination Undertaking, to the Secured Obligations of such
Obligor for so long as a Default has occurred and is continuing.
(v) INVESTMENT ACCOUNTS. The Borrowers shall, and shall cause each
Guarantor (other than TVX Brazil and Rio Paracatu) to, maintain
all cash and Cash Equivalents in the Investment Accounts. The
Borrowers shall forthwith notify the Administrative Agent of any
Investment Account established after the date hereof with a
financial institution other than the Lenders and shall further
provide to the Administrative Agent the requested form of
acknowledgement from such other financial institution with
respect to such Investment Account. The Borrowers shall cause
the Non-Guaranteeing Subsidiaries and the Obligors (including,
without limitation, TVX Brazil and Rio Paracatu) that do not
maintain an Investment Account to promptly Distribute all cash
balances, subject to appropriate working capital reserves,
capital expenditures and exploration expenditures, to an Obligor
that maintains an Investment Account.
(w) ERISA. The Borrowers shall, and shall cause each ERISA Affiliate
to, furnish to the Administrative Agent:
(i) promptly after receipt thereof (but in no event later
than 30 days after such receipt), a copy of any notice
any ERISA Company receives after the date of this
agreement from the PBGC relating to the intention of the
PBGC to terminate any Plan or Plans or to appoint a
trustee to administer any Plan
- 82 -
or Plans, if such termination or appointment would
result in a Material Adverse Effect;
(ii) within 10 days after the due date for filing with the
PBGC pursuant to Section 412(n) of the Code of a notice
of failure to make a required instalment or other
payment with respect to a Plan, a statement of a
financial officer setting forth details as to such
failure and the action proposed to be taken with respect
thereto, together with a copy of such notice given to
the PBGC, but only if such failure to make a required
instalment would result in a Material Adverse Effect;
and
(iii) promptly and in any event within 30 days after receipt
thereof by any ERISA Company from the sponsor of a
Multiemployer Plan, a copy of each notice received by
any ERISA Company concerning (A) the imposition of any
Withdrawal Liability or (B) a determination that a
Multiemployer Plan is, or is expected to be, terminated
or in reorganization, in each case within the meaning of
Title IV of ERISA, but only if the imposition of such
withdrawal liability, in the case of clause (A), or such
termination or reorganization, in the case of clause
(B), would result in a Material Adverse Effect.
(x) BOOKS AND RECORDS. The Borrowers shall, and shall cause the
Material Subsidiaries 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 generally accepted
accounting principles and permit representatives of the
Administrative Agent to inspect such books of account, records
and documents and to make copies therefrom during reasonable
business hours and upon reasonable notice and to discuss the
affairs, finances and accounts of such Company with its auditors
during reasonable business hours and upon reasonable notice.
(y) NOTICE OF DEFAULT OR EVENT OF DEFAULT. Upon the occurrence of
either a Default or an Event of Default of which any Borrower is
aware, such Borrower shall promptly deliver to the
Administrative Agent a notice specifying the nature and date of
occurrence of such Default or Event of Default, such Borrower's
assessment of the duration and effect thereof and the action
which such Borrower proposes to take with respect thereto.
(z) MATERIAL CONTRACTS. The Borrower shall provide to the
Administrative Agent a copy of each amendment to any of the
provisions of any of the Material Contracts at the time that it
delivers its next Compliance Certificate pursuant to Section
11.1(a).
(aa) ADDITIONAL GUARANTORS. Upon the direct or indirect formation or
acquisition by Kinross Canada of a Material Subsidiary or upon a
Subsidiary of Kinross Canada becoming a Material Subsidiary,
unless such Subsidiary is already an Obligor,
- 83 -
one of the Greek, Russian and Zimbabwian Subsidiaries or such
Subsidiary is designated in writing as a Non-Guaranteeing
Subsidiary by the Majority Lenders:
(i) Kinross Canada shall forthwith cause such Subsidiary to
duly execute and deliver to the Administrative Agent the
Guarantee to which it is a party;
(ii) Kinross Canada shall forthwith deliver, or cause to be
delivered to, the Administrative Agent, in form and
substance satisfactory to the Administrative Agent:
(A) a duly certified copy of the articles of
incorporation, articles of amalgamation or
similar documents and by-laws of such
Subsidiary;
(B) a certificate of status or good standing for
such Subsidiary issued by the appropriate
governmental body or agency of the jurisdiction
in which such Subsidiary is incorporated;
(C) a duly certified copy of the resolution of the
board of directors of such Subsidiary
authorizing it to execute, deliver and perform
its obligations under each Credit Document to
which such Subsidiary is a signatory and a duly
certified copy of the resolution of the board of
directors (if required under the constating
documents or by-laws of such Subsidiary) of such
Subsidiary authorizing the pledge of all of its
issued and outstanding shares to the
Administrative Agent and any subsequent
disposition thereof by the Administrative Agent
in realizing on the security therein constituted
by the relevant Security Documents;
(D) a certificate of an officer of such Subsidiary,
in such capacity, setting forth specimen
signatures of the individuals authorized to sign
the Credit Documents to which such Subsidiary is
a signatory;
(E) share certificates representing all of the
issued and outstanding such Subsidiary, in each
case duly endorsed in blank for transfer or
attached to duly executed stock transfers and
powers of attorney;
(F) copies of insurance policies, riders and
endorsements, insurance binders, certificates of
insurance and statements of coverage with
respect to the insurance referred to in Section
11.1(d);
(G) an opinion of such Subsidiary's counsel
addressed to the Lenders, the Administrative
Agent and its counsel, relating to the status
and capacity of such Subsidiary, the due
authorization, execution and delivery and the
validity and enforceability of the Credit
Documents to which such Subsidiary is a party in
the jurisdiction of incorporation of such
Subsidiary and in the Province of Ontario
- 84 -
and such other matters as the Administrative
Agent may reasonably request; and
(H) an opinion of the Administrative Agent's counsel
with respect to such matters as may be
reasonably required by the Administrative Agent
in connection with such Subsidiary (including,
without limitation, the legality, validity and
binding nature of the obligations of such
Subsidiary under, and the enforceability against
such Subsidiary of, the Credit Documents which
are governed by the laws of the Province of
Ontario);
(iii) Kinross Canada shall forthwith cause such additional
Security Documents or amendments to existing Security
Documents to be executed and delivered to permit the
pledge of the shares of such Subsidiary;
(iv) 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; and
(v) all documents and instruments shall have been properly
registered, recorded and filed in all places which,
searches shall have been conducted in all jurisdictions
which, and deliveries of all consents, approvals,
acknowledgements, undertakings, directions, negotiable
documents of title and other documents and instruments
to the Administrative Agent shall have been made which,
in the opinion of the Administrative Agent's counsel,
acting reasonably, are desirable or required to make
effective the Security created or intended to be created
pursuant to Section 11.1(aa)(iii) and to ensure the
perfection and the intended first-ranking priority of
such Security;
whereupon such Subsidiary shall become an Additional Guarantor
for all purposes of this agreement.
(bb) ADDITIONAL BORROWERS. By written notice given to the
Administrative Agent with the written consent of all of the
Lenders in their sole and absolute discretion, Kinross Canada
may designate any wholly-owned Subsidiary as an Additional
Borrower and such Subsidiary shall become an Additional Borrower
upon the satisfaction of the following conditions:
(i) Kinross Canada shall forthwith:
(A) cause such Subsidiary to duly execute and
deliver to the Administrative Agent the Borrower
Guarantee to which it is a party as well as a
Borrower Instrument of Adhesion;
- 85 -
(B) cause such Subsidiary, as continuing collateral
security for its Secured Obligations, to duly
execute and deliver to the Administrative Agent
the Security Documents to which it is a
signatory;
(C) deliver, or cause to be delivered to, the
Administrative Agent, in form and substance
satisfactory to the Administrative Agent:
(I) a duly certified copy of the articles of
incorporation, articles of amalgamation
or similar documents and by-laws of such
Subsidiary;
(II) a certificate of status or good standing
for such Subsidiary issued by the
appropriate governmental body or agency
of the jurisdiction in which such
Subsidiary is incorporated;
(III) a duly certified copy of the resolution
of the board of directors of such
Subsidiary authorizing it to execute,
deliver and perform its obligations
under each Credit Document to which such
Subsidiary is a signatory and a duly
certified copy of the resolution of the
board of directors (if required under
the constating documents or by-laws of
such Subsidiary) of such Subsidiary
authorizing the pledge of all of its
issued and outstanding shares to the
Administrative Agent and any subsequent
disposition thereof by the
Administrative Agent in realizing on the
security therein constituted by the
relevant Security Documents;
(IV) a certificate of an officer of such
Subsidiary, in such capacity, setting
forth specimen signatures of the
individuals authorized to sign the
Credit Documents to which such
Subsidiary is a signatory;
(V) share certificates representing all of
the issued and outstanding such
Subsidiary, in each case duly endorsed
in blank for transfer or attached to
duly executed stock transfers and powers
of attorney;
(VI) copies of insurance policies, riders and
endorsements, insurance binders,
certificates of insurance and statements
of coverage with respect to the
insurance referred to in Section
11.1(d);
(VII) an opinion of such Subsidiary's counsel
addressed to the Lenders, the
Administrative Agent and its counsel,
relating to the status and capacity of
such Subsidiary, the due authorization,
execution and delivery and the validity
- 86 -
and enforceability of the Credit
Documents to which such Subsidiary is a
party in the jurisdiction of
incorporation of such Subsidiary and in
the Province of Ontario and such other
matters as the Administrative Agent may
reasonably request; and
(VIII) an opinion of the Administrative Agent's
counsel with respect to such matters as
may be reasonably required by the
Administrative Agent in connection with
such Subsidiary (including, without
limitation, the legality, validity and
binding nature of the obligations of
such Subsidiary under, and the
enforceability against such Subsidiary
of, the Credit Documents which are
governed by the laws of the Province of
Ontario);
(ii) Kinross Canada shall forthwith cause such additional
Security Documents or amendments to existing Security
Documents to be executed and delivered to permit the
pledge of the shares of such Subsidiary;
(iii) 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; and
(iv) all documents and instruments shall have been properly
registered, recorded and filed in all places which,
searches shall have been conducted in all jurisdictions
which, and deliveries of all consents, approvals,
acknowledgements, undertakings, directions, negotiable
documents of title and other documents and instruments
to the Administrative Agent shall have been made which,
in the opinion of the Administrative Agent's counsel,
acting reasonably, are desirable or required to make
effective the Security created or intended to be created
by such Subsidiary in favour of the Administrative Agent
pursuant to the Security Documents and to ensure the
perfection and the intended first-ranking priority of
such security.
