Exhibit 99.2
KINROSS GOLD CORPORATION, KINROSS GOLD U.S.A., INC.,
FAIRBANKS GOLD MINING, INC. AND ROUND MOUNTAIN GOLD CORPORATION
AS RT BORROWERS
AND
RIO PARACATU MINERACAO S.A.
AS NRT BORROWER
AND
THE BANK OF NOVA SCOTIA
AS CO-LEAD ARRANGER AND ADMINISTRATIVE AGENT
AND
EXPORT DEVELOPMENT CANADA
AS CO-LEAD ARRANGER AND CO-DOCUMENTATION AGENT
AND
SOCIETE GENERALE
AS SYNDICATION AGENT
AND
ROYAL BANK OF CANADA
AS CO-DOCUMENTATION AGENT
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
--------------------------------------------------------------------------------
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
--------------------------------------------------------------------------------
DATED AS OF AUGUST 18, 2006
[FASKEN XXXXXXXXX LOGO]
Fasken Xxxxxxxxx DuMoulin LLP
Toronto, Ontario
TABLE OF CONTENTS
PAGE
ARTICLE 1 INTERPRETATION.............................................................................1
1.1 DEFINED TERMS..............................................................................1
1.2 OTHER USAGES..............................................................................32
1.3 PLURAL AND SINGULAR.......................................................................32
1.4 HEADINGS..................................................................................32
1.5 CURRENCY..................................................................................32
1.6 APPLICABLE LAW............................................................................32
1.7 TIME OF THE ESSENCE.......................................................................32
1.8 NON-BANKING DAYS..........................................................................33
1.9 CONSENTS AND APPROVALS....................................................................33
1.10 AMOUNT OF CREDIT..........................................................................33
1.11 SCHEDULES.................................................................................33
1.12 EXTENSION OF CREDIT.......................................................................33
1.13 JOINT AND SEVERAL RT OBLIGATIONS..........................................................33
ARTICLE 2 CREDIT FACILITIES.........................................................................34
2.1 ESTABLISHMENT OF CREDIT FACILITIES........................................................34
2.2 LENDERS' COMMITMENTS......................................................................34
2.3 REDUCTION OF CREDIT FACILITIES............................................................35
2.4 TERMINATION OF CREDIT FACILITIES..........................................................35
ARTICLE 3 GENERAL PROVISIONS RELATING TO CREDITS....................................................36
3.1 TYPES OF CREDIT AVAILMENTS................................................................36
3.2 FUNDING OF LOANS..........................................................................36
3.3 FAILURE OF LENDER TO FUND LOAN............................................................37
3.4 FUNDING OF BANKERS' ACCEPTANCES...........................................................37
3.5 BA RATE LOANS.............................................................................40
3.6 TIMING OF CREDIT AVAILMENTS...............................................................40
3.7 INABILITY TO FUND U.S. DOLLAR ADVANCES IN CANADA..........................................40
3.8 INABILITY TO FUND LIBOR LOAN IN THE UNITED STATES.........................................42
3.9 TIME AND PLACE OF PAYMENTS................................................................43
3.10 REMITTANCE OF PAYMENTS....................................................................43
3.11 EVIDENCE OF INDEBTEDNESS..................................................................44
3.12 GENERAL PROVISIONS RELATING TO ALL LETTERS................................................44
3.13 NOTICE PERIODS............................................................................46
3.14 ADMINISTRATIVE AGENT'S DISCRETION TO ALLOCATE.............................................46
ARTICLE 4 DRAWDOWNS.................................................................................46
4.1 DRAWDOWN NOTICE...........................................................................46
ARTICLE 5 ROLLOVERS.................................................................................47
5.1 BANKERS' ACCEPTANCES......................................................................47
5.2 LIBOR LOANS...............................................................................48
5.3 ROLLOVER NOTICE...........................................................................48
5.4 ABSENCE OF NOTICE.........................................................................48
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 6 CONVERSIONS...............................................................................48
6.1 CONVERTING LOAN TO OTHER TYPE OF LOAN.....................................................48
6.2 CONVERTING LOAN TO BANKERS' ACCEPTANCES...................................................49
6.3 CONVERTING BANKERS' ACCEPTANCES TO LOAN...................................................49
6.4 CONVERSION NOTICE.........................................................................50
6.5 ABSENCE OF NOTICE.........................................................................50
6.6 CONVERSION BY LENDERS.....................................................................50
6.7 CONVERSION OF LIBOR LOANS UNDER NRT FACILITY..............................................51
ARTICLE 7 INTEREST AND FEES.........................................................................51
7.1 INTEREST RATES............................................................................51
7.2 CALCULATION AND PAYMENT OF INTEREST.......................................................51
7.3 GENERAL INTEREST RULES....................................................................52
7.4 SELECTION OF INTEREST PERIODS.............................................................52
7.5 ACCEPTANCE FEES...........................................................................53
7.6 STANDBY FEES..............................................................................53
7.7 LETTER FEES...............................................................................54
7.8 APPLICABLE RATE ADJUSTMENT................................................................54
ARTICLE 8 RESERVE, CAPITAL, INDEMNITY AND TAX PROVISIONS............................................55
8.1 CONDITIONS OF CREDIT......................................................................55
8.2 CHANGE OF CIRCUMSTANCES...................................................................55
8.3 FAILURE TO FUND AS A RESULT OF CHANGE OF CIRCUMSTANCES....................................56
8.4 INDEMNITY RELATING TO CREDITS.............................................................57
8.5 INDEMNITY FOR TRANSACTIONAL AND ENVIRONMENTAL LIABILITY...................................57
8.6 PAYMENTS FREE AND CLEAR OF TAXES..........................................................59
ARTICLE 9 REPAYMENTS AND PREPAYMENTS................................................................65
9.1 REPAYMENT OF RT FACILITY..................................................................65
9.2 EXTENSION OF RT FACILITY MATURITY DATE....................................................65
9.3 REPAYMENT OF NRT FACILITY.................................................................67
9.4 VOLUNTARY PREPAYMENTS UNDER A CREDIT FACILITY.............................................68
9.5 PREPAYMENT NOTICE.........................................................................68
9.6 REIMBURSEMENT OR CONVERSION ON PRESENTATION OF LETTERS....................................69
9.7 LETTERS SUBJECT TO AN ORDER...............................................................69
9.8 CURRENCY OF REPAYMENT.....................................................................69
9.9 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
ARTICLE 11 COVENANTS.................................................................................76
11.1 AFFIRMATIVE COVENANTS.....................................................................76
TABLE OF CONTENTS
(continued)
PAGE
11.2 RESTRICTIVE COVENANTS.....................................................................89
11.3 PERFORMANCE OF COVENANTS BY ADMINISTRATIVE AGENT..........................................93
ARTICLE 12 CONDITIONS PRECEDENT TO OBTAINING CREDIT..................................................93
12.1 CONDITIONS PRECEDENT TO ALL CREDIT........................................................93
12.2 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT........................................94
12.3 CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT UNDER THE NRT FACILITY................96
12.4 WAIVER....................................................................................97
ARTICLE 13 DEFAULT AND REMEDIES......................................................................97
13.1 EVENTS OF DEFAULT.........................................................................97
13.2 REFUND OF OVERPAYMENTS...................................................................100
13.3 REMEDIES CUMULATIVE......................................................................101
13.4 SET-OFF..................................................................................101
ARTICLE 14 THE ADMINISTRATIVE AGENT.................................................................101
14.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT....................................101
14.2 INTEREST HOLDERS.........................................................................102
14.3 CONSULTATION WITH COUNSEL................................................................102
14.4 DOCUMENTS................................................................................102
14.5 ADMINISTRATIVE AGENT AS LENDER...........................................................102
14.6 RESPONSIBILITY OF ADMINISTRATIVE AGENT...................................................102
14.7 ACTION BY ADMINISTRATIVE AGENT...........................................................103
14.8 NOTICE OF EVENTS OF DEFAULT..............................................................103
14.9 RESPONSIBILITY DISCLAIMED................................................................103
14.10 INDEMNIFICATION..........................................................................104
14.11 CREDIT DECISION..........................................................................104
14.12 SUCCESSOR ADMINISTRATIVE AGENT...........................................................104
14.13 DELEGATION BY ADMINISTRATIVE AGENT.......................................................105
14.14 WAIVERS AND AMENDMENTS...................................................................105
14.15 DETERMINATION BY ADMINISTRATIVE AGENT CONCLUSIVE AND BINDING.............................106
14.16 ADJUSTMENTS AMONG LENDERS AFTER ACCELERATION.............................................107
14.17 REDISTRIBUTION OF PAYMENT................................................................107
14.18 DISTRIBUTION OF NOTICES..................................................................108
14.19 DETERMINATION OF EXPOSURES...............................................................108
14.20 DECISION TO ENFORCE SECURITY.............................................................109
14.21 ENFORCEMENT..............................................................................109
14.22 APPLICATION OF CASH PROCEEDS OF REALIZATION..............................................109
14.23 SECURITY DOCUMENTS.......................................................................110
14.24 [INTENTIONALLY DELETED]..................................................................110
14.25 SURVIVAL.................................................................................110
14.26 DISCHARGE OF SECURITY....................................................................110
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 15 MISCELLANEOUS............................................................................111
15.1 NOTICES..................................................................................111
15.2 SEVERABILITY.............................................................................111
15.3 COUNTERPARTS.............................................................................111
15.4 SUCCESSORS AND ASSIGNS...................................................................111
15.5 ASSIGNMENT...............................................................................111
15.6 ENTIRE AGREEMENT.........................................................................113
15.7 FURTHER ASSURANCES.......................................................................113
15.8 JUDGMENT CURRENCY........................................................................114
15.9 NOTICE OF REMEDIES.......................................................................114
15.10 WAIVERS OF JURY TRIAL....................................................................115
15.11 TITLES...................................................................................115
15.12 USA PATRIOT ACT..........................................................................115
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 RT BORROWER INSTRUMENT OF ADHESION
TABLE OF CONTENTS
(continued)
PAGE
SCHEDULE N LOCATION OF TANGIBLE PERSONAL PROPERTY
SCHEDULE O PERMITTED ASSET DISPOSITIONS
SCHEDULE P MATERIAL CONTRACTS
SCHEDULE Q CAPITAL OF PLEDGED SUBSIDIARIES
SCHEDULE R AUTHORIZATION AND DIRECTION TO ELIGIBLE GOLD PURCHASER
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 18, 2006
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."), Round Mountain Gold
Corporation, a corporation incorporated under the laws of the State of Delaware
("ROUND MOUNTAIN or "RMGC"") and Rio Paracatu Mineracao S.A., a corporation
amalgamated under the laws of Brazil (the "NRT BORROWER") (collectively, the
"BORROWERS"), the lending institutions from time to time parties hereto as
Lenders (each a "LENDER" and, collectively, the "LENDERS") and The Bank of Nova
Scotia, as Administrative Agent.
WHEREAS, pursuant to an amended and restated credit agreement made as of
April 8, 2005 between the RT Borrowers, the Administrative Agent and the RT
Lenders (the "EXISTING CREDIT AGREEMENT"), the RT 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:
"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 RT BORROWER" means an Additional Canadian RT Borrower or an
Additional RT U.S. Borrower.
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"ADDITIONAL CANADIAN RT 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(aa).
"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(z).
"ADDITIONAL U.S. RT 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(aa).
"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.
"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 used to calculate acceptance fees pursuant to Section 7.5, the rate
used to calculate standby fees pursuant to Section 7.6 or the rate used
to calculate Letter issuance fees pursuant to Section 7.7 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
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effective as set forth in Section 7.8, (ii) changes in the Applicable
Rate shall apply, as at the effective dates of such changes, to Bankers'
Acceptances, BA Rate Loans, LIBOR Loans and Letters outstanding on such
dates, but only for those portions of applicable terms or Interest
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 July 1, 2006 shall be
determined based upon the Leverage Ratio using the Net Indebtedness as
at March 31, 2006 and Rolling OCF for the Fiscal Quarter ending March
31, 2006. 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 and with respect to a
particular Credit Facility, the amount, if any, by which the amount of
such Credit Facility at such time exceeds the amount of credit
outstanding under such Credit Facility at such time.
"BA DISCOUNTED PROCEEDS" means, in respect of any Bankers' Acceptances
to be accepted by a Canadian RT 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.
"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 RT 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
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(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 RT
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 RT Lender or a
Schedule III RT 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 RT
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 RT 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 RT Borrower and
accepted by a Canadian RT 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 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, Houston, Texas and Atlanta,
Georgia, (y) when used in respect of LIBOR Loans, means any such day
which is also a day on which banks
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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 LIBOR Loans under the NRT Facility, means any
such day referred to in clause (y) which is also a day on which banks
are generally open for business in Brazilia, Brazil.
