AMENDING AGREEMENT NO. 2
AMENDING AGREEMENT NO. 2
MEMORANDUM OF AGREEMENT made as of September 26, 2016.
B E T W E E N:
HUDBAY PERÚ S.A.C.,
as
Borrower,
- and -
CERTAIN OF ITS AFFILIATES,
as Guarantors, Material Subsidiaries, Restricted Subsidiaries and/or
Obligors,
- and -
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
- and -
THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT.
WHEREAS the Borrower, certain of its Affiliates, the Agent and certain financial institutions as lenders entered into an amended and restated credit agreement dated as of March 30, 2016, as amended by an amending agreement no. 1 dated as of June 17, 2016 (as further amended, modified, supplemented or replaced to the date hereof, the "Credit Agreement");
AND WHEREAS the parties hereto wish to further amend the Credit Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises, the covenants herein contained and for other valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties), the parties hereto agree as follows:
1. Interpretation
(a) All words and expressions defined in the Credit Agreement and not otherwise defined in this Agreement have the meaning specified in the Credit Agreement, as amended by this Agreement (notwithstanding the application of Section 2).
(b) Sections 1.2, 1.3, 1.4 and 13.2 of the Credit Agreement are incorporated herein by reference.
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(c) Unless expressly stated otherwise, all references herein to sections of an agreement other than this Agreement shall be to sections of the Credit Agreement.
(d) Section headings are for convenience only.
2. Effective Date
The amendments set forth in Section 3 herein shall be effective on and as of the date the conditions set forth in Section 5 have been satisfied.
3. Amendments to the Credit Agreement
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the following new definition, to appear in the applicable alphabetical order therein:
""BNS Peru" means Scotiabank Perú S.A.A."
(b) The definition "Issuing Banks" in Section 1.1 of the Credit Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:
""Issuing Banks" means, for the time being, either BNS, BNS Peru and/or CIBC. If all of BNS, BNS Peru and CIBC cease to be Issuing Banks, a successor shall be agreed to by the Borrower and the Required Lenders, acting reasonably."
(c) The definition of “L/C” or “Letter of Credit” in Section 1.1 of the Credit Agreement is hereby amended by deleting reference therein to “either of the Issuing Banks” and replacing it with “any of the Issuing Banks”.
(d) Section 2.5(a) of the Credit Agreement is hereby amended by deleting reference in the second sentence therein to
“provided that no response shall be effective unless such Lender has provided the same response” and replacing it with the following: “provided that no such response shall be effective unless such Lender and/or any of its Affiliates who are Lenders (as defined in the Hudbay ARCA) under the Hudbay ARCA have collectively provided the same response”.
(e) Section 2.5(d)(i)(A) of the Credit Agreement is hereby amended by deleting such Section in its entirety and replacing it with the following: (with strikethrough words deleted and underlined words added):
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"(A) |
Any Accepting Lender may, at its option, acquire all or
any portion of the rights and obligations of the Declining Lenders under
the Loan Documents (all of such rights and obligations being herein called
the "Available Amount") by giving written notice to the
Agent (an "Acquisition Notice") of the portion of the
Available Amount which it is prepared to acquire (the "Desired
Acquisition Amount") provided that it and/or any of its
Affiliates who are Lenders (as defined in the Hudbay ARCA) under
the Hudbay ARCA have collectively |
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(f) Section 11.2(a)(vi) of the Credit Agreement is amended by deleting such Section in its entirety and replacing it with the following:
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"(vi) |
unless an Event of Default has occurred and is continuing, no assignment shall be permitted unless immediately following such assignment: |
| (A) |
the aggregate Applicable Percentage of the assigning Lender together with the Applicable Percentage held by any Lender which is its Affiliate will be equal to the aggregate Applicable Percentage (as defined in the Hudbay ARCA) of the assigning Lender together with the Applicable Percentage (as defined in the Hudbay ARCA) held by any Lender which is its Affiliate under the Hudbay ARCA; and | |