11.2 RESTRICTIVE COVENANTS
The Borrowers 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 14.14:
(a) LIENS. The Borrowers shall not, and shall not permit or suffer
any Material Subsidiary 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.
- 87 -
(b) CORPORATE EXISTENCE. The Borrowers shall not, and shall not
permit or suffer any Material Subsidiary to, take part in any
amalgamation, merger, dissolution, winding up, corporate
reorganization, capital reorganization or similar proceeding or
arrangement or discontinue any businesses; provided, however,
that the foregoing shall not prohibit amalgamations or corporate
reorganizations solely between two or more Material Subsidiaries
provided (x) notice of such amalgamation or corporate
reorganization (and reasonable details thereof) has been
provided by the Borrowers to the Administrative Agent ten
Banking Days before the proposed implementation date of such
amalgamation or corporate reorganization, (y) at the time of the
delivery of the aforesaid notice by the Borrowers to the
Administrative Agent, Kinross Canada delivers to the
Administrative Agent a certificate (I) certifying that the
implementation of such amalgamation or corporate reorganization
will not have a Material Adverse Effect and (II) in which
Kinross Canada shall covenant to deliver or cause to be
delivered to the Administrative Agent, within two Banking Days
of the completion of such amalgamation or corporate
reorganization, all certificates, opinions and other things as
the Administrative Agent may reasonably request to ensure the
completion of such amalgamation or corporate reorganization
shall not adversely affect any rights of the Administrative
Agent or any of the Lenders under any Guarantee or any Security
Document and (z) no Default or Event of Default has occurred and
is continuing at the time of such proposed amalgamation or
corporate reorganization and no Default or Event of Default
would arise immediately thereafter. For certainty, any
amalgamation or other corporate reorganization between a
Material Subsidiary incorporated under the laws of the Cayman
Islands and another Subsidiary incorporated under the laws of
the Cayman Islands which is not a Material Subsidiary shall be
permitted pursuant to this Section 11.2(b) subject to compliance
with the forgoing proviso.
(c) DISPOSITION OF ASSETS. The Borrowers shall not, and shall not
suffer or permit any of the Material Subsidiaries to, sell,
transfer or otherwise dispose (by way of Sale Leaseback or
otherwise) of any of their respective assets other than as set
forth in Schedule O. The Administrative Agent shall execute and
deliver, at the sole expense of the Borrowers, all such partial
releases and discharges as the Borrowers may reasonably require
in respect of any sale or other disposition of property
permitted hereunder.
(d) [INTENTIONALLY DELETED]
(e) GOLD HEDGING CONTRACTS. The Borrowers shall not, and shall not
suffer or permit the Material Subsidiaries to, have outstanding
any gold hedging contracts which create matured or contingent
obligations to deliver gold in the aggregate in excess of 75% of
the projected production of the Companies in any future 12 month
period, such projected production (x) to be based upon the most
recent budget of Kinross Canada delivered to the Administrative
Agent pursuant to Section 11.1(a)(vi), such budget to be in
substantially the form previously delivered by Kinross Canada to
the Administrative Agent and (y) to be based on assumptions
acceptable to the Majority Lenders, acting reasonably.
- 88 -
(f) REGULATION U OR X. The Borrowers shall not, and shall not suffer
or permit any Material Subsidiary to, engage in the business of
extending credit for the purpose of purchasing or carrying
margin stock. The Borrowers shall not use any of the proceeds of
any credit extended hereunder to "purchase" or "carry" any
"margin stock" as defined in Regulation U of the F.R.S. Board.
(g) HEDGING AGREEMENTS. The Borrowers shall not, and shall not
suffer or permit any Material Subsidiary to, enter into any
Hedging Agreement or derivative contract for speculative
purposes or enter into any Hedging Agreement with any
counterparty on a margined basis. Each Lender hereby consents to
all Liens created by any Security Documents in any rights of any
Obligors in or to any Hedging Agreements to which such Lender is
a party.
(h) AMENDMENTS. The Borrowers shall not suffer or permit any
termination of any of the Material Contracts and, except in
accordance with commercially reasonable and prudent mining
practices, shall not suffer or permit any amendment,
modification, supplement, replacement or waiver of a material
nature to or of any provision of any Material Contract. The
Borrowers shall not, and shall not suffer or permit any of the
Material Subsidiaries 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, provided that the Borrowers are not in default
of such reporting obligation.
(i) DISTRIBUTIONS. Except as set forth in the following sentence,
the Borrowers shall not, and shall not suffer or permit the
Material Subsidiaries to, make any Distribution (except to an
Obligor). The Borrowers may make, suffer or permit the following
Distributions:
(i) scheduled payments of interest with respect to any
Indebtedness of an Obligor which is subordinated to the
Secured Obligations of such Obligor;
(ii) Distributions not to exceed U.S. $3,100,000 in the
aggregate with respect to the redemption of the
redeemable, retractable preferred shares of Kinross
Canada, provided always that any such Distribution is in
accordance with the terms of such shares as they existed
as of March 8, 2000 and the source of funds for such
Distributions is the issuance of common equity;
(iii) Distributions with respect to the Series B Shares of
Kinam Gold (without duplication) as follows:
(A) Distributions with respect to the payment of
dividends with respect thereto, provided always
that such Distributions do not exceed U.S.
$1,000,000 in the aggregate in any Fiscal Year;
(B) Distributions with respect to the payment of
accrued but unpaid dividends with respect
thereto, provided always that such Distributions
do not exceed U.S. $7,000,000 in the aggregate;
and
- 89 -
(C) Distributions with respect to the repurchase
thereof, provided always that such Distributions
do not exceed U.S. $15,000,000 in the aggregate;
(iv) Distributions with respect to the payment of dividends
with respect to the redeemable, retractable preferred
shares of Kinross Canada, provided always that any such
Distribution is in accordance with the terms of such
shares as they existed as of March 8, 2000; and
(v) Distributions with respect to the payment of dividends
with respect to the common shares of Kinross Canada,
provided always that such Distributions do not exceed
U.S. $30,000,000 in the aggregate in any Fiscal Year;
in each case provided (x) no Default has occurred and is
continuing at the time of making any such Distribution and (y)
no Default would arise immediately after the making of any such
Distribution.
(j) INDEBTEDNESS. The Borrowers shall not, and shall not suffer or
permit any Material Subsidiary to, create, incur, assume or
suffer to exist any Indebtedness other than Permitted
Indebtedness.
(k) INVESTMENTS. The Borrowers shall not, and shall not permit any
of the Material Subsidiaries to, make any Investments in any
Person, except:
(i) extensions of trade credit and asset purchases in the
ordinary course of business;
(ii) Permitted Portfolio Investments;
(iii) to the extent permitted by applicable law, loans and
advances to officers, directors and employees of any
Company (i) to finance the purchase of Shares of Kinross
Canada provided that the aggregate principal amount of
such loans and advances made in connection with all such
acquisitions shall not exceed U.S. $1,000,000 and (ii)
for additional purposes not contemplated by clause (i)
above in an aggregate principal amount at any time
outstanding with respect to this clause (ii) not
exceeding U.S. $2,000,000.
(iv) Investments constituting non-cash proceeds of sales,
transfers and other dispositions of assets to the extent
permitted by Section 11.2(c);
(v) Investments in any Obligor;
(vi) additional Investments in an aggregate amount not in
excess of $50,000,000 in any Fiscal Year provided that
any such Investment is in the same line of business as
the Obligors and for fair market value; and in
- 90 -
each case, at a time when no Default has occurred and is
continuing or would arise as a result of such
Investment; and
(vii) any Investment to the extent that payment for such
Investment is made solely with Shares of Kinross Canada
provided no Default has occurred and is continuing at
the time of the making of such Investment or would arise
as a result of such Investment.
(l) ACQUISITIONS. The Borrowers shall not, and shall not suffer or
permit any Material Subsidiary to, make any Acquisitions other
than Permitted Acquisitions.
11.3 PERFORMANCE OF COVENANTS BY ADMINISTRATIVE AGENT
The Administrative Agent may, on the instructions of the Majority
Lenders and upon notice by the Administrative Agent to the Borrowers, perform
any covenant of the Borrowers under this agreement which the Borrowers fail 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 the Borrowers and no such performance
by the Administrative Agent shall require the Administrative Agent to further
perform the Borrowers' 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 Global Pro Rata Shares and shall be repaid by the Borrowers to the
Administrative Agent on behalf of the Lenders on demand.
ARTICLE 12
CONDITIONS PRECEDENT TO OBTAINING CREDIT
12.1 CONDITIONS PRECEDENT TO ALL CREDIT
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 relevant Borrower shall have complied with the requirements
of Article 4, Article 5 or Article 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 Borrowers 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 (representations and
warranties made as of the date hereof shall continue to refer to
the date of this agreement and not to the date that the
representations and warranties are deemed to have been repeated
and representations and warranties that will change as a result
of a transaction permitted hereby shall be deemed to have been
amended to reflect such change provided that the Borrowers are
not in default of their
- 91 -
obligations to provide written notice thereof in accordance with
Section 11.1(a) or (i)); and
(d) the Credit Facility has not been terminated pursuant to Section
2.5.