"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 RT Lenders to
a Canadian RT 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. RT Lenders to a
U.S. RT 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 (i) each RT Borrower shall guarantee all of the
Secured Obligations of each other RT Borrower to the extent they relate
to the Secured Risk Management Agreements of such other RT Borrowers,
(ii) the NRT Borrower shall guarantee all of the Secured Obligations of
the RT Borrowers and (iii) each RT Borrower shall guarantee all of the
Secured Obligations of the NRT Borrower.
"BORROWERS" means the RT Borrowers and the NRT Borrower and "BORROWER"
means any of the Borrowers.
"BRANCH OF ACCOUNT" means the Canadian Branch of Account in the case of
a Canadian RT Borrower and the NRT Borrower or the U.S. Branch of
Account in the case of a U.S. Borrower.
"BUCKHORN PROPERTIES" means the properties with respect to the Buckhorn
Mountain Project, located on approximately 2,000 acres, 24 miles east of
Oroville, Washington.
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"XXXXXXXX XX XXXXXXXXX" xxxxx Xxxxxxx Xxxxxx and each Additional
Canadian RT Borrower and "CANADIAN RT 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 RT LENDERS" means the financial institutions set out and
described as such in Schedule A as amended from time to time.
"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 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 FLOW FROM OPERATING ACTIVITIES" means, for any particular Fiscal
Quarter, cash flow provided from operating activities of Kinross Canada,
calculated on a consolidated basis and in accordance with generally
accepted
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accounting principles, as shown on the statement of cashflows, after
adjustments for working capital.
"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.
"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.
"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 Letter, each RT 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 and with respect to a
particular Credit Facility, the amount, if any, by which the aggregate
amount of credit outstanding under such Credit Facility as at the close
of business on such date
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exceeds the Total Commitment Amount in respect of such Credit Facility
as at the close of business on such date.
"CREDIT FACILITIES" means the RT Facility and the NRT Facility and
"CREDIT FACILITY" means either of the Credit Facilities.
"CROWN" means the Subsidiary of Kinross Canada that will own the
Buckhorn Properties which are located in the State of Washington and are
currently owned by Crown Resources Inc.
"DECLINING RT 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 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.
"$" denotes Canadian dollars or U.S. dollars as the context may permit.
"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.
- 9 -
"XX XXXXX" or "EBML" means Echo Bay Mines Ltd., a corporation
incorporated under the laws of Canada.
"ELIGIBLE GOLD PURCHASERS" means any Lender or any of its Affiliates or
any of Mitsui & Co. Precious Metals Inc., HSBC Bank USA, N.A. or XX
Xxxxxx Chase Bank, N.A. provided same has executed and delivered a Gold
Proceeds Authorization, a copy of which has been provided to the
Administrative Agent, or any other Person approved by the Lenders as an
Eligible Gold Purchaser, again provided same has executed and delivered
a Gold Proceeds Authorization, a copy of which has been delivered to the
Administrative Agent .
"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 3.7(c) or
3.7(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
- 10 -
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.
"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 LETTER" means the fee letter dated August 18, 2006 between the
Administrative Agent and the Borrowers, 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
- 11 -
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.
"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 PROCEEDS ACCOUNT" means the account of the NRT Borrower maintained
with the Administrative Agent at the Canadian Branch of Account into
which the proceeds of sales of gold by the NRT Borrower to Eligible Gold
Purchasers are to be deposited.
"GOLD PROCEEDS AUTHORIZATION" means an irrevocable authorization and
direction from the NRT Borrower to an Eligible Gold Purchaser and
acknowledged by such Eligible Gold Purchaser, substantially in the form
attached hereto as Schedule R and pursuant to which the NRT Borrower
irrevocably authorizes and directs such Eligible Gold Purchaser to pay
all of the proceeds of any sale of gold by the NRT Borrower to such
Eligible Gold Purchaser directly to the Gold Proceeds Account.
"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 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
- 12 -
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 Crown (subject to Section 11.1(bb)), Kinam Canada,
Kinam Gold, Xxxxx Creek, EB Inc., TVX Cayman, Kinross Americas Holdings,
Miicre, Xxxxx Xxxxxxx, Kinross Brazil and each Additional Guarantor and
"GUARANTOR" means any of the Guarantors.
"HAZARDOUS MATERIALS" means:
(a) any "hazardous substance", as defined by CERCLA;
(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
- 13 -
(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).
"INDIVIDUAL COMMITMENT" means, with respect to a particular Lender and a
particular Credit Facility, the amount set forth in Schedule A attached
hereto, as reduced or amended from time to time pursuant to, as
applicable, Sections 2.2, 2.3, 8.3, 9.1 and 9.2 (as concerns the RT
Facility), 9.3 and 9.4 (as concerns the NRT Facility) and 15.5 as the
individual commitment of such Lender with respect to such Credit
Facility, provided that, upon the termination of such Credit Facility
pursuant to Section 2.4, the Individual Commitment of each Lender with
respect to such Credit Facility shall thereafter be equal to the
Individual Commitment of such Lender under such Credit Facility
immediately prior to the termination of the Credit Facility.
- 14 -
"INITIAL CREDIT AGREEMENT" means the credit agreement made as of
February 1, 2003 between the RT Borrowers, the Administrative Agent and
the RT Lenders pursuant to which the RT Lenders established the Credit
Facility (for the purpose of this definition only, as defined in the
Initial Credit Agreement).
"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 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,
- 15 -
(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 RT LENDER" means The Bank of Nova Scotia or any other RT Lender
selected by the Administrative Agent and acceptable to the RT Borrowers
who assumes in writing the obligation of issuing Letters under the RT
Facility on behalf of the RT 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.
"KINROSS BRAZIL" means Kinross Participacoes Ltda., a corporation
incorporated under the laws of Brazil and formerly known as TVX
Participacoes Ltda.
"LENDERS" means, collectively, the RT Lenders and the NRT Lenders and
"LENDER" means any of the Lenders.
"LETTERS" means:
(a) standby letters of credit or letters of guarantee issued by the
Issuing RT Lender (i) at the request, and on the credit, of a
Canadian RT Borrower and (ii) on behalf of such Canadian RT
Borrower and, if applicable, a Subsidiary of such Canadian RT
Borrower, each being denominated in Canadian dollars or United
States dollars, having a term of not more than
- 16 -
one year, being renewable in the sole discretion of the Issuing
RT Lender, being issued to a named beneficiary acceptable to the
Issuing RT Lender and being otherwise in a form satisfactory to
the Issuing RT Lender; and
(b) standby letters of credit issued by the Issuing RT Lender (i) at
the request, and on the credit, of a U.S. RT Borrower and (ii)
on behalf of such U.S. Borrower and, if applicable, a Subsidiary
of such U.S. RT 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 RT Lender, being
issued to a named beneficiary acceptable to the Issuing RT
Lender and being otherwise in a form satisfactory to the Issuing
RT 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, as applicable, monies lent by the Canadian RT
Lenders or the NRT Lenders to a Canadian RT Borrower or the NRT
Borrower, as the case may be, in United States dollars and upon which
interest accrues at a rate referable to LIBOR or monies lent by the U.S.
RT Lenders to a U.S. RT 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
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
- 17 -
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, in respect of the RT Facility, Prime Rate Loans, BA Rate
Loans, Base Rate Canada Loans, Base Rate New York Loans and LIBOR Loans
and, in respect of the NRT Facility, LIBOR Loans.
"MACAINES" means Macaines Mining Properties Ltd., a corporation
incorporated under the laws of the Cayman Islands.
"MAJORITY LENDERS" (i) means, with respect to a matter relating to a
particular Credit Facility and at any particular time up to the
termination of such Credit Facility pursuant to Section 2.4, such group
of relevant Lenders (and, if there is more than one relevant Lender, at
least two relevant Lenders) whose Individual Commitments with respect to
such Credit Facility aggregate at least two-thirds of the Total
Commitment Amount for such Credit Facility at such time and, at any
particular time after the termination of such Credit Facility pursuant
to Section 2.4 until the Termination Date, such group of relevant
Lenders which have, in the aggregate, extended credit which is
outstanding under such Credit Facility in an amount at least two-thirds
of the aggregate amount of credit outstanding under the such Credit
Facility 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 relevant Lenders which have aggregate
Exposure attributable to such Credit Facility in an amount at least
two-thirds of the aggregate Exposure of all of the relevant Lenders
attributable to such Credit Facility at such time, or (ii) means, if not
referable to a matter relating to a particular Credit Facility, at any
particular time up to the termination of Credit Facilities 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 for both Credit
Facilities at such time and, at any particular time after the
termination of the Credit Facilities 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
- 18 -
time after the Termination Date, such group of Lenders which have
aggregate Exposure attributable to the Credit Facilities in an amount at
least two-thirds of the aggregate Exposure attributable to the Credit
Facilities 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 March 31,
2006, 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.
"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.
"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, the NRT Borrower 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
- 19 -
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 with reference solely 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-CONTINUING RT LENDER" means any Declining RT Lender (or its
successors or permitted assigns) who, pursuant to Section 9.2(b)(ii) has
not had all of its Individual Commitment under the RT Facility acquired
by Approving RT Lenders or Substitute RT Lenders.
"NON-CONTINUING RT LENDER MATURITY DATE" means, with respect to any
Non-Continuing RT Lender, the RT Facility 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.
"NRT FACILITY" means the non-revolving term credit facility established
by the NRT Lenders in favour of the NRT Borrower pursuant to Section
2.1(b).
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"NRT FACILITY AVAILABILITY PERIOD" means the date from and including the
date hereof to and including February 18, 2008.
"NRT FACILITY MATURITY DATE" means February 18, 2012.
"NRT LENDERS" means the financial institutions set out and described as
such in Schedule A as amended from time to time.
"OBLIGORS" means the Borrowers and the Guarantors.
"OCF" means, for any particular Fiscal Quarter, Cash Flow from Operating
Activities for such Fiscal Quarter plus the aggregate of:
(a) Interest Expenses paid in cash for such Fiscal Quarter; and
(b) consolidated income tax expenses of Kinross Canada paid in cash
for such Fiscal Quarter.
"OFFICIAL BODY" means any national government or government of any
political subdivision thereof, or any agency, authority, board, central
bank, monetary authority, commission, department or instrumentality
thereof, or any court, tribunal, grand jury, mediator, arbitrator or
referee, whether foreign or domestic.
"ORDER" means an order, judgment, injunction or other determination
restricting payment by the Issuing RT Lender under or in accordance with
a Letter or extending the Issuing RT Lender's liability beyond the
expiration date stated therein.
"PARACATU MINE" means the Paracatu mine, located 2 kilometres north of
the city of Paracatu, in the northwestern portion of the state of Minas
Gerais, Brazil.
"PARTICIPANT" shall have the meaning ascribed thereto pursuant to
Section 15.5.
"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
(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
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(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;
(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
(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 $100,000,000 in the aggregate for any
Fiscal Year (net of any cash received through equity for
Acquisitions);
(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 ACQUISITION INDEBTEDNESS" means
(a) any Indebtedness of any Company (other than any Non-Guaranteeing
Subsidiary) resulting from a Permitted Acquisition which existed
prior to, and not in contemplation of, the Permitted Acquisition
(or any Indebtedness incurred in refinancing such Indebtedness
of any Company provided that the amount thereof is not
increased), provided the financial covenants set out in Section
11.1(o) - (q) would be met, on a pro forma basis, immediately
after the incurrence of such Indebtedness; or
- 22 -
(b) any Indebtedness of any Non-Guaranteeing Subsidiary resulting
from a Permitted Acquisition which existed prior to, and not in
contemplation of, the Permitted Acquisition (or any Indebtedness
incurred in refinancing such Indebtedness of any Company
provided that the amount thereof is not increased), provided the
financial covenants set out in Section 11.1(o) - (q) would be
met, on a pro forma basis, immediately after the incurrence of
such Indebtedness and such Indebtedness would constitute
Non-Recourse Indebtedness.
"PERMITTED INDEBTEDNESS" means any one or more of the following:
(a) the Secured Obligations;
(b) Permitted Acquisition Indebtedness;
(c) Indebtedness between the Companies provided that Section 11.1(u)
has been complied with;
(d) 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.$100,000,000;
(e) Indebtedness in respect of Hedging Agreements otherwise not
prohibited hereunder and incurred in the ordinary course of
business;
(f) trade payables and other accrued liabilities incurred in the
ordinary course of business and payable in accordance with
customary practices;
(g) Non-Recourse Indebtedness; and
(h) any other Indebtedness provided that the aggregate amount of
such other Indebtedness incurred and outstanding at any time
shall not exceed U.S. $50,000,000.
"PERMITTED JURISDICTIONS" means Canada, the United States, Mexico,
Brazil, Chile, Peru, Argentina, Western Europe, Russia 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;
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(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;
(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;
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(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 Initial Credit Agreement to the extent
approved in writing by the Administrative Agent;
(q) Liens granted pursuant to the Security Documents;
(r) Liens securing up to U.S. $25,000,000 of the Indebtedness
permitted pursuant to paragraph (h) of the definition of
"Permitted Indebtedness";
(s) Liens securing Permitted Acquisition Indebtedness which existed
prior to, and not in contemplation of, any Permitted
Acquisition; and
(t) 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,
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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 relevant
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
9.5.