| (B) |
the aggregate Applicable Percentage of the applicable Eligible Assignee together with the Applicable Percentage held by any Lender which is its Affiliate will be equal to the aggregate Applicable Percentage (as defined in the Hudbay ARCA) of the applicable Eligible Assignee together with the Applicable Percentage (as defined in the Hudbay ARCA) held by any Lender which is its Affiliate under the Hudbay ARCA; and" |
(g) Section 11.2(c) of the Credit Agreement is amended by deleting subparagraphs (i) and (ii) therein and replacing it with the following:
“(i) the aggregate of each assigning Lenders’ Applicable Percentage together with the Applicable Percentage held by any Lender which is its Affiliate will be equal to the aggregate of such assigning Lender’s Applicable Percentage (as defined in the Hudbay ARCA) together with the Applicable Percentage (as defined in the Hudbay ARCA) held by any Lender which is its Affiliate under the Hudbay ARCA; and
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(ii) the aggregate of the applicable Increasing Canadian Lenders and New Canadian Accordion Lenders’ Applicable Percentage together with the Applicable Percentage held by any Increasing Canadian Lender or New Canadian Accordion Lender which is its Affiliate will be equal to the aggregate of the applicable Increasing Canadian Lenders and New Canadian Accordion Lenders’ Applicable Percentage (as defined in the Hudbay ARCA) together with the Applicable Percentage (as defined in the Hudbay ARCA) held by any Increasing Canadian Lender or New Canadian Accordion Lender which is its Affiliate under the Hudbay ARCA;
in each case after giving effect to the increase (or purported increase) under the Hudbay ARCA and the assignment and sale contemplated thereby.”
(h) Schedule A of the Credit Agreement is hereby amended by deleting such Schedule in its entirety and replacing it with Schedule A hereto.
4. Representations & Warranties
Each Obligor represents and warrants to the Agent and the Lenders, acknowledging and confirming that the Agent and the Lenders are relying thereon without independent inquiry, that:
| (a) |
the representations and warranties set forth in the Loan Documents and given by it are true and correct in all material respects on and as of the date hereof (except to the extent such representations and warranties relate to a specific date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date); and | |
| (b) |
no Default or Event of Default has occurred and is continuing nor shall any Default or Event of Default result from the execution, delivery or performance of this Agreement. |
5. Conditions Precedent
Section 3 of this Agreement shall not be effective until satisfaction or waiver of the following conditions, each to the satisfaction of the Lenders:
| (a) |
this Agreement shall be executed and delivered by the parties hereto; | |
| (b) |
the representations and warranties set forth in Section 4 of this Agreement shall be true and correct; | |
| (c) |
no Default or Event of Default shall have occurred and be continuing; and | |
| (d) |
the Agent shall have received such other documents as the Lenders may reasonably require. |
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The conditions set forth in this Section 5 are inserted for the sole benefit of the Lenders and may be waived, in whole or in part by the Lenders, with or without terms or conditions.
6. Confirmation of Security, etc.
Each Obligor hereby confirms that each of the Security Documents which it has delivered to the Agent and the Lenders:
| (a) |
remains in full force and effect as general and continuing collateral security over all of the assets, property and undertaking of such Obligor, whether now or in the future owned or acquired, and the security interests, mortgages, charges, liens, assignments, transfers and pledges granted in favour of the Agent and the Lenders pursuant to the Security Documents continue to secure all of the debts, liabilities and obligations of such Obligor to the Agent and the Lenders now or hereafter arising, to the extent provided therein; and | |
| (b) |
is enforceable against it by the Agent in accordance with its terms. |
7. Miscellaneous
(a) The parties hereto agree that this Agreement shall be a Loan Document.
(b) With the exception of the foregoing amendments, the Credit Agreement shall continue in full force and effect, unamended.
(c) This Agreement and the Credit Agreement shall enure to the benefit of and be binding upon the parties, their successors and any permitted assigns.