12.2 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT
This agreement shall become effective upon the fulfilment of the
following conditions precedent on or before April 30, 2005:
(a) the conditions precedent set forth in Section 12.1 have been
fulfilled;
(b) the Obligors have duly executed and delivered to the
Administrative Agent a confirmation of the Guarantees, the
Borrower Guarantees, the Security Documents, in form and
substance satisfactory to the Administrative Agent and any other
amendments thereto as the Administrative Agent may require in
connection with the amendment and restatement of the Existing
Credit Agreement constituted hereby;
(c) the Administrative Agent has received, in form and substance
satisfactory to the Administrative Agent:
(i) a duly certified copy of the articles of incorporation,
articles of amalgamation or similar documents and
by-laws of each Borrower;
(ii) a certificate of status or good standing for each
Borrower issued by the appropriate governmental body or
agency of the jurisdiction in which such Obligor is
incorporated;
(iii) a duly certified copy of the resolution of the board of
directors of each Borrower authorizing it to execute,
deliver and perform its obligations under each Credit
Documents to which such Obligor is a signatory;
(iv) a certificate of an officer of each of the Borrower, in
such capacity, setting forth specimen signatures of the
individuals authorized to sign the Credit Documents to
which such Obligor is a signatory;
(v) a certificate of a senior officer of Kinross Canada, 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;
(vi) an opinion of counsel to each Borrower addressed to the
Lenders, the Administrative Agent and its counsel,
relating to the status and capacity of such Obligor, the
due authorization, execution and delivery and the
validity and enforceability of the Credit Documents to
which such Obligor is a party in the jurisdiction of
incorporation of such Obligor and in the
- 92 -
Province of Ontario and such other matters as the
Administrative Agent may reasonably request; and
(vii) an opinion of the Administrative Agent's counsel with
respect to such matters as may be reasonably required by
the Administrative Agent in connection with the
transactions hereunder (including, without limitation,
the legality, validity and binding nature obligations of
each Borrower under, and the enforceability against such
Obligors of, the Credit Documents which are governed by
the laws of the Province of Ontario);
(d) there has not occurred a Material Adverse Change;
(e) the Lenders shall be satisfied, in their sole and absolute
discretion, with their review of Kinross Canada consolidated
base case financial projections and capitalization, which
financial projections and capitalization shall be in form and
scope satisfactory to the Lenders:
(f) 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;
(g) all documents and instruments shall have been properly
registered, recorded and filed in all places which, searches
shall have been conducted in all jurisdictions which, and
deliveries of all consents, approvals, acknowledgements,
undertakings, directions, negotiable documents of title and
other documents and instruments to the Administrative Agent
shall have been made which, in the opinion of the Administrative
Agent's counsel, acting reasonably, are desirable or required 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 first-ranking priority of such security; and
(h) the Borrowers shall have paid to the Lead Arranger, the
Administrative Agent and the Lenders all fees and expenses
required to be paid on or before this agreement becoming
effective.
12.3 WAIVER
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.
- 93 -
ARTICLE 13
DEFAULT AND REMEDIES
13.1 EVENTS OF DEFAULT
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 any Borrower of the provisions of Section 9.1;
(b) the failure of any Obligor to pay any amount due under the
Credit Documents (other than amounts due pursuant to Section
9.1) within five Banking Days after the payment is due;
(c) the commencement by any Company or Mine Owner or by any other
Person of proceedings for the dissolution, liquidation or
winding up of such Company or Mine Owner or for the suspension
of operations of such Company or Mine Owner (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 or Mine Owner 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 any Obligor in this
agreement or in any other document, agreement or instrument
delivered pursuant hereto or referred to herein or any material
information furnished in writing to the Administrative Agent by
any Obligor proves to have been incorrect in any material
respect when made or furnished and continues to be incorrect in
any material respect for thirty days after the Administrative
Agent has given Kinross Canada notice thereof;
(f) if a writ, execution, attachment or similar process is issued or
levied against all or any portion of the property of Obligor in
connection with any judgment against it in an amount of at least
$10,000,000, and such writ, execution, attachment or
- 94 -
similar process is not released, bonded, satisfied, discharged,
vacated or stayed within thirty days after its entry,
commencement or levy;
(g) the breach or failure of due observance or performance by any
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 ten Banking Days after
the Administrative Agent has given Kinross Canada notice of such
breach or failure;
(h) if one or more encumbrancers, liens or landlords take possession
of any part of the property of any Obligor 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 $3,000,000;
(i) if an event of default under any one or more agreements,
indentures or instruments, under which any Company has
outstanding Indebtedness (other than Non-Recourse Indebtedness)
in an amount of at least $25,000,000 or under which another
Person has outstanding Indebtedness in an amount of at least
$25,000,000 which is guaranteed by any Company, shall happen
(with all applicable grace periods having expired) and be
continuing, or if any Indebtedness of or guaranteed by any
Company in an amount of at least $25,000,000 which is payable on
demand is not paid on demand;
(j) if any Company shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of
any Indebtedness in an amount of at least $25,000,000 when and
as the same shall become due and payable after giving effect to
any applicable grace periods and such failure is continuing;
(k) any Person or combination of Persons acting in concert acquires
direct or indirect beneficial ownership of more than 50% of the
outstanding voting securities of Kinross Canada;
(l) any ERISA Company shall fail to pay when due an amount or
amounts aggregating in excess of $1,000,000 which it shall have
become liable to pay under Section 4062, 4063 or 4064 of ERISA;
or notice of intent to terminate a Plan shall be filed under
Title IV of ERISA by any ERISA Company, any plan administrator
or any combination of the foregoing if such termination would
result in a Material Adverse Effect; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to
administer any Plan, if such action by the PBGC would result in
a Material Adverse Effect; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one
- 95 -
or more Multiemployer Plans which could cause one or more ERISA
Companies to incur a current annual payment obligation in excess
of $1,000,000;
(m) the breach or failure of due observance by any of the
Subsidiaries of the Borrowers (other than the Companies) of any
of the covenants or provisions under the Postponement and
Subordination Undertaking;
(n) 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 any Obligor which is a 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; or
(o) a Material Adverse Change occurs;
the Administrative Agent (with the approval and instructions of the Majority
Lenders) may, by notice to the Borrowers, 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
Borrowers, declare all indebtedness of the Borrowers to the Lenders pursuant to
this agreement (including (i) the present value of the face amount of all
Bankers' Acceptances issued and outstanding hereunder based on their respective
maturity dates, such present value to be calculated using a discount rate equal
to the yield of Government of Canada treasury bills having a similar maturity
date and (ii) 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 Borrowers (provided, however, that all such
indebtedness of the Borrowers 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 Canadian Borrowers to the Canadian Lenders of the
present value of the face amount of all Bankers' Acceptances issued and
outstanding hereunder, the Canadian Borrowers shall have no further liability to
the Canadian Lenders with respect to such Bankers' Acceptances. Upon the payment
by the Borrowers to the Issuing Lender of the then contingent liability under
all outstanding Letters, the Borrowers shall have no further liability to the
Issuing Lender with respect to such Letters.
13.2 REFUND OF OVERPAYMENTS
With respect to each Letter for which the Issuing Lender has been paid
all of its contingent liability pursuant to Section 9.1, 9.6 or Section 13.1 and
provided that all amounts due
- 96 -
by the Borrowers to the Issuing Lender under Section 9.1, 9.6 and Section 13.1
have been paid, the Issuing Lender agrees to pay to the Borrowers, 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).
13.3 REMEDIES CUMULATIVE
The Borrowers expressly agree 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.
13.4 SET-OFF
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,
- 97 -
at any time that an Event of Default and has occurred and is continuing without
notice to the Borrowers or to any other person, any such notice being expressly
waived by the Borrowers, 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 the Borrowers against and on account
of the obligations and liabilities of the Borrowers which are due and payable to
the Administrative Agent or such Lender, as the case may be, under the Finance
Documents.
ARTICLE 14
THE ADMINISTRATIVE AGENT
14.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT
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.
14.2 INTEREST HOLDERS
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
15.5 as the holder of all of the interests of such Lender under the Credit
Documents.
14.3 CONSULTATION WITH COUNSEL
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.
14.4 DOCUMENTS
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.
- 98 -
14.5 ADMINISTRATIVE AGENT AS LENDER
With respect to those portions 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 Borrowers and their Affiliates and persons doing business with the
Borrowers and/or any of their Affiliates as if it were not the Administrative
Agent and without any obligation to account to the Lenders therefor.
14.6 RESPONSIBILITY OF ADMINISTRATIVE AGENT
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 a Borrower 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.
14.7 ACTION BY ADMINISTRATIVE AGENT
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 Guarantees, the Borrower Guarantees or 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 Borrowers shall at no time be obliged to
enquire as to the right or authority of the Administrative Agent to so notify or
act.
14.8 NOTICE OF EVENTS OF DEFAULT
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
- 99 -
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.
14.9 RESPONSIBILITY DISCLAIMED
The Administrative Agent shall be under no liability or responsibility
whatsoever as agent hereunder:
(a) to any Borrower 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;
(b) to any Lender or Lenders as a consequence of any failure or
delay in performance by, or any breach by, any Borrower of any
of its obligations under any of the Credit Documents; or
(c) to any Lender or Lenders for any statements, representations or
warranties in any of the Credit Documents or in any other
documents contemplated thereby or in any other information
provided pursuant to any of the Credit Documents or any other
documents contemplated thereby or for the validity,
effectiveness, enforceability or sufficiency of any of the
Credit Documents or any other document contemplated thereby.
14.10 INDEMNIFICATION
The Lenders agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrowers) 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 thereby or any action taken or
omitted by the Administrative Agent under any of the Credit Documents or any
document contemplated 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.
- 100 -
14.11 CREDIT DECISION
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
Borrowers, it is independently taking whatever steps it
considers necessary to evaluate the financial condition and
affairs of the Borrowers 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 a the Credit Facility is being
utilized by the Borrowers, it will continue to make its own
independent evaluation of the financial condition and affairs of
the Borrowers.
14.12 SUCCESSOR ADMINISTRATIVE AGENT
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 Borrowers (which consent shall not be required for so long as an
Event of Default has occurred and is continuing), resign at any time by giving
30 days written notice thereof to the Borrowers and the Lenders. Upon any such
resignation, the Majority Lenders, with the prior written consent of the
Borrowers (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 an Event of 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 Borrowers (which consent shall not be required for
so long as an Event of 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 Cdn. $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.
14.13 DELEGATION BY ADMINISTRATIVE AGENT
With the prior approval of the Majority Lenders, the Administrative
Agent shall have the right to delegate any of its duties or obligations
hereunder as Administrative Agent to
- 101 -
any Affiliate of the Administrative Agent so long as the Administrative Agent
shall not thereby be relieved of such duties or obligations.
14.14 WAIVERS AND AMENDMENTS
(a) Subject to Sections 14.14(b) and (c), any term, covenant or
condition of any of the Credit Documents may only be amended
with the prior consent of the Borrowers 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 with respect
to the Credit Facility;
(ii) extend the Maturity Date;
(iii) extend the time for the payment of interest on Loans,
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;
(v) reduce the stated amount or postpone the date for
payment of any fees or other amount to be paid pursuant
to Article 7 or Article 8 of this agreement;
(vi) permit any subordination of any of the Secured
Obligations;
(vii) release, discharge or amend the joint and several
covenant of the Borrowers hereunder, release or
discharge any of the Security Documents or the Security
or any of the Guarantees, in whole or in part, or
release any of the Secured Assets from the Security, in
whole or in part; or
(viii) alter the terms of this Section 14.14.
(c) No amendment to or waiver of any provision hereof to the extent
it affects the rights or obligations of the Administrative Agent
shall be effective without the prior written consent of the
Administrative Agent.