"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 RT
Lender for a 30 day term on the date of determination and (B) 5/8 of 1%
per annum.
"PRIME RATE LOANS" means monies lent by the Canadian RT Lenders to a
Canadian RT 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
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proceeds derived from any expropriation or other condemnation of any of
the Secured Assets shall not constitute Proceeds of Realization.
"PRO RATA SHARE" means (i) at any particular time with respect to a
particular Lender and referable to a particular Credit Facility, the
ratio of the Individual Commitment of such Lender with respect to such
Credit Facility at such time to the aggregate of the Individual
Commitments of all of the Lenders with respect to such Credit Facility
at such time or (ii) at any particular time with respect to a particular
Lender but not referable to a particular Credit Facility, the ratio of
the aggregate of the Individual Commitments of such Lender with respect
to all Credit Facilities at such time to the aggregate of the Individual
Commitments of all of the Lenders with respect to all Credit Facilities
at such time.
"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 (or its Affiliate)
is a Lender, provided that such Person ceases to be a Qualified Risk
Management Lender if and when:
(a) such Person (or its Affiliate) sells all of its rights and
obligations under the Credit Documents prior to the Termination
Date; or
(b) the Termination Date and the RT Facility Maturity Date have each
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.
"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,
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and (z) the recovery factor applied in calculating recoverable reserves
must be acceptable to the Majority Lenders, acting reasonably.
"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.
"ROF REGISTRATION" means the Registry of Financial Operations (REGISTRO
DE OPERACOES FINANCEIRAS) obtained through the Central Bank of Brazil's
electronic system.
"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
5.3.
"RT BORROWER INSTRUMENT OF ADHESION" means an instrument in the form set
forth in Schedule M to be entered into by an Additional RT Borrower.
"RT BORROWERS" means the Canadian RT Borrowers and the U.S. RT Borrowers
and "RT BORROWER" means any of the RT Borrowers.
"RT FACILITY" means the revolving term credit facility established by
the RT Lenders in favour of the RT Borrowers pursuant to Section 2.1(a).
"RT FACILITY MATURITY DATE" means August 18, 2009 as the same may be
extended from time to time pursuant to Section 9.2.
"RT LENDERS" means, collectively, the Canadian RT Lenders and the U.S.
RT Lenders and "RT LENDER" shall mean any Canadian RT Lender, any U.S.
RT Lender or any financial institution which, together with its
Affiliate or its separately domiciled branch, agency or lending office,
constitutes a Canadian RT Lender and a U.S. RT Lender, and, after the
Termination Date, "RT LENDER" shall mean each Person that was an RT
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 RT Lender shall not, for the purposes of considering any
Extension Request pursuant to Section 9.2(a) only, be considered to be
an RT Lender.
"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.
"SALE LEASEBACK" shall mean any transaction or series of related
transactions pursuant to which the Borrowers or any of the Material
Subsidiaries (a) sells,
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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.
"SCHEDULE I RT LENDERS" means the RT Lenders that are listed in Schedule
I to the BANK ACT (Canada).
"SCHEDULE II RT LENDERS" means the RT Lenders that are listed in
Schedule II to the BANK ACT (Canada).
"SCHEDULE III RT LENDERS" means the RT Lenders that are listed in
Schedule III to the BANK ACT (Canada).
"SCHEDULE I REFERENCE RT LENDERS" means the Administrative Agent and up
to two other Schedule I RT Lenders, which other Schedule I RT Lenders
shall be acceptable to the Administrative Agent and Kinross Canada
acting reasonably.
"SCHEDULE II AND III REFERENCE RT LENDERS" means a reference group of up
to three Schedule II RT Lenders and Schedule III RT Lenders, the
composition of which shall be acceptable to the Administrative Agent and
Kinross Canada acting reasonably.
"SCOTIABANK NRT FACILITY INDIVIDUAL COMMITMENT - TRANCHE A" means, with
respect to The Bank of Nova Scotia and the NRT Facility, the amount set
forth as such in Schedule A attached hereto, as reduced or amended from
time to time pursuant to, as applicable, Sections 2.2, 2.3, 8.3, 9.3.
9.4 and 15.5.
"SCOTIABANK NRT FACILITY INDIVIDUAL COMMITMENT - TRANCHE B" means, with
respect to The Bank of Nova Scotia and the NRT Facility, the amount set
forth as such in Schedule A attached hereto, as reduced or amended from
time to time pursuant to, as applicable, Sections 2.2, 2.3, 8.3, 9.3,
9.4 and 15.5.
"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
- 29 -
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 or any of its Affiliates
on the other hand (but only for so long as such Lender remains a
Qualified Risk Management Lender).
"SECURITY" means the collateral security constituted by the Security
Documents.
"SECURITY DOCUMENTS" shall mean the security documents (as the same may
be amended, modified, supplemented, restated or replaced from time to
time) which, in the reasonable opinion of the Administrative Agent, are
required to be entered into from time to time by the Obligors in favour
of the Administrative Agent for the benefit of the Finance Parties in
order to grant directly or indirectly to the Administrative Agent a 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(z) and (aa) 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 10% 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 5% of the
- 30 -
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".
"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
equity in Non-Recourse Subsidiaries.
"TAX ACT" means the INCOME TAX ACT (Canada), as amended from time to
time, and any successor statute and including all regulations issued
under all such statutes.
"TAXES" means all taxes, assessments, fees, rates, levies, imposts,
deductions, dues, duties and other charges of any nature, including any
interest, fines, penalties or other liabilities with respect thereto,
imposed, levied, collected, withheld or assessed by any Official Body
(including a federal, state, provincial, municipal or foreign Official
Body), and whether disputed or not.
"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
- 31 -
Agreement have been satisfied in full and the Credit Facilities have
terminated pursuant to Section 2.4.
"TOTAL COMMITMENT AMOUNT" means, with respect to a particular Credit
Facility or both Credit Facilities, as the context so requires, at any
particular time, the aggregate of the Individual Commitments with
respect thereto of all of the relevant Lenders at such time.
"TOTAL INDEBTEDNESS" means, at any particular time, the aggregate
Indebtedness of Kinross Canada on a consolidated basis.
"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 CAYMAN" means TVX Cayman Inc., a corporation incorporated under the
laws of the Cayman Islands.
"UCC" means the Uniform Commercial Code of any applicable state of the
United States of America as in effect from time to time.
"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. 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. RT BORROWERS" means Kinross U.S.A., Fairbanks U.S., Round Mountain
and each Additional U.S. RT Borrower and "U.S. RT BORROWER" means any of
the U.S. RT Borrowers.
"U.S. RT LENDERS" means the financial institutions set out and described
as such in Schedule A, as amended from time to time.
"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.
- 32 -
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.
1.8 NON-BANKING DAYS
Subject to Section 7.4(c), 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
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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 Bankers' Acceptance, the U.S. Dollar Equivalent of
the face amount thereof; and
(d) in the case of a Letter denominated in U.S. dollars, the contingent
liability of the Issuing RT Lender thereunder (or, if the Letter is
denominated in Canadian dollars, the U.S. Dollar Equivalent of the
contingent liability of the Issuing RT Lender thereunder).
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.
1.13 JOINT AND SEVERAL RT OBLIGATIONS
All obligations hereunder which are stated to be obligations of the RT
Borrowers or any one of them to the RT Lenders shall, to the extent permitted by
applicable law, be joint and several obligations of the RT Borrowers. The
obligation of any RT Borrower (hereinafter, individually in this sentence, the
"FIRST MENTIONED RT BORROWER") with respect to its joint and several liability
for the credit extended to the other RT Borrowers shall not be wholly or
partially satisfied by such first mentioned RT Borrower repaying the credit
extended to such first mentioned RT Borrower hereunder. With respect to the
joint and several obligations of the RT Borrowers, the RT Lenders shall not be
bound to exhaust their recourse against any
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RT Borrower or others or any security or guarantees it may at any time hold
before being entitled to payment from any RT Borrower and each RT Borrower
renounces all benefits of discussion and division.
ARTICLE 2
CREDIT FACILITIES
2.1 ESTABLISHMENT OF CREDIT FACILITIES
Subject to the terms and conditions hereof:
(a) the RT Lenders hereby establish in favour of the RT Borrowers a
revolving term credit facility (the "RT FACILITY") in the amount of
U.S.$300,000,000 (as such amount may be reduced pursuant to Section 2.3)
or the Canadian Dollar Equivalent thereof, provided that the aggregate
amount of outstanding credit extended to the Canadian RT Borrowers shall
not at any time exceed the lesser of (i) an amount equal to 80% of the
amount of the RT Facility at such time and (ii) the aggregate of the
Individual Commitments of the RT Lenders which include Canadian RT
Lenders at such time; and
(b) the NRT Lenders hereby establish in favour of the NRT Borrower a
non-revolving term credit facility (the "NRT FACILITY") in the amount of
U.S.$200,000,000 (as such amount may be reduced pursuant to Section
2.3).
2.2 LENDERS' COMMITMENTS
Subject to the terms and conditions hereof, the relevant Lenders
severally agree to extend credit to the relevant Borrowers under the relevant
Credit Facility from time to time provided that the aggregate amount of credit
extended by each relevant Lender under the relevant Credit Facility shall not at
any time exceed the Individual Commitment of such Lender under such Credit
Facility and further provided that the aggregate amount of credit outstanding
under such Credit Facility shall not at any time exceed the amount of such
Credit Facility. All credit requested under a particular Credit Facility shall
be made available to the relevant Borrower contemporaneously by all of the
relevant Lenders. Each relevant 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; provided, however, The Bank of Nova Scotia
shall not be obligated, in connection with that portion of any extension of
credit to the NRT Borrower under the Scotiabank NRT Facility Individual
Commitment - Tranche B that has been participated, to extend credit in excess of
the aggregate amount of credit received by The Bank of Nova Scotia in
immediately available funds from the relevant participant. 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 a particular 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 such Credit Facility. The failure of
any relevant Lender to make available to the relevant Borrower its Pro Rata
Share of any credit under a particular Credit Facility shall not relieve any
other relevant Lender of its obligation hereunder to make available to such
Borrower its Pro Rata Share of such credit under such Credit Facility.
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2.3 REDUCTION OF CREDIT FACILITIES
The RT Borrowers may, from time to time and at any time, by notice in
writing to the Administrative Agent, permanently reduce the RT 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 RT Facility will be
permanently reduced with respect to repayment made in accordance with Section
9.1 or 9.2. Any repayment or prepayment of credit outstanding under the RT
Facility (other than as set forth above) shall not cause a reduction in the
amount of the RT Facility. At 4:00 p.m. (Toronto time) on the final day of the
NRT Facility Availability Period, the amount of the NRT Facility shall be
permanently reduced to the aggregate amount outstanding under the NRT Facility
at that time (the "NRT REPAYMENT AMOUNT"). The amount of the NRT Facility will
not be reduced by any repayment under the NRT Facility pursuant to Section 9.9,
but will be reduced at the time, and by the amount, of any prepayment or
repayment of the NRT Facility pursuant to Sections 9.3 or 9.4. 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 relevant Credit
Facility. Upon any reduction of a Credit Facility (other than any reduction of
the RT Facility pursuant to Section 9.1(b)), the Individual Commitment of each
relevant Lender with respect to such Credit Facility shall thereupon be reduced
by an amount equal to such relevant Lender's Pro Rata Share of the amount of
such reduction of such Credit Facility. Upon any reduction of the RT Facility
pursuant to Section 9.1(b), the Individual Commitment of the relevant
Non-Continuing RT Lender with respect to the RT Facility shall thereupon be
reduced by an amount equal to such reduction of the RT Facility.
2.4 TERMINATION OF CREDIT FACILITIES
(a) A Credit Facility shall terminate upon the earliest to occur of:
(i) the termination of such Credit Facility in accordance
with Section 13.1;
(ii) the date on which such Credit Facility has been
permanently reduced to zero pursuant to Section 2.3; and
(iii) the RT Facility Maturity Date, in the case of the RT
Facility, and the NRT Facility Maturity Date, in the
case of the NRT Facility.
(b) Upon the termination of a Credit Facility, the right of the
relevant Borrowers to obtain any credit thereunder and all of
the obligations of the relevant Lenders to extend credit under
such Credit Facility shall automatically terminate.
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ARTICLE 3
GENERAL PROVISIONS RELATING TO CREDITS
3.1 TYPES OF CREDIT AVAILMENTS
Subject to the terms and conditions hereof:
(a) each Canadian RT Borrower may obtain credit under the RT Facility from
the Canadian RT Lenders through the Canadian Branch of Account by way of
one or more Prime Rate Loans, Base Rate Canada Loans, LIBOR Loans,
Bankers' Acceptances and Letters;
(b) each U.S. RT Borrower may obtain credit under the RT Facility from the
U.S. RT Lenders through the U.S. Branch of Account by way of one or more
Base Rate New York Loans, LIBOR Loans and U.S. dollar denominated
Letters; and
(c) the NRT Borrower may obtain credit under the NRT Facility from the
NRT Lenders through the Canadian Branch of Account by way of one or more
LIBOR Loans.