(d) This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
(e) This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Obligors shall promptly cure any default in its execution and delivery of this Agreement. The Obligors, at the expense of the Borrower, will promptly execute and deliver, or cause to be executed and delivered, to the Agent, upon reasonable request, all such other and further documents, agreements, certificates and instruments in compliance with, or accomplishment of the covenants and agreements of the Obligors hereunder or more fully to state the obligations of the Obligors as set out herein or in the Credit Agreement or to make any recording, file any notice or obtain any consents, all as may be necessary or appropriate in connection therewith.
(g) Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement.
| HUDBAY PERU S.A.C. | ||
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Chief Financial Officer | ||
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| HUDBAY MINERALS INC. | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Vice President and General Counsel | ||
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| By: | “Xxx Xxxxxxx” | |
| Name: Xxx Xxxxxxx | ||
| Title: Treasurer | ||
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| XXXXXX BAY MINING AND SMELTING CO., LIMITED | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title:
Vice President, General Counsel
and Corporate Secretary | ||
Signature Page to Amending Agreement No. 2 (Peru)
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| HUDBAY MARKETING & SALES INC. | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Vice President,
General Counsel and
Corporate Secretary | ||
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| XXXXXX BAY EXPLORATION AND DEVELOPMENT COMPANY LIMITED | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Vice President,
General Counsel and
Corporate Secretary | ||
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| HUDBAY PERU INC. | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Secretary | ||
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| HUDBAY (BVI) INC. | ||
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
Signature Page to Amending Agreement No. 2 (Peru)
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| 6502873 CANADA INC. | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Vice President,
General Counsel and
Corporate Secretary | ||
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| 8988277 CANADA INC. | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Vice President and General | ||
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| HUDBAY ARIZONA CORPORATION | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Vice President,
General Counsel and
Corporate Secretary | ||
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| COBRE VERDE DE MEXICO, S.A. DE C.V. | ||
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: President | ||
Signature Page to Amending Agreement No. 2 (Peru)
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| HUDBAY ARIZONA (CANADA) CORPORATION | ||
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| By: | “Xxxxxxx Xxxxxxxx” | |
| Name: Xxxxxxx Xxxxxxxx | ||
| Title: Vice President,
General Counsel and
Corporate Secretary | ||
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| HUDBAY ARIZONA (BARBADOS) SRL | ||
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Treasurer | ||
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| HUDBAY ARIZONA (US) CORPORATION | ||
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director and Vice President, Xxxxxxx Xxxxxxxx Xxxx | ||
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| XXXXXX XXXXXXX (XX) HOLDING CORPORATION | ||
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director and Vice President, Arizona Business Unit | ||
Signature Page to Amending Agreement No. 2 (Peru)
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| COBRE VERDE DEVELOPMENT CORPORATION | ||
| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director and Vice President, Arizona Business Unit | ||
| ROSEMONT COPPER COMPANY | ||
| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director and Vice President, Arizona Business Unit | ||
SAN XXXX PROPERTIES,
LLC, an Arizona Limited Liability Company by ROSEMONT COPPER
COMPANY, an Arizona Corporation, Member |
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director and Vice President, Arizona Business Unit | ||
Signature Page to Amending Agreement No. 2 (Peru)
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SAN XXXX SOUTH, LLC, an