- 102 -
(d) Without the prior written consent of the Issuing Lender, no
amendment to or waiver of Article 14 or any other provision
hereof to the extent it affects the rights or obligations of the
Issuing Lender shall be effective.
(e) Without the prior written consent of the Bullion Fronting
Lender, no amendment to or waiver of Article 14 or any other
provision hereof to the extent it affects the rights or
obligations of the Bullion Fronting Lender shall be effective.
14.15 DETERMINATION BY ADMINISTRATIVE AGENT CONCLUSIVE AND BINDING
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.
14.16 ADJUSTMENTS AMONG LENDERS AFTER ACCELERATION
(a) The Lenders agree that, at any time after all indebtedness of
the Borrowers 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 Borrowers 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 Borrowers 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 the cancellation of termination thereof
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), other than as a result of the
netting of exposures of a Lender under
- 103 -
Hedging Agreements as contemplated in Section 14.19(c), on
account of any monies owing or payable by a Borrower to it under
the Finance Documents in excess of its pro rata share of
payments on account of monies owing by such Borrower to all the
Finance Parties thereunder.
(d) Each 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.
14.17 REDISTRIBUTION OF PAYMENT
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
relevant 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.
14.18 DISTRIBUTION OF NOTICES
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.
14.19 DETERMINATION OF EXPOSURES
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:
- 104 -
(a) the Exposure of a Lender under this agreement and the Security
Documents shall be the aggregate amount (expressed in United
States dollars) owing to such Lender thereunder on such date;
(b) the Exposure of a Lender in respect of a cash management
agreement shall be the amount (expressed in United States
dollars) which would be owing by the relevant Borrower
thereunder on such date if such agreement was terminated on such
date; and
(c) the Exposure of a Lender in respect of Hedging Agreements shall
be measured as the net exposure of such Lender under all Hedging
Agreements with all Borrowers to which such Lender is a party,
being the aggregate exposure of such Lender thereunder less the
aggregate exposure of the Borrowers thereunder; the exposure of
party to a Hedging Agreement shall be, in the case of a Hedging
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 Hedging Agreement in the event of the
early termination by such other party as of such date of such
Hedging 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 Hedging 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 Hedging Agreement, in each case expressed in United States
dollars.
14.20 DECISION TO ENFORCE SECURITY
The Security shall become enforceable as provided in Article 13 or,
after the Termination Date, as provided in the Secured Risk Management
Agreements. 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.
14.21 ENFORCEMENT
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.
14.22 APPLICATION OF CASH PROCEEDS OF REALIZATION
(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.
- 105 -
(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 the Guarantees 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 Borrowers or otherwise in
accordance with applicable law.
14.23 SECURITY DOCUMENTS
As continuing collateral security for the Secured Obligations, the
Borrowers shall, and shall cause the Guarantors to, execute and deliver the
Guarantees and the Security Documents. The Guarantees and 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.
14.24 [INTENTIONALLY DELETED]
14.25 SURVIVAL
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 the Termination Date until such time as both the
Termination Date and the Maturity Date have occurred.
- 106 -
14.26 DISCHARGE OF SECURITY
(a) To the extent a sale or other disposition of the Secured Assets
is permitted pursuant to the provisions hereof, the Lenders
hereby authorize the Administrative Agent, at the cost and
expense of the Borrowers, to execute such discharges and other
instruments which are necessary for the purposes of releasing
and discharging the security interest of the Lenders and the
Administrative Agent 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.
(b) The Security shall terminate on the later to occur of the
Termination Date and the Maturity Date unless the Security has
become enforceable in accordance with Section 14.20 at or prior
to such time, in which case the Security shall terminate when
the Secured Obligations have been fully satisfied. Upon the
Security terminating, the Administrative Agent shall execute and
deliver, at the sole expense of the Borrowers, all such
discharges and releases as the Borrowers may reasonably require
to give effect thereto.
ARTICLE 15
MISCELLANEOUS
15.1 NOTICES
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 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.
15.2 SEVERABILITY
Any provision hereof which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
- 107 -
15.3 COUNTERPARTS
This agreement may be executed in one or more 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.
15.4 SUCCESSORS AND ASSIGNS
This agreement shall enure to the benefit of and shall be binding upon
the parties hereto and their respective successors and permitted assigns.
15.5 ASSIGNMENT
(a) Neither the Credit Documents nor the benefit thereof may be
assigned by any Borrower.
(b) A Lender may at any time sell to one or more other persons
("Participants") 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 relevant Borrower shall remain unchanged, the Lender shall
remain solely responsible for the performance thereof and the
relevant Borrower shall continue to be obligated to the Lender
in connection with the Lender's rights under this agreement.
Each Borrower agrees that if amounts outstanding under this
agreement are due and unpaid, or shall have been declared to be
or shall have become due and payable upon the occurrence of an
Event of Default, or any Default which might mature into an
Event of Default, each Participant shall be deemed to have the
right of setoff in respect of its participating interest in
amounts owing under this agreement to the same extent as if the
amount of its participating interest were owing directly to it
as the relevant Lender under this agreement. Each Borrower also
agrees that each Participant shall be entitled to the benefits
of Article 8 with respect to its participation hereunder;
provided, that no Participant shall be entitled to receive any
greater amount pursuant to such Article than the Lender would
have been entitled to receive in respect of the amount of the
participation transferred by the Lender to such Participant had
no such transfer occurred.
(c) With the prior written consent of the Issuing Lender, of the
Bullion Fronting Lender and of the Administrative Agent, a
Lender may at any time sell all or any part of its rights and
obligations under the Credit Documents (but not less than
$5,000,000) to one or more Persons ("Purchasing Lenders"),
provided that such consent is not required in the case of the
sale by a Schedule II Lender to its Affiliate that is listed in
Schedule III to the BANK ACT (Canada) and further provided that
any Lender which comprises both a Canadian Lender and a U.S.
Lender may only sell all or any part of its rights and
obligations under the Credit Documents to a Purchasing Lender
which comprises both a Canadian Lender and a U.S. Lender. For
the avoidance of doubt, no such consents shall be required and
- 108 -
no such restriction shall apply in the case of a pledge or
assignment of a security interest in all or any portion of a
U.S. Lender's rights under this agreement to a Federal Reserve
Bank. 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 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 specific Individual Commitments and a specific address
and telefacsimile number for the purpose of notices as provided
in Section 15.1, unless and until the requisite consents to such
assignment have been obtained, unless and until a copy of a
fully executed copy of such instrument has been delivered to
each of the Administrative Agent and the Borrowers. 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, 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.
(d) Each Borrower authorizes 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 financial information in their possession concerning
such Borrower which has been delivered to them by or on behalf
of the Borrowers pursuant to this agreement or which has been
delivered to them by or on behalf of the Borrowers 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 non-brokerage affiliates, employees,
accountants or legal counsel, unless required by law.
15.6 ENTIRE AGREEMENT
This agreement and the agreements referred to herein and delivered
pursuant hereto (including, without limitation, the Fee Letters) 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 hereof.
15.7 FURTHER ASSURANCES
The Borrowers 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 for more effectually perfecting the Security
- 109 -
and implementing and carrying out the true intent and meaning of the Credit
Documents or any agreement delivered pursuant thereto and such additional
Security Documents in connection with the property, assets and undertakings of
the Obligors, in form and substance satisfactory to the Administrative Agent, as
the Administrative Agent may from time to time reasonably request, to ensure (i)
each Guarantor has executed and delivered a Guarantee and Security Documents,
(ii) the property, assets and undertakings of each Obligor are subject to a Lien
in favour of the Administrative Agent pursuant to one or more Security Documents
to the extent provided in the Security Documents and (iii) the intended first
ranking priority of such Liens.
15.8 JUDGMENT CURRENCY
(a) If, for the purpose of obtaining or enforcing judgment against
any Borrower in any court in any jurisdiction, it becomes
necessary to convert into a particular currency (such currency
being hereinafter in this Section 15.8 referred to as the
"Judgment Currency") an amount due in another currency (such
other currency being hereinafter in this Section 15.8 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 15.8(a)(ii) being hereinafter in this
Section 15.8 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 15.8(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 Borrowers 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 Borrowers under the provisions of
Section 15.8(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 15.8 means the noon
spot rate of exchange for Canadian interbank transactions
applied in converting the
- 110 -
Indebtedness Currency into the Judgment Currency published by
the Bank of Canada for the day in question.
(e) For the purposes of this Section 15.8, Gold shall be deemed to
be a currency and "rate of exchange" shall include, where
appropriate, paragraph (b) of the definition of the Spot Price.
15.9 NOTICE OF REMEDIES
Each Borrower is personally obligated and fully liable for all amounts
due by it under this agreement. The Administrative Agent, the Lenders or any of
them has the right to xxx on this agreement and obtain a personal judgment
against the Borrowers or any of them for satisfaction of the amount due
hereunder either before or after a judicial foreclosure of the Fort Xxxx Deposit
Deed of Trust, the Xxxx Xxxx Deposit Deed of Trust, the True North Deposit Deed
of Trust or any of them (as the same are described in Schedule K) under Alaska
Statutes 09.45.170-09.45.220.
15.10 WAIVERS OF JURY TRIAL
THE BORROWERS, THE LENDERS AND THE ADMINISTRATIVE AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH IT
IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN.
- 111 -
IN WITNESS WHEREOF the parties hereto have executed and delivered this
agreement on the date first written above.