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 and by way of LIBOR Loans shall be in a minimum amount of U.S.
$1,000,000.
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 under the relevant Credit
Facility prior to 11:00 a.m. (Toronto time) on the date of the extension of
credit. The Administrative Agent shall, upon fulfilment by the relevant Borrower
of the terms and conditions set forth in Article 12 and unless otherwise
irrevocably authorized and directed in the Drawdown Notice, in respect of either
Credit Facility, 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). 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 thereon at the then prevailing interbank rate for each day from
the date such amount is made available to
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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 a 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 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 RT Borrower a
Drawdown Notice, Rollover Notice or Conversion Notice requesting a
drawdown of, a
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rollover of or a conversion into Bankers' Acceptances, the
Administrative Agent shall notify each Canadian RT 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 RT
Lender's Pro Rata Share of such extension of credit. The Administrative
Agent shall also at such time notify the relevant RT Borrower of each
Canadian RT Lender's Pro Rata Share of such extension of credit. Each
Canadian RT 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 RT Borrower which are presented to it for
acceptance and which have an aggregate face amount equal to such
Canadian RT 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 RT Lender shall
purchase the Bankers' Acceptances which it has accepted for a purchase
price equal to the BA Discounted Proceeds therefor. Each Canadian RT
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 Canadian RT Borrower shall provide for payment to the
accepting Canadian RT 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 Canadian RT Borrower hereby waives presentment for payment of
Bankers' Acceptances by the Canadian RT Lenders and any defence to
payment of amounts due to a Canadian RT Lender in respect of a Bankers'
Acceptance which might exist by reason of such Bankers' Acceptance being
held at maturity by such Canadian RT Lender which accepted it and agrees
not to claim from such Canadian RT Lender any days of grace for the
payment at maturity of Bankers' Acceptances.
(c) In the case of a drawdown by way of Bankers' Acceptance, each
Canadian RT Lender shall, forthwith after the acceptance of drafts of
the relevant Canadian RT 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 Canadian RT Borrower of the terms and
conditions set forth in Article 12, make such BA Proceeds available to
the relevant Canadian RT 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 RT
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 Canadian RT Borrower as
aforesaid, the relevant Canadian RT Borrower shall pay to the
Administrative Agent on behalf of the Canadian RT 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.
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(d) Any Bankers' Acceptance may, at the option of the relevant Canadian
RT Borrower, be executed in advance by or on behalf of the relevant
Canadian RT Borrower, by mechanically reproduced or facsimile signatures
of any two officers of the relevant Canadian RT Borrower who are
properly so designated and authorized by the relevant Canadian RT
Borrower from time to time. Any Bankers' Acceptance so executed and
delivered by the relevant Canadian RT Borrower to the Canadian RT
Lenders shall be valid and shall bind the relevant Canadian RT Borrower
and may be dealt with by the Canadian RT Lenders to all intents and
purposes as if the Bankers' Acceptance had been signed in the executing
officers' own handwriting.
(e) Each relevant Canadian RT Borrower shall notify the Canadian RT
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
RT 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 RT Borrowers hereby indemnify and agree to hold harmless the
Canadian RT 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 RT 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 RT Lenders.
(g) Each Canadian RT Lender agrees that, in respect of the safekeeping
of executed drafts of the Canadian RT Borrowers which are delivered to
it for acceptance 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 RT
Lender shall, at the option of such Canadian RT 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 RT Borrower hereby authorizes each
Canadian RT Lender, and appoints each Canadian RT Lender as such RT
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'
- 40 -
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 RT Borrower by such RT Lender shall
bind such RT Borrower as fully and effectively as if so performed by an
authorized officer of such RT Borrower. Each draft of a Bankers'
Acceptance completed, signed or endorsed by a Canadian RT Lender shall
mature on the last day of the term thereof.
3.5 BA RATE LOANS
If, in the sole judgement of a Canadian RT Lender, such Canadian RT
Lender is unable to extend credit by way of Bankers' Acceptances in accordance
with this agreement, such Canadian RT Lender shall give an irrevocable notice to
such effect to the Administrative Agent and the relevant Canadian RT Borrower
prior to 10:00 a.m. (Toronto time) on the date of the requested credit extension
and shall make available to such Canadian RT 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 RT
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 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 RT Lender to obtain the same effective rate as if such Canadian RT
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 RT 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 RT
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 RT Lender shall, at the option of such Canadian RT Lender, be evidenced
by a promissory note in the form of a depository note made payable originally to
and deposited with The Canadian Depository for Securities Limited pursuant to
the DEPOSITORY BILLS AND NOTES ACT (Canada).
3.6 TIMING OF CREDIT AVAILMENTS
No Bankers' Acceptance, BA Rate Loan or LIBOR Loan, as applicable, under
a particular Credit Facility may have a maturity date later than the relevant
date described in Section 2.4(a)(iii).
3.7 INABILITY TO FUND U.S. DOLLAR ADVANCES IN CANADA UNDER RT FACILITY
If a Canadian RT Lender determines in good faith, which determination
shall be final, conclusive and binding on the Canadian RT Borrowers, and the
Administrative Agent notifies the Canadian RT Borrowers that (i) by reason of
circumstances affecting financial markets inside or outside Canada, deposits of
United States dollars are unavailable to such Canadian RT 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 Xxxxxxxxx Xxxx Xxxx
- 00 -
Xxxxxx, 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 RT
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 RT 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 RT
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 RT 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 RT Borrowers to obtain any affected
Base Rate Canada Loan or LIBOR Loan from such Canadian RT Lender
shall be suspended until such Canadian RT Lender determines that
the circumstances causing such suspension no longer exist and
such Canadian RT Lender so notifies the Canadian RT 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 RT Borrowers to obtain credit by way of a
LIBOR Loan is suspended, it shall, subject to the Canadian RT
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 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 RT 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 RT Borrowers to obtain credit by
way of a Base Rate Canada Loan is suspended, it shall, subject
to the Canadian RT 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
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Rate Canada Loan and having an Interest Period of one month or,
if the Canadian RT 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.
3.8 INABILITY TO FUND LIBOR LOAN IN THE UNITED STATES UNDER RT FACILITY
If a U.S. RT Lender determines in good faith, which determination shall
be final, conclusive and binding on the U.S. RT 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. RT 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. RT Lender or any
relevant financial market, which results in LIBOR no longer representing the
effective cost to such RT 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. RT
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. RT Borrowers to obtain any credit in United
States dollars by way of LIBOR Loans, shall be suspended until such U.S.
RT Lender determines, acting reasonably, that the circumstances causing
such suspension no longer exist and such U.S. RT Lender so notifies the
U.S. RT Borrowers;
(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. RT Borrowers to obtain credit by way of a LIBOR Loan is
suspended, it shall, subject to the U.S. RT 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. RT Lender which can bear interest at LIBOR or
the amount of LIBOR Loans which such U.S. RT Lender can make in the United
States, such U.S. RT Lender agrees to use good
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faith to allocate, in reasonable fashion, the available amounts amongst the U.S.
RT Borrowers as is reasonably practicable.
3.8A INABILITY TO FUND U.S. DOLLAR ADVANCES UNDER THE NRT FACILITY
If an NRT Lender determines in good faith, which determination shall be
final, conclusive and binding on the NRT Borrower, and the Administrative Agent
notifies the NRT Borrower that (i) by reason of circumstances affecting
financial markets inside or outside Canada, deposits of United States dollars
are unavailable to such NRT 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, (iii) the making or continuation of United States
dollar advances in Canada or the United States as applicable, has been made
impracticable by the occurrence of a contingency (other than a mere increase in
rates payable by such NRT 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 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 chartered
bank would comply) or in the interpretation thereof by any Official Body
affecting such NRT Lender or any relevant financial market, which results in
LIBOR no longer representing the effective cost to such NRT 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 chartered bank would comply) or any change therein or any
interpretation or application thereof by any Official Body has made it unlawful
for such NRT Lender to make or maintain or give effect to its obligations in
respect of United States dollar advances in Canada or in the United States, as
applicable, as contemplated herein, then
(d) the right of the NRT Borrower to obtain any affected LIBOR Loan from
such NRT Lender shall be suspended until such NRT Lender determines that
the circumstances causing such suspension no longer exist and such NRT
Lender so notifies the NRT Borrower, such NRT Lender and the NRT
Borrower shall negotiate such other availment as the NRT Lenders and the
NRT Borrower may mutually agree upon;
(e) if any affected LIBOR Loan is not yet outstanding, any applicable
Drawdown Notice shall be cancelled and the advance requested therein
shall not be made;
(f) if any LIBOR Loan is already outstanding at any time under the NRT
Facility, when the right of the NRT Borrower to obtain credit by way of
a LIBOR Loan is suspended, any such outstanding LIBOR Loan shall be
converted on the last day of the Interest Period applicable thereto (or
on such earlier date as may be required by applicable law) to such other
availment (in the principal amount of such LIBOR Loan) as the NRT
Lenders and the NRT Borrower may mutually agree upon.
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3.9 TIME AND PLACE OF PAYMENTS
Unless otherwise expressly provided herein, the Borrowers shall make all
payments 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.
3.10 REMITTANCE OF PAYMENTS
Forthwith after the withdrawal from the applicable Designated 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 3.9, the
Administrative Agent shall, subject to Sections 3.3 and 8.3 remit to each
relevant Lender, in immediately available funds, such Lender's Pro Rata Share of
such payment (except 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); 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 a particular 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. RT Lenders pursuant to Section
7.6, the Pro Rata Share with respect to each U.S. RT Lender which has a related
Canadian RT Lender shall be calculated on the basis that (i) such RT Lender's
Individual Commitment with respect to the RT Facility shall be the amount of
such RT Lender's Individual Commitment with respect to the RT Facility otherwise
determined hereunder less the amount of outstanding credit extended to the
Canadian RT Borrowers hereunder by the related Canadian RT Lender and (ii) the
Total Commitment Amount with respect to the RT Facility shall be adjusted
accordingly.
3.11 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 drawn upon and all other amounts
becoming due to and being paid to the Lenders or the
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Administrative Agent hereunder, including acceptance 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.
3.12 GENERAL PROVISIONS RELATING TO ALL LETTERS
(a) Each relevant RT Borrower hereby acknowledges and confirms to the
Issuing RT Lender that the Issuing RT 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 RT Lender pursuant to a Letter shall not be
withheld by the Issuing RT Lender by reason of any matters in dispute
between the beneficiary thereof and such RT Borrower. The sole
obligation of the Issuing RT 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 RT
Lender is only obliged to determine that the Draft purports to comply
with the terms and conditions of the relevant Letter.
(b) The Issuing RT 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 RT Borrower unconditionally assumes all risks with respect
to the same. Each relevant RT 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 RT 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 RT 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 RT Lender, the Issuing RT 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;
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(v) payment by the Issuing RT Lender under such Letter against
presentation of a sight draft or certificate which does not
comply with the terms of such Letter;
(vi) any non-application or misapplication by the beneficiary of such
Letter of the proceeds of any drawing under such Letter; (vii)
the surrender or impairment of any Security; or
(viii) any reduction or withdrawal of the Issuing RT Lender's credit
rating by any rating agency.
The obligations of each relevant RT 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 RT
Lender or any of the Issuing RT 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 RT Borrower and
shall not place the Issuing RT Lender or any of its correspondents under
any resulting liability to such RT Borrower. Without limiting the
generality of the foregoing, the Issuing RT 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 RT Borrower
covenants that it will not take any steps, issue any instructions to the
Issuing RT Lender or any of its correspondents or institute any
proceedings intended to derogate from the right or ability of the
Issuing RT Lender or its correspondents to honour and pay any Draft or
Drafts.
(e) Each relevant RT Borrower agrees that the RT Lenders, the Issuing RT
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 RT
Lenders, the Issuing RT Lender or the Administrative Agent or any other
person in connection therewith, other than on account of the Issuing RT
Lender's gross negligence or wilful misconduct.
(f) Save to the extent expressly provided otherwise in this Section
3.14, the rights and obligations between the Issuing RT Lender and the
relevant RT Borrower with respect to each Letter shall be determined in
accordance with the applicable provisions of the (i) Uniform Customs and
Practice for Documentary Credits (1993 Revision), ICC Publications 500
or (ii) the International Standby Practices - ISP98, ICC Publication No.
590, as applicable.
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3.13 NOTICE PERIODS
Each Drawdown Notice, Rollover Notice, Conversion Notice and Prepayment
Notice shall be given to the Administrative Agent:
(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 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.