Arizona Limited Liability Company by ROSEMONT COPPER
COMPANY, an Arizona Corporation, Member |
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director and Vice President, Arizona Business Unit | ||
XXXXXX PROPERTIES, LLC, an
Arizona Limited Liability Company by ROSEMONT
COPPER COMPANY, an Arizona Corporation, Member |
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director and Vice President, Arizona Business Unit | ||
XXXXXX JUNCTION, LLC, an
Arizona Limited Liability Company by ROSEMONT
COPPER COMPANY, an Arizona Corporation, Member |
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director and Vice President, Arizona Business Unit | ||
Signature Page to Amending Agreement No. 2 (Peru)
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Administrative Agent
| THE BANK OF NOVA SCOTIA, as Administrative Agent | ||
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| By: | “Xxxxxxx Xx” | |
| Name: Xxxxxxx Xx | ||
| Title: Director | ||
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| By: | “Xxxx Xxxxxxxx” | |
| Name: Xxxx Xxxxxxxx | ||
| Title: Analyst | ||
The Lenders
| CANADIAN IMPERIAL BANK OF COMMERCE, as Lender | ||
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| By: | “Xxxxx Xxxxxxx” | |
| Name: Xxxxx Xxxxxxx | ||
| Title: Executive Director | ||
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| By: | “Xxxxx Xxxxxx” | |
| Name: Xxxxx Xxxxxx | ||
| Title: Managing Director | ||
Signature Page to Amending Agreement Xx. 0 (Xxxx)
X-0
| XXX XXXX XX XXXX XXXXXX, as Lender | ||
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By: |
“Xxx Xxxxxx” | |
| Name: Xxx Xxxxxx | ||
| Title: Managing Director | ||
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| By: | “Xxxxxxxx Xxxxxx-Banner” | |
| Name: Xxxxxxxx Xxxxxx-Banner | ||
| Title: Associate Director | ||
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| ING CAPITAL LLC | ||
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| By: | “Remko van de Water” | |
| Name: Remko van de Water | ||
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Title: Managing Director
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| By: | “Xxxxx van Bemmelen” | |
| Name: Xxxxx van Bemmelen | ||
| Title: Vice President | ||
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| BANK OF MONTREAL | ||
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| By: | “Xxxxxx Xxxxxx” | |
| Name: Xxxxxx X. Xxxxxx | ||
| Title: Director | ||
Signature Page to Amending Agreement Xx. 0 (Xxxx)
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| XXXXX XXXX XX XXXXXX | ||
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| By: | “Xxxxxx Xxxxxxxxxxxx” | |
| Name: Xxxxxx Xxxxxxxxxxxx | ||
| Title: Authorized Signatory | ||
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| THE TORONTO-DOMINION BANK | ||
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| By: | “Xxxx Xxxxxxx” | |
| Name: Xxxx Xxxxxxx | ||
| Title: Director | ||
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| By: | “Xxxxxxx Xxxxxx” | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Managing Director | ||
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| NATIONAL BANK OF CANADA | ||
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| By: | “Xxxxx Xxxxxxx” | |
| Name: Xxxxx Xxxxxxx | ||
| Title: Managing Director | ||
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| By: | “Xxxxx Xxxxxx” | |
| Name: Xxxxx Xxxxxx | ||
| Title: Managing Director | ||
Signature Page to Amending Agreement No. 2 (Peru)
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| SCOTIABANK PERÚ S.A.A. | ||
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| By: | “Xxxxxx Xxxxxxx Xxxx” | |
| Name: Xxxxxx Xxxxxxx Xxxx | ||
| Title: Vicepresidente, Banca Corporativa | ||
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| By: | “Xxxxxxx Xxxxxx Xxxxx” | |
| Name: Xxxxxxx Xxxxxx Xxxxx | ||
| Title: Gerente de Relación, Banca Corporativa | ||
Signature Page to Amending Agreement No. 2 (Peru)
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Schedule A
LENDERS' APPLICABLE PERCENTAGES
| Canadian Imperial Bank of Commerce | 18.87% (original Commitment $37,735,849.06) |
| ING Capital LLC | 18.87% (original Commitment $37,735,849.06) |
| The Bank of Nova Scotia | 16.37% (original Commitment $32,735,849.06) |
| Bank of Montreal | 12.58% (original Commitment $25,157,232.70) |
| Royal Bank of Canada | 12.58% (original Commitment $25,157,232.70) |
| The Toronto-Dominion Bank | 12.58% (original Commitment $25,157,232.70) |
| National Bank of Canada | 5.66% (original Commitment $11,320,754.72) |
| Scotiabank Perú S.A.A. | 2.50% (original Commitment $5,000,000.00) |