Kinross Gold Corporation KINROSS GOLD CORPORATION
52nd Floor, Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
By: (SIGNED) XXXX-XXXX XXXXXXXXX
------------------------------------
Attention: Xxxx-Xxxx Xxxxxxxxx,
Executive Vice
President & Chief
Financial Officer and
Xxxxxxx Xxxxxxx, Director
of Treasury
By: (SIGNED) XXXXXXX XXXXX
------------------------------------
Telefax: (000) 000-0000
Kinross Gold U.S.A., Inc. KINROSS GOLD U.S.A., INC.
x/x Xxxxxxx Xxxx Xxxxxxxxxxx
00xx Xxxxx, Xxxxxx Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
By: (SIGNED) XXXX-XXXX XXXXXXXXX
------------------------------------
Attention: Xxxx-Xxxx Xxxxxxxxx,
Executive Vice
President & Chief
Financial Officer and
Xxxxxxx Xxxxxxx, Treasurer
By: (SIGNED) XXXXXXX XXXXX
------------------------------------
Telefax: (000) 000-0000
Fairbanks Gold Mining, Inc. FAIRBANKS GOLD MINING, INC.
x/x Xxxxxxx Xxxx Xxxxxxxxxxx
00xx Xxxxx, Xxxxxx Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
By: (SIGNED) XXXX-XXXX XXXXXXXXX
-------------------------------------
Attention: Xxxx-Xxxx Xxxxxxxxx,
Executive Vice President
& Chief Financial Officer
and Xxxxxxx Xxxxxxx,
Treasurer By: (SIGNED) XXXXXXX XXXXX
-------------------------------------
Telefax: (000) 000-0000
Round Mountain Gold Corporation ROUND MOUNTAIN GOLD CORPORATION
x/x Xxxxxxx Xxxx Xxxxxxxxxxx
00xx Xxxxx, Xxxxxx Plaza By: (SIGNED) XXXX-XXXX XXXXXXXXX
00 Xxxx Xxxxxx Xxxx -------------------------------------
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx-Xxxx Xxxxxxxxx,
Executive Vice
President & Chief Financial
Officer and Xxxxxxx Xxxxxxx,
Treasurer By: (SIGNED) XXXXXXX XXXXX
-------------------------------------
Telefax: (000) 000-0000
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, AS
Corporate Banking - Loan Syndications ADMINISTRATIVE AGENT
00 Xxxx Xx. Xxxx - 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Managing Director By: (SIGNED) XXXXXX XXXXX
------------------------------------
Managing Director
Telefax: (000) 000-0000
with a copy to: By: (SIGNED) XXX XXXXXX
------------------------------------
Associate Director
Attention: Managing Director
Telefax: (000) 000-0000
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, AS CANADIAN
Corporate Banking - Mining LENDER
Scotia Plaza, 62nd Floor
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0 By: (SIGNED) XXXXXXX X. XXXX
------------------------------------
Director - Mining
Attention: Managing Director
Telefax: (000) 000-0000 By: (SIGNED) XXXXX XXXXXX
------------------------------------
Associate
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA
Atlanta Agency (ATLANTA AGENCY), AS U.S. LENDER
000 Xxxxxxxxx Xx. X.X.
Xxxxxxx, Xxxxxxx 00000 By: (SIGNED) XXXXXXX X. XXXXXXX
------------------------------------
Managing Director
Attention: Managing Director
Telefax: (000) 000-0000 By:
------------------------------------
Societe Generale (Canada) SOCIETE GENERALE (CANADA), AS CANADIAN
0000 XxXxxx Xxxxxxx Xxx. LENDER
Suite 1800
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Director By: (SIGNED) XXXXXXXX XXXXXXXXX
------------------------------------
Managing Director
Telefax: (000) 000-0000
By: (SIGNED) XXXXX XXXXXXX
------------------------------------
Managing Director
Societe Generale SOCIETE GENERALE, AS U.S. LENDER
1221 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Director By: (SIGNED) XXXXX KENSTOCK
------------------------------------
Director
Telefax: (000) 000-0000
By:
------------------------------------
Royal Bank of Canada ROYAL BANK OF CANADA, AS U.S. LENDER
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Manager By: (SIGNED) XXXXXX XXXXXX
------------------------------------
Attorney-in-Fact
Telefax: (000) 000-0000
By:
------------------------------------
Royal Bank of Canada ROYAL BANK OF CANADA, AS CANADIAN LENDER
Xxxxx Xxxx Xxxxx
X.X. Xxx 00, 200 Bay Street
0xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
Attention: Vice-President, Corporate
Banking By: (SIGNED) XXXXXXX XXXXXX
-------------------------------------
Authorized Signatory
Telefax: 000-000-0000
By:
-------------------------------------
Australia and New Zealand AUSTRALIA AND NEW ZEALAND BANKING GROUP
Banking Group Limited LIMITED, AS U.S. LENDER
1177 Avenue of the Americas
New York, New York, 10036
Attention: Vice President By: (SIGNED) XXXX X. XXXX
------------------------------------
Director
Telefax: (000) 000-0000
By:
------------------------------------
SCHEDULE A
LENDERS AND INDIVIDUAL COMMITMENTS
CANADIAN LENDERS U.S. LENDERS INDIVIDUAL COMMITMENT
The Bank of Nova Scotia The Bank of Nova Scotia, Atlanta U.S. $60,000,000
Agency
Societe Generale (Canada) Societe Generale U.S. $60,000,000
Royal Bank of Canada Royal Bank of Canada U.S. $60,000,000
Australia and New Zealand Banking U.S. $45,000,000
Group Limited
SCHEDULE B
COMPLIANCE CERTIFICATE
TO: THE BANK OF NOVA SCOTIA
I, ____________________, the [senior financial officer] of Kinross Gold
Corporation, hereby certify that:
1. I am the duly appointed [senior financial officer] of Kinross Gold
Corporation, a Borrower named in the amended and restated credit
agreement made as of April 8, 2005, as amended (the "Credit Agreement")
between Kinross Gold Corporation, Kinross Gold U.S.A., Inc., Fairbanks
Gold Mining, Inc., Round Mountain Gold Corporation, 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
Kinross Gold Corporation 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 amounts and
financial ratios as contained in Sections 11.01(o), (p), (q) and (s) of
the Credit Agreement are as follows and detailed calculations thereof
are attached hereto:
ACTUAL REQUIRED AMOUNT
AMOUNT
(a) Tangible Net Worth _______ See Section 11.1(o)
(b) Interest Coverage Ratio _______ = 4.5:1
(c) Leverage Ratio _______ = 3.0 to 1
(d) Reserves _______ > 6 million ounces
The attached calculation worksheet as at the relevant period ending
________ accurately sets out the information therein contained.
4. 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____.
----------------------------------------
(Signature)
----------------------------------------
(Name - please print)
----------------------------------------
(Title of Senior Financial Officer)
CALCULATION WORKSHEET
TANGIBLE NET WORTH
ACTUAL:
---------- ---------------------------------------------------------- -----------
Equity as of financial statements dated [ ] US$
---------- ---------------------------------------------------------- -----------
Plus (without duplication):
---------- ---------------------------------------------------------- -----------
Series B Preferred shares US$
---------- ---------------------------------------------------------- -----------
Subtotal:
---------- ---------------------------------------------------------- -----------
Less:
---------- ---------------------------------------------------------- -----------
Intangible assets US$( )
-
---------- ---------------------------------------------------------- -----------
Tangible Net Worth US$
---------- ---------------------------------------------------------- -----------
MINIMUM REQUIRED:
---------- ---------------------------------------------------------- -----------
Base Level US$
---------- ---------------------------------------------------------- -----------
Plus 50% of Net Income since December 31, 2004 US$
---------- ---------------------------------------------------------- -----------
---------- ---------------------------------------------------------- -----------
Minimum Level US$
---------- ---------------------------------------------------------- -----------
COMPLIANCE [Yes]/[No]
INTEREST COVERAGE RATIO
Rolling OCF US $ _________________________ (A)
Show adjustments for non-cash revenues and expenses of Kinross Canada on a
consolidated basis including deferred revenue and the difference between accrued
and cash reclamation costs:
Show reductions equal to cash reclamation costs for properties owned by any
Subsidiary of Kinross Canada which is neither an Obligor nor a Non-Recourse
Subsidiary:
Rolling Interest Expenses US $ ___________________________(B)
Interest Coverage Ratio (Actual) __________________ (A:B)
Interest Coverage Ratio (Min. Required): 4.5:1
COMPLIANCE [Yes]/[No]
LEVERAGE RATIO
INDEBTEDNESS:
DESCRIPTION AMOUNT
[ITEMIZE]
______________
Total Indebtedness U.S.$____________ (C)
CASH:
_________________
Cash Balance U.S.$___________________ (D)
Net Indebtedness (C - D) U.S.$__________________ (E)
Rolling OCF (amount (A) above) U.S. $ _______________ (A)
Leverage Ratio (Actual) _____________________ (E:A)
Leverage Ratio (Max. Permitted): 3.0:1
COMPLIANCE [Yes]/[No]
RESERVES
Mine Proven and Recovery Recoverable Amount Produced Remaining
Probable Factor reserves Since Previous Reserves
Reserves as of (2) (1) x (2) =(3) Yearend (4) (3)-(4)
Yearend (1)
1
2
3
__________
Reserves(Actual): _______oz.
Less: Projected Production to
Maturity
(______)oz
Reserves (Min. Required as at Maturity Date): 6,000,000 oz.
COMPLIANCE [Yes]/[No]
SIGNIFICANT MATERIAL SUBSIDIARIES
Itemize new Significant Material Subsidiaries since last compliance certificate
MATERIAL REAL PROPERTY
Itemize Material Real Property acquired since last compliance certificate
ASSET DISPOSITIONS
Itemize asset dispositions falling under Schedule O
COMPANY ASSETS GROSS PROCEEDS
[ITEMIZE]
Actual (N + O) U.S. $ _________________
Maximum Permitted U.S. $50,000,000
COMPLIANCE [Yes]/[No]
INVESTMENTS
Itemize Investments falling under Section 11.2(k)(vi)
COMPANY ASSETS GROSS PROCEEDS
[ITEMIZE]
PERMITTED ACQUISITIONS
Itemize Permitted Acquisitions
SCHEDULE C
FORM OF ASSIGNMENT
Dated __________, 20___
Reference is made to the Amended and Restated Credit Agreement made as
of April 8, 2005, as amended (the "Credit Agreement"), between Kinross Gold
Corporation, Kinross Gold U.S.A., Inc., Fairbanks Gold Mining, Inc. and Round
Mountain Gold Corporation, as borrowers, 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 with respect to the Credit
Facility is U.S. $___________ (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 U.S. $___________ (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 Companies
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 and the Borrowers 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 Borrowers and the Administrative Agent in accordance with
Section 15.5(c) of the Credit Agreement.
(d) The Assignee hereby agrees to the specific Individual Commitment
of U.S. $___________ 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 15.1 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.
(g) [THE ASSIGNEE NOTIFIES THE BORROWER, THE BULLION FRONTING LENDER
AND THE ADMINISTRATIVE AGENT THAT, AS A [CANADIAN LENDER/U.S.
LENDER/CANADIAN LENDER AND U.S. LENDER] AND UNTIL OTHERWISE
NOTIFIED BY THE ASSIGNEE, THE ASSIGNEE SHALL BE A NON-BULLION
LENDER.]
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.
[ASSIGNOR]
By:
--------------------------------------
Title:
[ASSIGNEE]
By:
--------------------------------------
Title:
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
By:
------------------------------------
Name:
Title:
Acknowledged and agreed to as of this ___________ day of ___________ , 20______.