3.14 ADMINISTRATIVE AGENT'S DISCRETION TO ALLOCATE
Notwithstanding the provisions of Section 3.2, 3.4(a) and 9.6(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 under a particular Credit
Facility by all of the relevant Lenders, provided that no such allocation shall
result in the aggregate amount of credit extended hereunder by any Lender
exceeding such Lender's Individual Commitment under such Credit Facility.
ARTICLE 4
DRAWDOWNS
4.1 DRAWDOWN NOTICE
Subject to Sections 3.1, 3.7, 3.8 and 3.8A and 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 3.13 and specifying, as
applicable:
(a) the Credit Facility under which the credit is to be extended;
(b) the applicable Borrower;
(c) the date the credit is to be obtained;
(d) whether the credit is to be obtained by way of Prime Rate Loan, Base
Rate Canada Loan, Base Rate New York Loan, LIBOR Loan, Bankers'
Acceptance or Letter;
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(e) in the case of any credit to be obtained by way of a Loan, the
principal amount of the Loan;
(f) if the credit is to be obtained by way of LIBOR Loan, the applicable
Interest Period;
(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 RT Borrower as well as on behalf of the
applicable RT 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 RT Borrower as well as on behalf of
the applicable RT Borrower, such RT 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 RT Lender on demand for the full amount
of each and any Draft presented to and paid by the Issuing RT Lender in
accordance with such Letter.
ARTICLE 5
ROLLOVERS
5.1 BANKERS' ACCEPTANCES
Provided that the relevant Canadian RT Borrower has, by giving notice to
the Administrative Agent in accordance with Section 5.3, requested the Canadian
RT Lenders to accept its drafts to replace all or a portion of outstanding
Bankers' Acceptances as they mature, each Canadian RT Lender shall, on the
maturity of such Bankers' Acceptances and concurrent with the payment by the
relevant Canadian RT Borrower to such Canadian RT Lender of the face amount of
such Bankers' Acceptances or the portion thereof to be replaced, accept the
relevant Canadian RT 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 3.7, 3.8 and 3.8A and provided that the relevant
Borrower has, by giving notice to the Administrative Agent in accordance with
Section 5.3, 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
- 49 -
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.
5.3 ROLLOVER NOTICE
The notice to be given to the Administrative Agent pursuant to Section
5.1 or 5.2 ("ROLLOVER NOTICE") shall be irrevocable, shall be given in
accordance with Section 3.13, shall be in substantially the form of Schedule F
hereto and shall specify:
(a) the Credit Facility under which the rollover is to occur;
(b) the applicable Borrower;
(c) the maturity date of the maturing Bankers' Acceptances or the
maturing LIBOR Loan, as the case may be;
(d) 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;
(e) in the case of a maturing LIBOR Loan, the Interest Period or
Interest Periods of the replacement LIBOR Loans; and
(f) 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.
5.4 ABSENCE OF NOTICE. Subject to Sections 3.7, 3.8 and 3.8A, in the absence
of a Rollover Notice within the appropriate time periods referred to herein, a
maturing LIBOR Loan in favour of the NRT Borrower shall be automatically rolled
over into a LIBOR Loan with an Interest Period of one month.
5.5 ROLLOVER BY LENDERS. Upon written notice to such effect to the NRT
Borrower at such time as a Default has occurred and is continuing, the
Administrative Agent may, as applicable, on the maturity date of a LIBOR Loan,
rollover such LIBOR Loan into a LIBOR Loan having an Interest Period of one
month or such other period as the NRT Lenders may determine, as though a notice
to such effect had been given in accordance with Section 5.3.
ARTICLE 6
CONVERSIONS
6.1 CONVERTING LOAN TO OTHER TYPE OF LOAN
Subject to Sections 3.1, 3.7, 3.8 and 3.8A 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) under the RT Facility
into another type of Loan (other than a BA Rate Loan), each relevant
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Lender shall, on the date of conversion (which, in the case of the conversion of
all or a portion of an outstanding LIBOR Loan, shall be the date on which such
Loan matures), continue to extend credit to 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 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 RT Borrower has, by giving notice to
the Administrative Agent in accordance with Section 6.4, requested the Canadian
RT Lenders to accept its drafts to replace all or a portion of an outstanding
Loan and, if a LIBOR Loan or a BA Rate Loan is to be replaced the date of
conversion is the date on which such Loan matures, each Canadian RT Lender
shall, on the date of conversion and concurrent with the payment by the relevant
Canadian RT Borrower to each Canadian RT Lender of the principal amount of such
outstanding Loan or the portion thereof which is being converted, accept the
relevant Canadian RT 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
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 RT Lender shall, on the maturity date of a Bankers'
Acceptance which such Canadian RT Lender has accepted, pay to the holder thereof
the face amount of such Bankers' Acceptance. Subject to Sections 3.1, 3.7, 3.8
and 3.8A and provided that the relevant Canadian RT Borrower has, by giving
notice to the Administrative Agent in accordance with Section 6.4, requested the
Canadian RT Lenders to convert all or a portion of outstanding maturing Bankers'
Acceptances into a Loan, each Canadian RT Lender shall, upon the maturity date
of such Bankers' Acceptances and the payment by such Canadian RT Lender to the
holders of such Bankers' Acceptances of the aggregate face amount thereof and
concurrent with the payment by the relevant Canadian RT Borrower to such
Canadian RT Lender of the aggregate face amount of such Bankers' Acceptances,
extend credit to the relevant Canadian RT 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 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 RT Lender has funded the relevant
Canadian RT 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:
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(a) the applicable Borrower;
(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; and
(g) 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 3.7, 3.8 and 3.8A, 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 RT Borrower shall be
automatically converted to a Base Rate Canada Loan, a maturing LIBOR Loan in
favour of a U.S. RT Borrower shall automatically be converted to a Base Rate New
York 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, as
applicable, on the maturity date of a Bankers' Acceptance, BA Rate Loan or a
LIBOR Loan, convert such Bankers' Acceptance or BA Rate Loan into a Prime Rate
Loan, convert such LIBOR Loan in favour of a Canadian RT Borrower into a Base
Rate Canada Loan and convert such LIBOR Loan in favour of a U.S. RT Borrower
into a Base Rate New York Loan, as though a notice to such effect had been given
in accordance with Section 6.4.
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6.7 CONVERSION OF LIBOR LOANS UNDER NRT FACILITY. No LIBOR Loan extended
under the NRT Facility may be converted pursuant to the provisions of this
Article 6.
ARTICLE 7
INTEREST AND FEES
7.1 INTEREST RATES
The Borrowers shall pay to the relevant Lenders, in accordance with
Section 3.9, interest on the outstanding principal amount from time to time of
each Loan (other than a BA Rate Loan) and on overdue interest 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 RT Borrower
or the NRT Borrower, LIBOR plus the Applicable Rate; and
(v) in the case of each LIBOR Loan in favour of a U.S. RT Borrower,
LIBOR (Reserve Adjusted) plus the Applicable Rate.
7.2 CALCULATION AND PAYMENT OF INTEREST
(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 on the outstanding principal amount from time to time of
each LIBOR Loan and Base Rate New York 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 360.
(c) Accrued interest shall be paid,
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(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 on LIBOR Loans, on the last day of the
applicable Interest Period; provided that, in the case of
Interest 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 during the
term of such Interest Period and on the date on which such LIBOR
Loans are otherwise required to be repaid.
7.3 GENERAL INTEREST RULES
(a) For the purposes hereof, whenever interest is calculated on the
basis of a year of 360 or 365 days, each rate of interest determined
pursuant to such calculation expressed as an annual rate for the
purposes of the INTEREST ACT (Canada) is equivalent to such rate as so
determined multiplied by the actual number of days in the calendar year
in which the same is to be ascertained and divided by 360 or 365 days,
respectively.
(b) Interest on each Loan and on overdue interest thereon shall be
payable in the currency in which such Loan is denominated during the
relevant period.
(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 or interest) 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.
7.4 SELECTION OF INTEREST PERIODS
With respect to each LIBOR Loan, the applicable Borrower shall specify
in the Drawdown Notice, Rollover Notice or Conversion Notice, the duration of
the Interest Period provided that:
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(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) the first Interest Period for a LIBOR Loan shall commence on and
include the day on which credit is obtained by way of such Loan and each
subsequent Interest Period applicable thereto shall commence on and
include the date of the expiry of the immediately preceding Interest
Period applicable thereto; and
(c) if any Interest Period would end on a day which is not a Banking
Day, such Interest 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 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 RT Borrower under the
RT Facility pursuant hereto, such RT Borrower shall pay to the Canadian
RT 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 RT 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 RT 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 paid by the relevant RT 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 STANDBY FEES
(a) In respect of the RT Facility, upon the first Banking Day following
the completion of each Fiscal Quarter and on the termination of the RT
Facility, the RT Borrowers shall pay, in accordance with Section 3.9, to
the U.S. RT Lenders (to the extent such U.S. RT Lenders are not also
Canadian RT Lenders) and otherwise to the Canadian RT 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
with respect to the RT Facility, 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
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RT Borrower shall be payable to the Canadian RT Lenders and any such
fees payable by the U.S. RT Borrowers shall be payable to the U.S. RT
Lenders.
(b) In respect of the NRT Facility, upon the first Banking Day following
the completion of each Fiscal Quarter during the NRT Facility
Availability Period and on the final Banking Day of the NRT Facility
Availability Period, the NRT Borrower shall pay, in accordance with
Section 3.9, to the NRT Lenders, in arrears, a standby fee calculated at
a rate per annum, on the basis of a year of 365 days, equal to the
Applicable Rate on the Available Credit with respect to the NRT
Facility, such fee to accrue daily from the date of the execution and
delivery of this agreement to and including the date of payment.
7.7 LETTER FEES
(a) The relevant RT Borrower shall pay to the relevant RT Lenders (ie. a
Canadian RT Borrower shall pay to the Canadian RT Lenders and a U.S. RT
Borrower shall pay to the U.S. RT Lenders), in accordance with Section
3.9, 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 RT Borrower shall
from time to time pay to the Issuing RT Lender its usual and customary
fees (at the then prevailing rates) for the amendment, delivery and
administration of letters of credit such as the Letters. Each such
payment is non-refundable and fully earned when due.
(b) With respect to each Letter issued hereunder, the relevant RT
Borrower shall pay to the Issuing RT Lender, in accordance with Section
3.9, 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 RT Lenders other
than the Issuing RT Lender have agreed to reimburse the Issuing RT
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.
7.8 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)(iii) 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
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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:
(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
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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) 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 a 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 such 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 a particular
Credit Facility and the rights and obligations of such Assenting Lender under
each of the other Credit Documents to the extent they relate to such 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 such Credit Facility and rights and obligations under each of
the other Credit Documents to the extent they relate to such 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 9.6. Upon the assumption of the Affected
Lender's Individual Commitments as aforesaid by an Assenting
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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 RT 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 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 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 repayment of a LIBOR 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 RT
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 RT Lender and each of their respective
Affiliates, 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
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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 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.
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(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
(a) Any and all payments made by any Borrower hereunder or under any
other Finance Document (any such payment being hereinafter referred to
as a "PAYMENT") to or for the benefit of the Administrative Agent or any
Lender shall be made without set-off or counterclaim, and free and clear
of, and without deduction or withholding for, or on account of, any and
all present or future Taxes, except to the extent such deduction or
withholding is required by law or the administrative practice of any
Official Body. If any Borrower shall be so required to deduct or
withhold any Taxes from or in respect of any Payment made to or for the
benefit of the Administrative Agent or any Lender, such Borrower shall:
(i) promptly notify the Administrative Agent of such requirement;
(ii) pay to the Administrative Agent or such Lender, as the case may
be, in addition to the Payment to which the Administrative Agent
or such Lender is otherwise entitled, such additional amount as
is necessary to ensure that the net amount actually received by
the Administrative Agent or such Lender (free and clear of, and
net of, any such Taxes, including the full amount of any Taxes
required to be deducted or withheld from any additional amount
paid by such Borrower under this Section 8.6(a), whether
assessable against such Borrower, the Administrative Agent or
such Lender) equals the full amount the Administrative Agent or
such Lender, as the case may be, would have received had no such
deduction or withholding been required;
(iii) make such deduction or withholding;
(iv) pay to the relevant Official Body in accordance with applicable
law the full amount of Taxes required to be deducted or withheld
(including the full amount of Taxes required to be deducted or
withheld from any additional amount paid by such Borrower to the
Administrative Agent or such Lender under this Section 8.6(a)),
within the time period required by applicable law; and
(v) as promptly as possible thereafter, forward to the
Administrative Agent or such Lender, as the case may be, an
original official receipt (or a certified copy), or other
documentation reasonably acceptable to the Administrative Agent
and such Lender, evidencing such payment to such Official Body.