THE BANK OF NOVA SCOTIA, AS BULLION FRONTING LENDER
By:
------------------------------------
Name:
Title:
SCHEDULE D
PRINCIPAL PLACE OF BUSINESS
--------------------------------------- ----------------------------------------
COMPANY ADDRESS
--------------------------------------- ----------------------------------------
Kinross Canada 52nd Floor, Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
--------------------------------------- ----------------------------------------
Kinross U.S.A. 000 Xxxxxx Xxxx Xxxxx
Xxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
--------------------------------------- ----------------------------------------
Fairbanks X.X. #0 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
--------------------------------------- ----------------------------------------
Kinam Gold 000 Xxxxxx Xxxx Xxxxx
Xxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
--------------------------------------- ----------------------------------------
Xxxxx Creek 000 Xxxxxx Xxxx Xxxxx
Xxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
--------------------------------------- ----------------------------------------
Round Mountain Round Mountain Operating Mine
X.X. Xxx 000
Xxxxx Xxxxxxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
--------------------------------------- ----------------------------------------
000 Xxxxxx Xxxx Xxxxx
XX Inc. Xxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
--------------------------------------- ----------------------------------------
Kinam Canada 52nd Floor, Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
--------------------------------------- ----------------------------------------
--------------------------------------- ---------------------------------------
TVX Cayman c/o Close Brothers (Cayman) Limited
000 Xxxxx Xxxxxx Xxxxxx
P.O. Box 1034 GT,
Grand Cayman, Cayman Islands BWI
--------------------------------------- ---------------------------------------
Kinross Americas Holdings c/o Close Brothers (Cayman) Limited
000 Xxxxx Xxxxxx Xxxxxx
P.O. Box 1034 GT,
Grand Cayman, Cayman Islands BWI
--------------------------------------- ---------------------------------------
Miicre c/o Close Brothers (Cayman) Limited
000 Xxxxx Xxxxxx Xxxxxx
P.O. Box 1034 GT,
Grand Cayman, Cayman Islands BWI
-------------------------------------------------------------------------------
JURISDICTION OF INCORPORATION
--------------------------------------- ---------------------------------------
Kinross Canada Ontario
--------------------------------------- ---------------------------------------
Kinross U.S.A. Nevada
--------------------------------------- ---------------------------------------
Fairbanks U.S. Delaware
--------------------------------------- ---------------------------------------
Kinam Gold Nevada
--------------------------------------- ---------------------------------------
Xxxxx Creek Alaska
--------------------------------------- ---------------------------------------
Round Mountain Delaware
--------------------------------------- ---------------------------------------
EB Inc. Delaware
--------------------------------------- ---------------------------------------
Kinam Canada Ontario
--------------------------------------- ---------------------------------------
TVX Cayman Cayman Islands
--------------------------------------- ---------------------------------------
Kinross Americas Holdings Cayman Islands
--------------------------------------- ---------------------------------------
Miicre Cayman Islands
--------------------------------------- ---------------------------------------
SCHEDULE E
FORM OF DRAWDOWN NOTICE
TO: The Bank of Nova Scotia
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxx
- and to -
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxxx
RE: Amended and Restated Credit Agreement made as of April 8, 2005, as
amended (the "Credit Agreement") between Kinross Gold Corporation,
Kinross Gold U.S.A., Inc., Fairbanks Gold Mining, Inc. and Round
Mountain Gold Corporation, as borrowers, 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 draw down under the Credit Facility
on [date of drawdown] as follows:
Availment Option: _____________________________________
Currency & Amount (or, if a Gold Loan, number of xxxx ounces of Gold):
_____________________________________
If LIBOR Loan, Interest Period: __________________________
If Gold Loan, Gold Funding Period: ________________________
Gold Funding Fee and fronting fee payable in [check one]: [ ]
Gold, or [ ] U.S. dollars
If the Gold Funding Fee and fronting fee are payable in U.S. dollars,
the principal amount of the Gold Loan will be calculated on the basis of
[select by check (A) or (B)]:
(A) [ ] the London Price on the first day of the Gold Funding
Period selected above multiplied by the principal amount of the Gold
Loan; or
(B) [ ] the arithmetic mean of the London Price for each Banking
Day of the Gold Funding Period (or such shorter three month period if
required pursuant to Section 7.2(c)(ii)) selected above multiplied by
the principal amount of the Gold Loan.
If Bankers' Acceptance, term: ____________________________
If Letter, (a copy being attached hereto):
Type of Letter (financial or performance): ____________________________
If issued on behalf of a Subsidiary as well as on behalf of the
undersigned, the name of such Subsidiary:
____________________________________________
Date of Issuance: ______________________________________
Named Beneficiary: ____________________________________
Maturity Date: ________________________________________
Currency & Amount: ___________________________________
Other Terms: _________________________________________
[You are hereby irrevocably authorized and directed to pay the proceeds of the
drawdown to _______________ and this shall be your good and sufficient authority
for so doing.]
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___.
[NAME OF BORROWER]
By:
-------------------------------
Name:
Title:
SCHEDULE F
FORM OF ROLLOVER NOTICE
TO: The Bank of Nova Scotia
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxx
- and to -
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxxx
RE: Amended and Restated Credit Agreement made as of April 8, 2005, as
amended (the "Credit Agreement") between Kinross Gold Corporation,
Kinross Gold U.S.A., Inc., Fairbanks Gold Mining, Inc. and Round
Mountain Gold Corporation, as borrowers, 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 requests a rollover of outstanding credit under the Credit Facility
on [date of rollover] as follows:
[Choose as appropriate]
BANKERS' ACCEPTANCES
Maturity Date of Maturing Bankers'
Acceptances ______________________
Aggregate Face Amount of Maturing
Bankers' Acceptances $_____________________
Portion Thereof to be Replaced $_____________________
Term of New Bankers' Acceptances ______________________
LIBOR LOANS
Maturity Date of Maturing LIBOR Loan ______________________
Principal Amount of Maturing LIBOR Loan $_____________________
Portion Thereof to be Replaced $_____________________
Interest Period of New LIBOR Loan _______ months
GOLD LOANS
Maturity Date of Maturing Gold Loan ________________
Principal Amount of Maturing Gold Loan ________________ xxxx ounces
Portion Thereof to be Replaced ________________ xxxx ounces
Gold Funding Period of New Gold Loan ___ months
Gold Funding Fee and fronting fee payable in [check one]: [ ] Gold, or
[ ] U.S. dollars
If the Gold Funding Fee and fronting fee are payable in U.S. dollars,
the principal amount of the Gold Loan will be calculated on the basis of
[select by check (A) or (B)]:
(A) [ ] the London Price on the first day of the Gold Funding
Period selected above multiplied by the principal amount of the New Gold
Loan; or
(B) [ ] the arithmetic mean of the London Price for each Banking
Day of the Gold Funding Period (or such shorter three month period if
required pursuant to Section 7.2(c)(ii)) selected above multiplied by
the principal amount of the Gold Loan.
All capitalized terms defined in the Credit Agreement and used herein
shall have the meaning ascribed thereto in the Credit Agreement.
DATED the _________ day of ________________, 20____.
[NAME OF BORROWER]
By:
--------------------------------
Name:
Title:
SCHEDULE G
FORM OF CONVERSION NOTICE
TO: The Bank of Nova Scotia
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxx
- and to -
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx Xxxxxxx
RE: Amended and Restated Credit Agreement made as of April 8, 2005, as
amended (the "Credit Agreement") between Kinross Gold Corporation,
Kinross Gold U.S.A., Inc., Fairbanks Gold Mining, Inc. and Round
Mountain Gold Corporation, as borrowers, 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 requests a conversion of outstanding credit under the Credit
Facility on [date of conversion] as follows:
[Choose as appropriate]
CONVERTING FROM BANKERS' ACCEPTANCES CONVERTING INTO BANKERS' ACCEPTANCE
Maturity of Bankers' Acceptances Aggregate Face Amount $______________
to be converted ______________________ of New Bankers' Acceptances
Aggregate Term of New __________ days
Face Amount $_____________ Bankers' Acceptances
of said Bankers'
Acceptances
Portion Thereof $_____________ LIBOR LOANS
to be converted
Principal U.S.$_____________
PRIME RATE LOANS Amount of
New LIBOR Loan
Principal Amount $_____________ Interest _____ months
of Prime Rate Loan Period of
to be converted New LIBOR Loan
Portion Thereof $_____________ PRIME RATE LOANS
to be converted
Principal $_____________
LIBOR LOANS Amount of
New Prime Rate
Maturity Date of ______ Loan
Maturing LIBOR Loan
Principal Amount of U.S.$_____________
Maturing LIBOR Loan
Portion Thereof to U.S.$_____________
be converted
BASE RATE CANADA LOAN
BASE RATE CANADA LOANS
Principal U.S.$_____________
Principal Amount U.S.$_____________ Amount of
of Base Rate New Base Rate
Canada Loan Canada Loan
to be converted
Portion Thereof U.S.$_____________ BASE RATE NEW YORK LOAN
to be converted
Principal U.S.$_____________
Amount of
New Base Rate
New York Loan
GOLD LOANS
BASE RATE NEW YORK LOAN
Principal Amount of ________ xxxx ounces New Gold Loan
Principal Amount of U.S.$_____________
Base Rate New York Gold Funding Period
Loan to be converted of New Gold Loan _________ months
Portion Thereof U.S.$_____________
To be converted
GOLD LOAN
If converted into Gold Loan, Gold Funding Fee and
Maturity Date of ______ fronting fee are payable in [check one]:
Maturing Gold Loan
Principal Amount of _________ xxxx ounces [ ] Gold, or [ ] U.S. dollars.
Maturing Gold Loan
Portion Thereof to _________ xxxx ounces If converted into Gold Loan and the Gold Funding Fee
be converted and fronting fee are payable in U.S. dollars, the
principal amount of the Gold Loan will be calculated
on the basis of [select by checking (A) or (B)]
(A) [ ] the London Price on the first day of
the Gold Funding Period selected above multiplied by
the principal amount of the New Gold Loan; or (B) [ ]
the arithmetic mean of the London Price for each
Banking Day of the Gold Funding Period (or such
shorter three month period if required pursuant to
Section 7.2(c)(ii)) selected above multiplied by
the principal amount of the Gold Loan.
All capitalized terms defined in the Credit Agreement and used herein shall have
the meaning ascribed thereto in the Credit Agreement.
DATED the ________ day of _____________, 20____.
[NAME OF BORROWER]
By:
----------------------------------
Name:
Title:
SCHEDULE H
CORPORATE STRUCTURE
[PICTURE OF THE CORPORATE STRUCTURE CHART OF KINROSS GOLD CORPORATION
AS AT DECEMBER 31, 2004]
SCHEDULE I
REIMBURSEMENT INSTRUMENT
TO: The Bank of Nova Scotia (the "Issuing Lender")
RE: Amended and Restated Credit Agreement made as of April 8, 2005, as
amended (the "Credit Agreement") between Kinross Gold Corporation,
Kinross Gold U.S. A., Inc. Fairbanks Gold Mining, Inc. and Round
Mountain Gold Corporation, as borrowers, the Lenders named therein and
The Bank of Nova Scotia, as administrative agent of the Lenders
For good and valuable consideration, 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]
By:
-------------------------------------
By:
-------------------------------------
SCHEDULE J
APPLICABLE RATES
SCHEDULE K
SECURITY DOCUMENTS
1. Pledge Agreement dated as of April 8, 2005 entered into by Kinross
Canada in favour of the Administrative Agent;
2. Pledge Agreement dated as of April 8, 2005 entered into by Kinam Canada
in favour of the Administrative Agent;
3. Investment Account Pledge Agreement dated February 1, 0000 xxxxxxx
Xxxxxxx Xxxxxx and the Administrative Agent;
4. Investment Account Pledge Agreement dated February 1, 2003 between
Kinross U.S.A. and the Administrative Agent;
5. Investment Account Pledge Agreement dated February 1, 2003 between TVX
Cayman and the Administrative Agent;
6. Share Pledge Agreement dated as of February 1, 2003 entered into by
Kinam Gold in favour of the Administrative Agent;
7. Share Pledge Agreement dated as of February 1, 2003 entered into by EB
Inc. in favour of the Administrative Agent;
8. Charge Over Shares dated February 1, 2003 between TVX Cayman and the
Administrative Agent;
9. Charge Over Shares dated February 1, 2003 between Kinross Americas
Holdings and the Administrative Agent;
10. Charge Over Shares dated February 1, 2003 between Miicre and the
Administrative Agent;
11. Deed of Trust entered into by Fairbanks U.S. and Xxxxx Creek in favour
of the Administrative Agent in respect of the Fort Xxxx Deposit, dated
as of February 1, 2003;
12. Deed of Trust entered into by Fairbanks U.S. in favour of the
Administrative Agent in respect of the True North Deposit dated as of
February 1, 2003;
13. Deed of Trust entered into by Fairbanks U.S. in favour of the
Administrative Agent in respect of the Xxxx Xxxx Deposit, dated as of
February 1, 2003.
14. Pledge Agreement dated as of April 5, 2005 into by TVX Brazil in favour
of the Administrative Agent.
SCHEDULE L
[INTENTIONALLY DELETED]
SCHEDULE M
BORROWER INSTRUMENT OF ADHESION
TO: THE BANK OF NOVA SCOTIA, as Administrative Agent
AND TO: THE OTHER PARTIES TO THE AMENDED AND RESTATED CREDIT AGREEMENT
REFERRED TO BELOW
Reference is made to the amended and restated credit agreement dated as
of April 8, 2005 by and among Kinross Gold Corporation, Kinross Gold U.S.A.,
Inc., Fairbanks Gold Mining, Inc. and Round Mountain Gold Corporation, as
Borrowers, the Lenders who may from time to time be parties thereto, and The
Bank of Nova Scotia, as Administrative Agent (such credit agreement, as amended,
modified, supplemented, replaced or restated from time to time, being the
"Credit Agreement", the terms defined therein and not otherwise defined herein
being used herein as therein defined).
WHEREAS the Credit Agreement provides that a wholly-owned Subsidiary of
Kinross Gold Corporation may become a Borrower under the Credit Agreement if it,
among other things, executes this instrument and delivers it to the
Administrative Agent;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the undersigned, the undersigned
hereby represents, warrants and covenants as follows:
15. By executing this instrument, the undersigned hereby covenants and
agrees to become a party to, and be bound by the terms and conditions
of, the Credit Agreement as a Borrower, including all amendments,
supplements and additions thereto, deletions therefrom and restatements
thereof, as if the undersigned was an original party thereto.
16. The undersigned hereby acknowledges that it has been provided with a
copy of the Credit Agreement. 17. For the purposes of Section 15.1 of
the Credit Agreement, all notices, requests and demands to or upon the
undersigned shall be addressed as follows:
________________________________
________________________________
________________________________
Attention: ____________________
Facsimile No.: _______________
18. The undersigned hereby represents and warrants that:
(a) There is no French form of the corporate name of the
undersigned, except as may be set forth in the attached
Schedule.
(b) The place of business of the undersigned or, if there are more
than one, the principal place of business of the undersigned
(for the purposes of the PPSA, the UCC or any similar law of any
other jurisdiction) is as set forth in the attached Schedule.
(c) The addresses of all locations of the inventory, equipment and
other tangible personal property of the undersigned are as set
out in attached Schedule.
(d) The authorized capital of the undersigned consists of __________
shares with a par value of $______________ each, of which
_____________ shares have been issued and are outstanding as
fully paid and non-assessable. ______________ is the owner of
record of all of the issued and outstanding shares of the
undersigned. There are no outstanding warrants, options or other
agreements which require or may require the issuance of any
shares of the undersigned or the issuance of any debt or
securities convertible into shares of the undersigned, there are
no outstanding debt or securities convertible into shares of the
undersigned and there are no shares of the undersigned allotted
for issuance.
DATED this ______ day of ____________, ______.
[NAME OF ADDITIONAL BORROWER]
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
SCHEDULE N
LOCATION OF TANGIBLE PERSONAL PROPERTY
-------------------------------------- -----------------------------------------
COMPANY LOCATIONS
-------------------------------------- -----------------------------------------
Fairbanks X.X. #0 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
-------------------------------------- -----------------------------------------
Argor Heuaeus S.A.
Xxx Xxxxx 00
XX-0000 Xxxxxxxxx
Xxxxxxxxxxx
-------------------------------------- -----------------------------------------
Xxxxxxx Xxxxxxx
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, XX 00000-0000
-------------------------------------- -----------------------------------------
Xxxxx Creek Fort Xxxx Operating Mine
X.X. Xxx 00000,
Xxxxxxxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
-------------------------------------- -----------------------------------------
Argor Heuaeus S.A.
Xxx Xxxxx 00
XX-0000 Xxxxxxxxx
Xxxxxxxxxxx
-------------------------------------- -----------------------------------------
SCHEDULE O
PERMITTED ASSET DISPOSITIONS
1. The sale, transfer or other disposition of any Company's inventory or
its worn out, unserviceable or obsolete equipment in the ordinary course of
business.
2. The sale, transfer or other disposition of any of the following assets
for their fair market value provided that no Default has occurred and is
continuing at the time of such sale or disposition:
(a) all real and personal property comprising or relating to
reclamation projects;
(b) all Investments held by any Obligors in Persons, other than
Subsidiaries, in the form of Shares or debt instruments; and
(c) shares in Subsidiaries, other than Material Subsidiaries;
provided that the shares of any such Subsidiary may not be sold,
transferred or otherwise disposed of, if as a result of such
sale, transfer or other disposition, any Material Subsidiary
would cease to be a direct or indirect wholly-owned Subsidiary
of Kinross Canada.
3. The sale, transfer or other disposition of other assets of the Companies
for fair market value, provided that no Default has occurred and is continuing
at the time of such sale, transfer or disposition and the aggregate gross
proceeds of such sales, transfers and dispositions do not exceed $50,000,000 in
any Fiscal Year.
A Company may abandon or allow mining properties to expire in the ordinary
course of its business and may, provided the representation and warranty set
forth in Section 10.1(s) would be true and correct if made immediately after the
granting of any such participating interest, grant participating interests in
its mining properties in the ordinary course of business by way of joint
ventures, farm-ins, options or otherwise.
SCHEDULE P
MATERIAL CONTRACTS
CRIXAS MINE, BRAZIL
The Crixas Mine is owned by Mineracao Serra Grande, S.A. ("SERRA GRANDE").
Kinross Canada and AngloGold South America Limited ("ANGLOGOLD") each own 50% of
Serra Grande. Kinross Canada holds its interest through Newinco. An affiliate of
AngloGold is manager of the Crixas Mine.
The Serra Grande Mine consists of two mining leases and 15 exploration licenses.
----------------------- --------------------------------------------------------
MATERIAL CONTRACTS: Management Agreement dated April 29, 0000 xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxxxxx xx Xxxxx Xxxxxxx (XXXX) S.A., Inco
Limited and Kinross Canada
Draft Shareholders Agreement made as of April 29, 1993
between Newinco Brazil, Mineracao Morro Velho S.A. and
Amisa Mineracao Limitada
----------------------- --------------------------------------------------------
LA COIPA MINE, CHILE
The La Coipa Mine is owned by MDO. Kinross Canada and Placer Dome Inc. ("PLACER
DOME") each own a 50% interest in MDO. Kinross Canada holds its interest in MDO
through Macaines.
----------------------- --------------------------------------------------------
MATERIAL CONTRACTS: Unsigned Asset Purchase Agreement dated January 25, 1989
among Compania Nacional de Minera CNM Limitada, Rio
Grande de Oro S.A., MDO, Cayman PDC Limited ("CAYMAN
PDC"), Macaines, Placer Dome and Selsted Investments
Limited
Signed amending agreement dated June 25, 1990 between
Compania Nacional de Minera CNM Limitada, Rio Grande de
Oro S.A., MDO, Cayman PDC, Macaines, Placer Dome, Keba
Investments Ltd., Miicre Mining Investments Ltd. and
Consolidated TVX Mining Corporation
----------------------- --------------------------------------------------------
XXXXXXXXXXX MINE, CANADA
The Xxxxxxxxxxx Mine is operated as an unincorporated joint venture between
Placer Dome (CLA) Limited ("PLACER") and Kinross Canada. Placer holds a 68.07%
interest in the joint venture and Kinross Canada holds a 31.93% interest. Placer
is the operator of the joint venture.
The Xxxxxxxxxxx Mine consists of 338 leased mining claims and 231 unpatented
claims.
----------------------- --------------------------------------------------------
MATERIAL CONTRACTS: Musselwhite Grubstake Joint Venture Agreement dated as
of December 31, 1983 between Dome Exploration (Canada)
Limited and Canadian Nickel Company Limited and Essso
Minerals Canada and Lacana Ex (1981) Inc.