(b) If the Administrative Agent or any Lender is subject to Taxes under
Part XIII of the Tax Act (or any successor part) in respect of any
Payment made by any
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Borrower but such Taxes are not levied by way of deduction or
withholding (all such Taxes being "NON-WITHHELD PART XIII TAXES"), such
Borrower shall pay to the Administrative Agent or such Lender, as the
case may be, at the time such Borrower makes such Payment and in
addition to such Payment, such additional amount as is necessary to
ensure that the total amount received by the Administrative Agent or
such Lender, as the case may be, is equal to the Payment plus the amount
of the Non-Withheld Part XIII Taxes exigible in respect of the aggregate
of the Payment and the additional amount payable under this Section
8.6(b).
(c) In addition, the Borrowers agree to pay any and all present or
future stamp or documentary taxes or excise or property taxes, charges
or levies of a similar nature, which arise from any Payment or from the
execution, delivery or registration of, or otherwise with respect to,
the Finance Documents and the transactions contemplated thereby (any
such amounts being hereinafter referred to as "OTHER TAXES").
(d) Each Borrower hereby indemnifies and holds harmless the
Administrative Agent and each Lender, on an after-Taxes basis, for the
full amount of Taxes and Other Taxes, including Non-Withheld Part XIII
Taxes, interest, penalties and other liabilities, levied, imposed or
assessed against (and whether or not paid directly by) the
Administrative Agent or such Lender, as applicable, and for all
expenses, resulting from or relating to any Borrower's failure to:
(i) remit to the Administrative Agent or such Lender the
documentation referred to in Section 8.6(a)(v);
(ii) pay any Taxes or Other Taxes when due to the relevant Official
Body (including, without limitation, any Taxes imposed by any
Official Body on amounts payable under this Section 8.6)); or
(iii) pay to the Administrative Agent or applicable Lender any
Non-Withheld Part XIII Taxes in accordance with Section 8.6(b),
whether or not such Taxes or Other Taxes were correctly or legally
assessed. The Administrative Agent or any Lender who pays any Taxes or
Other Taxes (other than Non-Withheld Part XIII Taxes), and the
Administrative Agent or any Lender who pays any Non-Withheld Part XIII
Taxes in excess of the amount (if any) paid by a Borrower on account
thereof under Section 8.6(b), shall promptly notify such Borrower of
such payment, provided, however, that failure to provide such notice
shall not detract from, or compromise, the obligations of the Borrowers
under this Section 8.6. Payment pursuant to this indemnification shall
be made within 30 days from the date the Administrative Agent or the
relevant Lender, as the case may be, makes written demand therefor
accompanied by a certificate as to the amount of such Taxes or Other
Taxes and the calculation thereof, which calculation shall be PRIMA
FACIE evidence of such amount.
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(e) If any Borrower determines in good faith that a reasonable basis
exists for contesting any Taxes for which a payment has been made under
this Section 8.6, the relevant Lender or the Administrative Agent, as
applicable, shall, if so requested by such Borrower, cooperate with such
Borrower in challenging such Taxes at such Borrower's expense.
(f) If any Lender or the Administrative Agent, as applicable, receives a
refund of, or credit for, Taxes for which a payment has been made by any
Borrower under this Section 8.6, which refund or credit in the good
faith judgment of such Lender or the Administrative Agent, as the case
may be, is attributable to the Taxes giving rise to such payment made by
such Borrower, then such Lender or the Administrative Agent, as the case
may be, shall reimburse such Borrower for such amount (if any, but not
exceeding the amount of any payment made under this Section 8.6 that
gives rise to such refund or credit), net of out-of-pocket expenses of
such Lender or the Administrative Agent, as the case may be, which the
Administrative Agent or such Lender, as the case may be, determines in
its absolute discretion will leave it, after such reimbursement, in no
better or worse position than it would have been in if such Taxes had
not been exigible. Any such Borrower, upon the request of the
Administrative Agent or any Lender, agrees to repay the Administrative
Agent or such Lender, as the case may be, any portion of any such refund
or credit paid over to such Borrower that the Administrative Agent or
such Lender, as the case may be, is required to pay to the relevant
Official Body and agrees to pay any interest, penalties or other charges
paid by such Lender or the Administrative Agent, as the case may be, as
a result of or related to such payment to such Official Body. Neither
the Administrative Agent nor any Lender shall be under any obligation to
arrange its tax affairs in any particular manner so as to claim any
refund or credit.
(g) Each Borrower also hereby indemnifies and holds harmless the
Administrative Agent and each Lender, on an after-Taxes basis, for any
additional taxes on net income that the Administrative Agent or such
Lender may be obliged to pay as a result of the receipt of amounts under
this Section 8.6.
(h) Any Lender that is entitled to an exemption from or reduction of
withholding tax or Non-Withheld Part XIII Taxes under the law of the
jurisdiction in which any Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to Payments
shall, at the request of such Borrower, deliver to such Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by such Borrower or the
Administrative Agent, such properly completed and executed documentation
prescribed by applicable law (if any) as will permit such payments to be
made without withholding or at a reduced rate of withholding or a
reduced rate of Non-Withheld Part XIII Taxes. In addition, (i) any
Lender, if requested by any Borrower or the Administrative Agent, shall
deliver such other documentation prescribed by applicable law (if any)
or reasonably requested by any Borrower or the Administrative Agent as
will enable such Borrower or the Administrative Agent to determine
whether or not such Lender is subject to withholding or
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information reporting requirements, and (ii) any Lender that ceases to
be, or to be deemed to be, resident in Canada for purposes of Part XIII
of the Tax Act or any successor provision thereto in respect of Payments
shall within five Business Days thereof notify such Borrower and the
Administrative Agent in writing. Notwithstanding the foregoing, no
Lender shall be required to deliver any documentation pursuant to this
Section 8.6(h) that such Lender is not legally able to deliver.
(i) Neither any Lender nor the Administrative Agent shall be under any
obligation to arrange its tax affairs in any particular manner or be
obliged to disclose any information regarding its tax affairs or
computations to the Borrowers or any other Person in connection with
this Section 8.6.
(j) Additional amounts payable under Section 8.6(a) and Non-Withheld
Part XIII Taxes payable under Section 8.6(b) have the same character as
the Payments to which they relate. For greater certainty, for example,
additional amounts payable under Section 8.6(a) or Non-Withheld Part
XIII Taxes payable under Section 8.6(b), in respect of interest payable
under a Credit Document, shall be payments of interest under such Credit
Document. All payments made under this Section 8.6 shall be subject to
the provisions of this Section 8.6.
(k) All Loans, advances and extensions of credit made to any Canadian RT
Borrower under the RT Facility shall be made only by an RT Lender that
is a Canadian Qualified Lender, unless such RT Lender became an RT
Lender:
(i) at the written request of or with the written consent of Kinross
Canada; or
(ii) in accordance with Section 15.5 following the occurrence of and
during the continuance of an Event of Default.
For greater certainty, no Canadian RT Borrower shall be required to pay
any amount under this Section 8.6 in respect of any Payment to any
Person that is not a Canadian Qualified Lender unless that Person ceased
to be a Canadian Qualified Lender because of a change in law or unless
that Person is receiving such Payment because:
(iii) that Person became a Lender at the written request of or with
the written consent of Kinross Canada;
(iv) that Person acquired any interest under the Credit Documents or
became a Participant pursuant to Section 15.5 following the
occurrence of and during the continuance of an Event of Default;
or
(v) the relevant Canadian RT Borrower is making the Payment in its
capacity as a joint and several obligor or guarantor under
Section 1.13 or under any Borrower Guarantee, respectively,
following the occurrence of and during the continuance of an
Event of Default.
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For the purposes of this agreement, the term "CANADIAN QUALIFIED LENDER"
means a Lender which:
(vi) is not a "non-resident" within the meaning of the Tax Act; or
(vii) is an "authorized foreign bank" within the meaning of the Tax
Act and receives all payments from the Canadian RT Borrower
under the RT Facility in respect of its "Canadian banking
business" within the meaning of the Tax Act.
(l) All Loans, advances and extensions of credit made to any U.S. RT
Borrower under the RT Facility shall be made only by an RT Lender that
is a U.S. Qualified Lender unless such RT Lender became an RT Lender:
(i) at the written request of or with the written consent of Kinross
Canada; or
(ii) in accordance with Section 15.5 following the occurrence of and
during the continuance of an Event of Default.
For greater certainty, no U.S. RT Borrower shall be required to pay any
amount under this Section 8.6 in respect of any Payment to any Person
that is not a U.S. Qualified Lender unless that Person ceased to be a
U.S. Qualified Lender because of a change in law or unless that Person
is receiving such Payment because:
(iii) that Person became a Lender at the written request of or with
the written consent of Kinross Canada;
(iv) that Person acquired any interest under the Credit Documents or
became a Participant pursuant to Section 15.5 following the
occurrence of and during the continuance of an Event of Default;
or
(v) the relevant U.S. RT Borrower is making the Payment in its
capacity as a joint and several obligor or guarantor under
Section 1.13 or under any Borrower Guarantee, respectively,
following the occurrence of and during the continuance of an
Event of Default.
For the purposes of this agreement, the term "U.S. QUALIFIED LENDER"
means a Lender which:
(vi) is a corporation, partnership or other entity created, organized
or incorporated under the laws of the United States or a State
thereof (including the District of Columbia) (any such entity
being hereinafter referred to as a "UNITED STATES PERSON")
provided, however, that in the case of any Lender other than a
corporation, such Lender is not subject to "backup withholding"
under Code Section 3406;
(vii) is not a United States Person but is acting through a lending
office located in the United States in a manner that results in
a zero rate of withholding
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on any U.S. source payments made to such Lender by a resident of
the United States; or
(viii) is not a United States Person but is a "qualified resident"
under an income tax convention between the United States and the
country of residence of such Lender and such convention provides
for a zero rate of withholding on any U.S.-source Payments made
to such Lender by a resident of the United States,
and in the case of an RT Lender referred to in (vi) through (viii)
above:
(ix) there has been no determination that such RT Lender is a
"conduit entity" within the meaning of section 1.881-3(a)(4) of
the United States Treasury Regulations with respect to Loans,
advances and extensions of credit to the U.S. RT Borrower and
that it is participating as a Lender pursuant to a "tax
avoidance plan"; and
(x) such RT Lender has properly completed and timely filed with the
U.S. Borrowers all documentation required under the Code in
order to entitle such RT Lender to a complete exemption from
withholding of any and all United States federal income taxes on
all Payments made to such RT Lender in connection with such
Loans, advances and extensions of credit.
For certainty, this Section 8.6(l) shall not apply to Export Development
Canada in its capacity as a U.S. RT Lender.
(m) Any Lender that is not a "United States Person" as defined in
Section 7701(a)(30) of the Code (any such Lender being hereinafter
referred to as a "NON-U.S. LENDER") and has made a Loan, advance or
extension of credit to a U.S. RT Borrower shall, to the extent such
Non-U.S. Lender is legally entitled to do so, submit to such U.S. RT
Borrower and the Administrative Agent on or before the first date that
any Payments are made to such Non-U.S. Lender under the Finance
Documents by such U.S. RT Borrower: (A) two duly completed and signed
original Internal Revenue Service Forms W-8BEN or W-8ECI (or applicable
successor forms), and (B) if such Non-U.S. Lender is claiming the
benefits of the exemption for portfolio interest under Section 881(c) of
the Code: a certification in a form acceptable to the Administrative
Agent that such Non-U.S. Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code. Each Lender that is not a Non-U.S.
Lender shall deliver to the Borrowers and the Administrative Agent (in
such number of copies as shall be requested by the recipient) duly
completed copies of Internal Revenue Service Form W-9. Each such Lender
agrees to provide the Borrowers and the Administrative Agent with new
forms prescribed by the Internal Revenue Service upon the expiration or
obsolescence of any previously delivered form, or after the occurrence
of any event requiring a change in the most recent forms delivered by it
to the Borrowers and the Administrative Agent. Notwithstanding the
foregoing, no Lender shall be required to deliver any form pursuant to
this Section 8.6(m) that such Lender is
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not legally able to deliver or that reflects any facts or statements
that are inaccurate.
(n) To the extent of any conflict or inconsistency between this Section
8.6 and any provision of any other Finance Document, this Section 8.6
shall to the extent of such conflict or inconsistency override such
other provision and prevail.
(o) Each Borrower's obligations under this Section 8.6 shall survive
without limitation the termination of the Credit Facilities and this
agreement and all other Finance Documents and the permanent repayment of
the outstanding credit and all other amounts payable hereunder.
ARTICLE 9
REPAYMENTS AND PREPAYMENTS
9.1 REPAYMENT OF RT FACILITY
(a) The RT Borrowers shall repay to the RT Lenders in full the
outstanding credit under the RT Facility on the RT Facility Maturity
Date together with all accrued and unpaid interest thereon and all
accrued and unpaid fees with respect thereto. As concerns any Letter
which, on the RT Facility Maturity Date, has an expiry date later than
the RT Facility Maturity Date, the RT Borrowers shall pay to the Issuing
RT Lender, on the RT Facility Maturity Date, the then contingent
liability of the Issuing RT 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 RT Borrowers to the
Issuing RT Lender, the RT Borrowers shall have no further liability to
the RT Lenders with respect to any such Letter.