----------------------- --------------------------------------------------------
PORCUPINE JOINT VENTURE, TIMMINS, ONTARIO
Kinross Canada and Placer entered into an asset exchange agreement and a joint
venture agreement dated as of July 1, 2002. Under the joint venture agreement
Kinross Canada and Placer formed a joint venture in which Kinross Canada holds a
49% interest and Placer holds a 51% interest. The joint venture is managed by
Placer. Under the asset exchange agreement Kinross Canada transferred to Placer
a 51% interest in the Hoyle Pond Mine and the Pamour Mine. In return, Placer
transferred to Kinross Canada a 49% interest in the Dome Mine and related
assets, most notably the Dome Mill. The joint venture covers a "sphere of
influence" over the area within a 100 km radius of the Dome Mill, except that
EBML's Aquarius Project is excluded.
The Dome Underground Mine closed in May 2004 and the Dome Open Pit is scheduled
to close in 2005. The Pamour Open Pit will commence production in 2005.
----------------------- --------------------------------------------------------
MATERIAL CONTRACTS: Unsigned copy of the Joint Venture Agreement
of an Unincorporated Joint Venture between Placer and
Kinross Canada dated July 1, 2002, missing Schedule A
and Page 52.
Unsigned copy of the Asset Exchange Agreement between
Placer and Kinross Canada dated July 1, 2002.
----------------------- --------------------------------------------------------
XXXXXXX PROJECT, CHILE
The Xxxxxxx mine is owned by Compania Minera Maricunga ("CMM"). CMM is owned 50%
by Kinross Canada through Xxxxx Xxxxxxx and 50% by BEMA Gold Corporation
("BEMA").
----------------------- --------------------------------------------------------
MATERIAL CONTRACTS: Amended and Restated Shareholders Agreement dated June
1, 1999 between Xxxxx Xxxxxxx and Bema Gold (Bermuda)
Ltd.
----------------------- --------------------------------------------------------
XXXXX XXXXXXXX XXXX, XXXXXX, XXX
Xxxxxxx Xxxxxx indirectly owns a 50% interest in and operates the Round Mountain
Mine through Round Mountain. Two affiliates of Xxxxxxx Gold Corporation
("BARRICK") each own a 25% undivided interest in the Round Mountain Mine.
The Round Mountain Mine is an open-pit mine, the property of which consists of
contiguous patented and unpatented mining claims.
----------------------- --------------------------------------------------------
MATERIAL CONTRACTS: Letter of Engagement, dated June 16, 1972 from Felmont
Oil Corporation to Copper Range Exploration Company,
Inc.
Operating Agreement for an unincorporated Common
Operation, dated March 13, 1975 between Smoky Valley
Mining Company, Felmont Oil Corporation and Essex
Royalty Corporation
Amending Agreement, dated February 1, 1977 between Smoky
Valley Mining Company, Felmont Oil Corporation and Case,
Xxxxxxx & Company, Inc.
Amending Agreement, dated August 1, 1978 between Smoky
Valley Mining Company, Felmont Oil Corporation and Case,
Xxxxxxx & Company, Inc.
Letter Agreement, dated June 20, 1983 from Copper Range
Company to Felmont Oil Corporation and Case, Xxxxxxx &
Company, Inc. establishing the Area of Mutual Interest
for the Common Operation.
Amending Agreement, dated March 27, 1984 between Copper
Range Company, Felmont Oil Corporation and Case, Xxxxxxx
& Company Inc.
Letter Agreement, dated May 5, 1986 from Round Mountain
to Felmont Oil Corporation and Case, Xxxxxxx & Company,
Inc. re-establishing the Area of Mutual Interest for the
Common Operation.
Amending Agreement, dated January 28, 1989, between
Round Mountain, Homestake Nevada Corporation and BaRGOLD
Corporation.
Amending Agreement dated May 8, 1995 between Round
Mountain, Homestake Nevada Corporation and BaRGOLD
Corporation.
----------------------- --------------------------------------------------------
SCHEDULE Q
FORM OF ACCORDION AGREEMENT
Reference is made to the amended and restated credit agreement dated as
of April 8, 2005 (as such agreement may be amended, supplemented, amended and
restated, novated or otherwise modified and in effect from time to time, the
"CREDIT AGREEMENT") among Kinross Gold Corporation, Kinross Gold U.S.A., Inc.,
Fairbanks Gold Mining, Inc. and Round Mountain Gold Corporation, as borrowers,
the Lenders named therein and The Bank of Nova Scotia, as Administrative Agent.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned in the Credit Agreement.
RECITALS:
Pursuant to Section 2.2(d) of the Credit Agreement, Kinross Canada
wishes to designate the Accordion Lender defined below as a Lender under the
Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Borrowers, the Lenders, the
Administrative Agent, the Issuing Lender, the Bullion Fronting Lender and (*)
(the "ACCORDION LENDER"), hereby agree as follows:
19. The Credit Agreement shall, henceforth from the date of the execution
and delivery of this Accordion Agreement but subject always to Section
2.2(f) of the Credit Agreement, be read and construed as if the
Accordion Lender were party to the Credit Agreement having all the
rights and obligations of a Lender under the Credit Agreement having the
Individual Commitment set out in paragraph 2 below. Accordingly all
references in any Credit Documents to (a) any "Lender" shall be treated
as including a reference to the Accordion Lender and (b) the Credit
Agreement shall be treated as a reference to the Credit Agreement as
supplemented by this Accordion Agreement to the intent that this
Accordion Agreement and the Credit Agreement shall be read and construed
together as one single agreement.
20. 1The Individual Commitment of the Accordion Lender, and the address and
the telefacsimile number for the purposes of notices as provided in
Section 15.1 of the Credit Agreement, are set out in the attached
revised Schedule A.
21. The Accordion Lender represents and warrants to each of the other
parties to the Credit Agreement that it has been provided with a copy of
the Credit Agreement.
22. The Accordion Lender irrevocably authorizes and directs the
Administrative Agent, as its attorney and agent, with full power of
substitution and delegation, to complete, execute and deliver on behalf
of the Accordion Lender each Credit Document to be executed by it or on
its behalf and each agreement, document and instrument to be executed by
it or on its behalf pursuant to each Credit Document, and to take such
action on its behalf as may be authorized or directed pursuant to any
such Credit Document.
--------
1 The Individual Commitment should identify if the Accordion Lender is to be a
Canadian Lender and/or a U.S. Lender.
23. This Accordion Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same
instrument. Transmission of an executed signature page of this Accordion
Agreement by facsimile transmission or by e-mail in pdf format shall be
effected as delivery if a manually executed counterpart hereof.
24. This Accordion Agreement shall be governed by, and interpreted in
accordance with, the laws of the Province of Ontario and the federal
laws of Canada applicable therein.
25. [THE ACCORDION LENDER NOTIFIES THE BORROWER, THE BULLION FRONTING LENDER
AND THE ADMINISTRATIVE AGENT THAT, AS A [CANADIAN LENDER/U.S.
LENDER/CANADIAN LENDER AND U.S. LENDER] AND UNTIL OTHERWISE NOTIFIED BY
THE ACCORDION LENDER, THE ACCORDION LENDER SHALL BE A NON-BULLION
LENDER.]
IN WITNESS WHEREOF, the parties hereto have caused this Accordion
Agreement to be executed and delivered by their respective officers thereunto
duly authorized as of the _____________ day of ________________________,
_______.
KINROSS GOLD CORPORATION
for and on behalf of all Borrowers -----------------------------------
as Accordion Lender
By: By:
----------------------------------- ----------------------------
Title: Title:
----------------------------------- ----------------------------
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA
as Administrative Agent as Issuing Lender
By: By:
----------------------------------- ----------------------------
Title: Title:
----------------------------------- ----------------------------
THE BANK OF NOVA SCOTIA
as Bullion Fronting Lenter
By:
-----------------------------------
Title:
-----------------------------------
SCHEDULE R
CAPITAL OF PLEDGED SUBSIDIARIES
------------------------------- ---------------------------- ---------------------------- ----------------------------
PLEDGED SUBSIDIARY AUTHORIZED CAPITAL ISSUED CAPITAL OWNER OF RECORD
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx Creek 10,000,000 shares with a 100,000 shares Kinam Canada
par value of $0.01 each
------------------------------- ---------------------------- ---------------------------- ----------------------------
Fairbanks U.S. 1,000 shares with a par 10 shares Kinam Gold
value of $100.00 each
------------------------------- ---------------------------- ---------------------------- ----------------------------
Xxxxx Xxxxxxx 1,000 common shares with a 10 common shares Kinam Gold
par value of U.S. $100 each
------------------------------- ---------------------------- ---------------------------- ----------------------------
Round Mountain 1,000 common shares with a 1,000 common shares EB Inc.
par value of U.S.$0.01 each
------------------------------- ---------------------------- ---------------------------- ----------------------------
TVX Cayman 50,000 common shares 100 common shares and Kinross Canada
with a par value of U.S. 1,000,000 preference shares
$1.00 each and 1,000,000
preference shares with a par
value of U.S.$1.00 each
------------------------------- ---------------------------- ---------------------------- ----------------------------
Newinco 50,000 shares with a par 100 shares TVX Cayman
value of U.S.$1.00 each
------------------------------- ---------------------------- ---------------------------- ----------------------------
Cayman PI 50,000 shares with a par 101 shares TVX Newmont Holdings
value of U.S.$1.00 each
------------------------------- ---------------------------- ---------------------------- ----------------------------
Macaines 500,000,000 ordinary 158,000,100 shares Miicre
shares with a par value of
U.S.$1.00 each ranking
pari passu with the
existing shares
------------------------------- ---------------------------- ---------------------------- ----------------------------
------------------------------- ---------------------------- ---------------------------- ----------------------------
PLEDGED SUBSIDIARY AUTHORIZED CAPITAL ISSUED CAPITAL OWNER OF RECORD
------------------------------- ---------------------------- ---------------------------- ----------------------------
IGM 900,000 ordinary shares 5,012 ordinary shares and Kinross Americas Holdings
with a par value of U.S. 19,363,000 Cdn.$ preferred
$1.00 each, 60,000,000
shares redeemable 5%
non-cumulative preferred
shares with a par value of
U.S.$1.00 each and
40,000,000 redeemable
retractable 10%
non-cumulative preferred
shares with a par value of
Cdn.$1.00 each
------------------------------- ---------------------------- ---------------------------- ----------------------------
Rio Paracatu 369,215 common shares 369,178 common shares TVX Brazil
------------------------------- ---------------------------- ---------------------------- ----------------------------