(b) The RT Borrowers shall repay to any Non-Continuing RT Lender in full
the outstanding credit under the RT Facility owing to such
Non-Continuing RT Lender on the relevant Non-Continuing RT Lender
Maturity Date together with all accrued but unpaid interest thereon. As
concerns any Letter which, on any such Non-Continuing RT Lender Maturity
Date, has an expiry date later than such Non-Continuing RT Lender
Maturity Date, the RT Borrowers shall pay to the Issuing RT Lender, on
such Non-Continuing RT Lender Maturity Date, the then contingent
liability of the Issuing RT Lender thereunder with respect to such
Non-Continuing RT Lender (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 RT Borrowers to the Issuing RT
Lender, the RT Borrowers shall have no further liability to such
Non-Continuing RT Lender with respect to any such Letter.
9.2 EXTENSION OF RT FACILITY MATURITY DATE
(a) At any time not earlier than May 1st of each year nor later than
June 30th 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
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current RT Facility Maturity Date to a date one year later than the then
current RT Facility Maturity Date. A copy of the Extension Request shall
be provided by the Administrative Agent to each of the RT Lenders in
accordance with Section 14.18. Each RT 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 RT Facility Maturity Date (the
"EXTENSION RESPONSE PERIOD"), approve or decline the Extension Request.
If any RT Lender does not provide an Extension Response Notice within
the Extension Response Period, such RT 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 RT Lenders of such approval and confirm the new RT Facility
Maturity Date, which new RT Facility Maturity Date shall become
effective on and from the then current RT Facility Maturity Date. If the
Majority Lenders do not approve the Extension Request, the
Administrative Agent shall notify Kinross Canada and the RT Lenders and
the RT Facility Maturity Date shall not be extended.
(b) If the Majority Lenders but less than all of the RT Lenders approve
the Extension Request within the Extension Response Period (the
"APPROVING RT 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 RT
Lender identifying the Approving RT Lenders and RT Lender or RT
Lenders that have declined or are deemed to have declined the
Extension Request (the "DECLINING RT LENDERS") and their
respective Individual Commitments with respect to the RT
Facility.
(ii) Any Approving RT Lender may, at its option, acquire all or any
portion of the rights and obligations of the Declining RT
Lenders under the Credit Documents (all of such rights and
obligations being herein called the "AVAILABLE RT AMOUNT") by
giving written notice to the Administrative Agent (an
"ACQUISITION NOTICE") of the portion of the Available RT Amount
which it is prepared to acquire (the "DESIRED RT 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 RT Lender gives an Acquisition Notice to the
Administrative Agent or if more than one Approving RT Lender
gives an Acquisition Notice to the Administrative Agent but the
aggregate of their Desired RT Acquisition Amounts is less than
or equal to the Available RT Amount, then each such Approving RT
Lender shall be entitled to acquire its Desired RT Acquisition
Amount of the rights and obligations of the Declining RT Lenders
under the Credit Documents. If more than one Approving RT Lender
gives an Acquisition Notice to the Administrative Agent and
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the aggregate of the Desired RT Acquisition Amounts is greater
than the Available RT Amount, then each such Approving RT Lender
shall be entitled to acquire a pro rata share of the rights and
obligations of the Declining RT Lenders under the Credit
Documents, such pro rata share being determined based on the
relative Desired RT Acquisition Amount of each such Approving RT
Lender. On or before the second Banking Day following the
Acquisition Deadline, the Administrative Agent shall give to
Kinross Canada and each RT Lender a written notice identifying
the Available RT Amount of each Declining RT Lender and the
portion thereof to be acquired by each Approving RT Lender. Each
of such acquisitions shall be completed on the date which is two
years prior to the then current RT Facility Maturity Date
(without giving effect to the Extension Request) in accordance
with the procedures set out in Section 15.5(c). If the Available
RT Amount is not completely acquired by the Approving RT
Lenders, the RT Borrowers may locate other Persons ("SUBSTITUTE
RT LENDERS") who qualify as RT Lenders (ie. if such Person is to
be a Canadian RT Lender, such Person shall be a Canadian
Qualified Lender and, if such Person is to be a U.S. RT Lender,
such Person shall be a U.S. Qualified Lender), are satisfactory
to the Administrative Agent and the Issuing RT Lender, acting
reasonably, and who acquire all or a portion of the balance of
the rights and obligations of the Declining RT Lenders under the
Credit Documents on the date which is two years prior to the
then current RT Facility 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 RT Lenders to the RT Borrower which is not so acquired
by Approving RT Lenders or Substitute RT Lenders shall remain
outstanding hereunder subject to the terms and conditions hereof
but shall be repaid by the RT Borrowers to the Declining Lender
in full on the then current RT Facility Maturity Date (without
giving effect to the Extension Request).
9.3 REPAYMENT OF NRT FACILITY. The NRT Borrower shall repay to the NRT
Lenders the full principal amount of credit outstanding under the NRT Facility
in quarterly repayments as follows:
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DATE OF REPAYMENT AMOUNT OF REPAYMENT
Each of: 4.545% of the NRT
May 18, 2008, Repayment Amount
August 18, 2008
November 18, 2008,
February 18, 2009,
May 18, 2009,
August 18, 2009,
November 18, 2009,
February 18, 2010,
May 18, 2010,
August 18, 2010,
November 18, 2010,
February 18, 2011,
May 18, 2011,
August 18, 2011 and
November 18, 2011
NRT Facility Maturity Date 31.825% of the NRT
Repayment Amount
The NRT Borrower will cause the Eligible Gold Purchasers to deposit proceeds of
all gold sales to the Gold Proceeds Account. Notwithstanding the foregoing, the
NRT Borrower agrees that its obligations under this agreement are general
obligations of the NRT Borrower and that the recourse of the NRT Lenders and the
Administrative Agent in respect thereof is not limited to the proceeds of sales
of gold by the NRT Borrower to Eligible Gold Purchasers, to the Gold Proceeds
Account or to any other property of the Borrower.
The NRT Borrower shall also pay to the NRT Lenders on the NRT Facility Maturity
Date all accrued and unpaid interest thereon and all unpaid fees with respect
thereto.
9.4 VOLUNTARY PREPAYMENTS UNDER A CREDIT FACILITY
Subject to Section 9.5, the relevant Borrowers shall be entitled to
prepay all or any portion of the outstanding Loans under a particular 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 in respect of the RT Facility
may be reborrowed. Amounts which are prepaid as aforesaid in respect of the NRT
Facility may not be reborrowed.
9.5 PREPAYMENT NOTICE
The relevant Borrowers shall give written notice to the Administrative
Agent of each voluntary prepayment pursuant to Section 9.4. Such notice (a
"PREPAYMENT NOTICE") shall be irrevocable, shall be given in accordance with
Section 3.13 and shall specify:
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(a) the Credit Facility under which the prepayment is to be made;
(b) the date on which the prepayment is to take place; and
(c) the type and principal amount of the Loan or the portion thereof which
is to be prepaid.
9.6 REIMBURSEMENT OR CONVERSION ON PRESENTATION OF LETTERS
(a) On presentation of a Letter and payment thereunder by the Issuing RT
Lender, the relevant RT Borrower shall forthwith pay to the
Administrative Agent for the account of the Issuing RT Lender, and
thereby reimburse the Issuing RT Lender for, all amounts paid by the
Issuing RT Lender pursuant to such Letter; failing such payment, the
relevant RT 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
RT 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. RT
Borrower) or a Prime Rate Loan (if such Letter was denominated in
Canadian dollars) to the extent of the payment of the Issuing RT Lender
thereunder.
(b) If the Issuing RT Lender makes payment under any Letter and the
relevant RT Borrower does not fully reimburse the Issuing RT Lender on
or before the date of payment, then Section 9.6(a) shall apply to deem a
Loan to be outstanding to the relevant RT Borrower under the RT Facility
in the manner therein set out. Each relevant RT Lender shall, on request
by the Issuing RT Lender, immediately pay to the Issuing RT Lender an
amount equal to such RT Lender's Pro Rata Share of the amount paid by
the Issuing RT Lender such that each relevant RT Lender is participating
in the deemed Loan in accordance with its Pro Rata Share.
(c) Each relevant RT Lender shall immediately on demand indemnify the
Issuing RT Lender to the extent of such RT Lender's Pro Rata Share of
any amount paid or liability incurred by the Issuing RT Lender under
each Letter issued by it to the extent that the relevant RT Borrower
does not fully reimburse the Issuing RT Lender therefor.
9.7 LETTERS SUBJECT TO AN ORDER
Subject to Section 13.2, the relevant RT Borrower shall pay to the
Issuing RT 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.
9.8 CURRENCY OF REPAYMENT
All payments and repayments of outstanding credit hereunder shall be
made in the currency of such outstanding credit.
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9.9 REPAYMENTS OF CREDIT EXCESS
In the event that there is a Credit Excess with respect to a particular
Credit Facility at any time, the relevant Borrowers shall repay to the relevant
Lenders on demand the amount of such Credit Excess. Each such repayment shall
first be applied to repay, as applicable, outstanding Prime Rate Loans, Base
Rate Canada Loans and Base Rate New York Loans as selected by Kinross Canada, in
the case of the RT Facility, and the NRT Borrower, in the case of the NRT
Facility, 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 or LIBOR Loans or, as applicable, 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 the failure
to do so could reasonably be expected to have a Material Adverse Effect.
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. Each Obligor has all necessary corporate
capacity to enter into, and carry out the transactions contemplated by,
the Credit Documents to which is a party.
(b) AUTHORIZATION AND ENFORCEMENT. All necessary action, corporate or
otherwise, has been taken to authorize the execution, delivery and
performance by each Obligor of the Credit Documents to which it is a
party. Each Obligor has duly executed and delivered the Credit Documents
to which it is a party. The Credit Documents to which each Obligor is a
party are legal, valid and binding obligations of such Obligor,
enforceable against such Obligor in accordance with its terms, except to
the extent that the enforceability thereof may be limited by (i)
applicable bankruptcy, insolvency, moratorium, reorganization and other
laws of general application limiting the enforcement of creditors'
rights generally,
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(ii) the fact that the courts may deny the granting or enforcement of
equitable remedies and (iii) the fact that, pursuant to the CURRENCY ACT
(Canada), no court in Canada may make an order expressed in any currency
other than lawful money of Canada.
(c) COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance by each Obligor of the Credit Documents to which it is a
party, and the consummation of the transactions contemplated herein and
therein, do not and will not conflict with, result in any 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 material 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.
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(g) CONDUCT OF BUSINESS. No Company is in violation of any agreement,
mortgage, franchise, licence, judgment, decree, order, statute,
statutory trust, rule or regulation relating in any way to itself or to
the operation of its business or to its property or assets (including,
without limitation, Environmental Laws) and which could reasonably be
expected to have a Material Adverse Effect. Each Company holds all
licenses, certificates of approval, approvals, registrations, permits
and consents which are required to operate its businesses where they are
currently being operated except where the failure to have such licenses,
certificates of approval, approvals, registrations, permits and consents
could not reasonably be expected to have a Material Adverse Effect.
(h) OUTSTANDING DEFAULTS. No event has occurred which constitutes or
which, with the giving of notice, lapse of time or both, would
constitute a default under or in respect of any material agreement,
undertaking or instrument to which any 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 material Tax
returns and Tax reports required by law to have been filed by it and has
paid all Taxes thereby shown to be owing, except any such Taxes which
are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with generally accepted
accounting principles shall have been set aside on its books.
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(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.
(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
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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.
(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.
(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 Q 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
Kinross 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 liability of the
relevant Company arising from such partnership, joint venture or
syndication 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
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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 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. RT Borrower shall exceed its respective
liabilities, including contingent liabilities at a fair
valuation;
(ii) the capital of each U.S. RT Borrower shall not be reasonably
small to conduct its respective business; and
(iii) no U.S. RT Borrower shall have intended to incur debts, nor
shall have believed that it would 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. RT 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) MATERIAL CONTRACTS. As at the date hereof, each of the Material
Contracts is in full force and effect and the Borrowers are not aware of
any actual or alleged outstanding material defaults thereunder.
(z) GUARANTEE OBLIGATIONS. Other than the Guarantee Obligations
constituted by the Permitted Indebtedness referred to in paragraph (g)
of the definition thereof, there
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are no Guarantee Obligations of any Obligor which have been incurred
other than in the ordinary course of the relevant Obligor's business.
(aa) FOREIGN ASSETS CONTROL REGULATIONS. Neither the execution and
delivery of this agreement nor the relevant Borrowers' use of the
proceeds of a 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 a 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.
(bb) 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 each Credit
Facility has been terminated, notwithstanding any investigation made at any time
by or on behalf of the Administrative Agent or any of the Lenders.
ARTICLE 11
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 each 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) (the filing of any of the following documents on
SEDAR or XXXXX
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shall satisfy the delivery obligation in relation to such documents so
filed when Kinross Canada has provided written notice of such filing to
the Administrative Agent):
(i) within 120 days after the end of each Fiscal Year, 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 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year and within 85 days after the end of
the fourth Fiscal Quarter of each Fiscal Year, 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;
(iii) concurrent with the deliveries of financial statements pursuant
to any of clauses (i) and (ii) 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;
(iv) within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year and within 85 days after the end of
the fourth Fiscal Quarter of each Fiscal Year, a report
summarizing the commodity, interest rate and foreign exchange
risk management activities of the Companies;
(v) within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year and within 85 days after the end of
the fourth Fiscal Quarter of each Fiscal Year, a construction
progress report with respect to Paracatu Mine;
(vi) 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;
(vii) 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;
(viii) within 120 days after the end of each Fiscal Year (if, at such
time, the NRT Facility has not been permanently repaid in full),
an internally-prepared environmental report with respect to the
Paracatu Mine;
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(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 which is not available on SEDAR
or XXXXX.
(c) USE OF PROCEEDS. The RT Borrowers shall apply all of the proceeds of
the RT Facility towards working capital requirements. The NRT Borrower
shall apply all of the proceeds of the NRT Facility solely to prepay the
export of gold to Eligible Gold Purchasers. For such purpose each LIBOR
Loan under the NRT Facility shall be considered as a separate
pre-payment export transactions (OPERACOES DE RECEBIMENTO ANTECIPADO DE
EXPORTACAO).
(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 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
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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, participation,
administration and interpretation of the Credit Documents and the
closing documentation ancillary to the completion of the transactions
contemplated hereby and thereby and any amendments and waivers hereto
and thereto (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
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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; and (ii) not less than 10 Banking Days prior to
the closing thereof, of any transaction permitted hereby which will
result in any change in the information set out in the representations
made in Section 10.1(p).
(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 where the failure to do so could reasonably be
expected to result in a Material Adverse Effect.
(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
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 levied, assessed or imposed upon
it and upon its property or assets or any part thereof, as and when the
same become due and payable, save and except when and so long as the
validity of any such Taxes is being contested in good faith by
appropriate proceedings and reserves are being maintained in accordance
with generally accepted accounting principles while forfeiture of any
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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
U.S. $700,000,000.
(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 later of the NRT
Facility Maturity Date or the RT Facility Maturity Date shall exceed
6,000,000 ounces.
(t) FORT XXXX MINE AND PARACATU MINE. Kinross Canada shall, directly or
indirectly, at all times maintain 100% ownership of each of the Fort
Xxxx Mine and Paracatu 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
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Obligor for so long as a Default has occurred and is continuing. The
Borrowers shall cause any such direct or indirect Subsidiary of Kinross
Canada, prior to the incurrence of any such Indebtedness, to execute and
deliver to the Administrative Agent the Postponement and Subordination
Undertaking or an instrument of adhesion thereto.
(v) INVESTMENT ACCOUNTS. The RT Borrowers shall, and shall cause each
Guarantor (other than Kinross Brazil) to, maintain all cash and Cash
Equivalents in the Investment Accounts. The RT 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. Subject to the requirement on
the part of the NRT Borrower to cause the Eligible Gold Purchasers to
deposit proceeds from all gold sales to the Gold Proceeds Account, the
RT Borrowers shall cause the Non-Guaranteeing Subsidiaries and the
Obligors (including, without limitation, Kinross Brazil and the NRT
Borrower) 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 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
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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) 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 (x)
such Subsidiary is already an Obligor, or one of the Greek, Russian and
Zimbabwian Subsidiaries, (y) such Subsidiary is designated in writing as
a Non-Guaranteeing Subsidiary by the Majority Lenders or (z) such
Subsidiary has been acquired pursuant to a Permitted Acquisition:
(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
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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 shares of 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 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
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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(z)(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.
(aa) ADDITIONAL RT BORROWERS. By written notice given to the
Administrative Agent with the written consent of all of the RT Lenders
in their sole and absolute discretion, Kinross Canada may designate any
wholly-owned Subsidiary as an Additional RT Borrower and such Subsidiary
shall become an Additional RT 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 an RT Borrower Instrument of
Adhesion;
(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
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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 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
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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.
(bb) CROWN. On or prior to the date which is no later than 60 days after
the date Kinross Canada acquires indirect control of the Buckhorn
Properties (but, in any event, no later than December 31, 2006):
(i) Kinross Canada shall forthwith cause Crown 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 Crown;
(B) a certificate of status or good standing for Crown
issued by the appropriate governmental body or agency of
the jurisdiction in which Crown is incorporated;
(C) a duly certified copy of the resolution of the board of
directors of Crown authorizing it to execute, deliver
and perform its obligations under each Credit Document
to which Crown 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 Crown) of
Crown 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 Crown, in such capacity,
setting forth specimen signatures of the individuals
authorized to sign the Credit Documents to which Crown
is a signatory;
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(E) share certificates representing all of the issued and
outstanding shares of Crown, 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 Crown's counsel addressed to the Lenders,
the Administrative Agent and its counsel, relating to
the status and capacity of Crown, the due authorization,
execution and delivery and the validity and
enforceability of the Credit Documents to which Crown is
a party in the jurisdiction of incorporation of Crown
and in the Province of Ontario 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 Crown
(including, without limitation, the legality, validity
and binding nature of the obligations of Crown under,
and the enforceability against Crown 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 (and, if necessary, Guarantee) or amendments to
existing Security Documents to be executed and delivered to
permit the pledge of the shares of Crown;
(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(bb)(iii) and to ensure the perfection
and the intended first-ranking priority of such Security;
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whereupon Crown shall become a Guarantor for all purposes of
this agreement.
(cc) SALE OF GOLD BY NRT BORROWER. The NRT Borrower shall, until such
time as the NRT Facility has been permanently repaid in full, sell all
of its gold to Eligible Gold Purchasers.
(dd) AMENDMENTS TO ROF REGISTRATION. Without limiting the provisions of
Section 9.3, if (i) the NRT Borrower fails to export sufficient gold to
repay any instalments of the NRT Facility on the date such instalment is
due, which shall be the date established in the relevant ROF
registration or (ii) an Event of Default has occurred and is continuing,
the NRT Borrower shall, forthwith upon the written request of the
Administrative Agent, make any necessary amendments to the relevant ROF
registration for the purposes of enabling the NRT Borrower to repay the
NRT Facility with cash and make the relevant remittances abroad.
Interest on the full principal amount of credit outstanding under the
NRT Facility shall be paid in cash in accordance with the relevant ROF
registration.
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 each 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.
(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 any Material
Subsidiary and any other Material Subsidiaries, any Subsidiaries that
own all of the issued and outstanding shares of any Material Subsidiary
and any Subsidiaries all of the issued and outstanding shares of which
are owned by any 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
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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)(vii), 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.
(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.
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(h) AMENDMENTS. 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 two
sentences, the Borrowers shall not, and shall not suffer or permit the
Material Subsidiaries to, make any Distribution (except to an Obligor).
At any time prior to the payment of the first scheduled repayment of the
NRT Facility pursuant to Section 9.3, 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 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
(C) Distributions with respect to the repurchase thereof,
provided always that such Distributions do not exceed
U.S. $25,000,000 in the aggregate; and
(iii) 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. $40,000,000 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.
At any time after the making of the first scheduled repayment of the NRT
Facility pursuant to Section 9.3, the Borrowers may, and may suffer or
permit the Material Subsidiaries to, make Distributions 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.
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(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)
(A) at any time prior to the payment of the first scheduled
repayment of the NRT Facility pursuant to Section 9.3,
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 each
case, made at a time when no Default has occurred and is
continuing or would arise as a result of such
Investment; and
(B) at any time thereafter, additional Investments provided
that any such Investment is in the same line of business
as the Obligors and for fair market value; and in each
case, made 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.
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(m) GOLD PROCEEDS AUTHORIZATIONS. The NRT Borrower shall not provide any
instructions to any Eligible Gold Purchaser in conflict, or
inconsistent, with the relevant Gold Proceeds Authorization.
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 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 obligations to provide written notice thereof in accordance with
Section 11.1(a) or (i)); and
(d) neither Credit Facility has been terminated pursuant to Section 2.4.
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12.2 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT
This agreement shall become effective upon the fulfilment of the
following conditions precedent on or before October 18, 2006:
(a) the Obligors, excluding Xxxxx Xxxxxxx, have duly executed and
delivered to the Administrative Agent a confirmation of the Guarantees,
Borrower Guarantees and the Security Documents (other than those
described in Section 12.3(b)), in form and substance satisfactory to the
Administrative Agent and any other amendments thereto or amendment and
restatement thereof as the Administrative Agent may require in
connection with the amendment and restatement of the Existing Credit
Agreement constituted hereby;
(b) Xxxxx Xxxxxxx has duly executed and delivered to the Administrative
Agent a Guarantee in form and substance satisfactory to the
Administrative Agent and any other documents in connection therewith as
the Administrative Agent may require;
(c) each relevant Subsidiary has executed and delivered to the
Administrative Agent the Postponement and Subordination Undertaking in
form and substance satisfactory to the Administrative Agent and any
other documents in connection therewith as the Administrative Agent may
require;
(d) the NRT Borrower has executed and delivered to the Administrative
Agent an instrument of adhesion to the Environmental Indemnity Agreement
in form and substance satisfactory to the Administrative Agent and any
other documents in connection therewith as the Administrative Agent may
require;
(e) 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 and Xxxxx Xxxxxxx;
(ii) a certificate of status or good standing for each Borrower and
Xxxxx Xxxxxxx (where available) 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 and Xxxxx Xxxxxxx 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 and Xxxxx
Xxxxxxx, in such capacity, setting forth specimen signatures of
the individuals authorized to sign the Credit Documents to which
such Obligor is a
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signatory (except for any such Obligor in whose jurisdiction of
incorporation the convention is to notarize the execution of
documents);
(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 and Xxxxx Xxxxxxx
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 Province of Ontario and such other matters as the
Administrative Agent may reasonably request (including, without
limitation, with respect to the withholding Tax exempt nature of
the NRT Facility);
(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); and
(viii) a duly certified copy of the resolution of the board of
directors of each Guarantor (other than Xxxxx Xxxxxxx) ratifying
and confirming that the Guarantee to which such Guarantor is a
party continues in full force and effect and guarantees, inter
alia, the Indebtedness of the NRT Borrower under the NRT
Facility;
(f) there has not occurred a Material Adverse Change;
(g) there shall exist no pending or threatened litigation, proceedings
or investigations which (x) contest the consummation of the Credit
Facilities or any part thereof or (y) could reasonably be expected to
have a Material Adverse Effect;
(h) 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;
(i) 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
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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
(j) the Fee Letter has been duly executed and delivered by the parties
thereto and the Borrowers shall have paid to the Administrative Agent
and the Lenders, as applicable, all fees and expenses required to be
paid on or before this agreement becoming effective.
12.3 CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT UNDER THE NRT
FACILITY
The obligations of the NRT Lenders to extend credit for the first time
under the NRT Facility is subject to the fulfilment of the following conditions
precedent on the date such credit is extended:
(a) the conditions precedent set forth in Sections 12.1 and 12.2 have
been fulfilled;
(b) each of the NRT Borrower and Kinross Brazil have duly executed and
delivered to the Administrative Agent the Security Documents, in form
and substance satisfactory to the Administrative Agent and any other
amendments thereto or amendment and restatement thereof 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 of the
NRT Borrower and Kinross Brazil;
(ii) a certificate of status or good standing for each of the NRT
Borrower and Kinross Brazil (where available) 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 of the NRT Borrower and Kinross Brazil
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 NRT Borrower and
Kinross Brazil, in such capacity, setting forth specimen
signatures of the individuals authorized to sign the Credit
Documents to which such Obligor is a signatory (except for any
such Obligor in whose jurisdiction of incorporation the
convention is to notarize the execution of documents);
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(v) an opinion of counsel to each Borrower and Xxxxx Xxxxxxx
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 Province of Ontario and such other matters as the
Administrative Agent may reasonably request; and
(vi) 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) 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;
(e) 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 each of the NRT Borrower and Kinross Brazil 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;
(f) the Gold Proceeds Account shall have been established and copies of
Gold Proceeds Authorizations have been delivered to the Administrative
Agent; and
(g) delivery to the Administrative Agent of the ROF registration with
respect to this agreement.
12.4 WAIVER
The terms and conditions of Sections 12.1 and 12.3 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 and
12.3 in whole or in part in respect of any other extension of credit.
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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 or 9.3
(b) the failure of any Obligor to pay any amount due under the Credit
Documents (other than amounts due pursuant to Section 9.1 or 9.3) 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 to
facilitate a dissolution or winding up permitted pursuant to Section
11.2(b) or 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
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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) 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;
(k) 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 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;
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(l) 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;
(m) any one or more of the Credit Documents is determined by a court of
competent jurisdiction not to be a legal, valid and binding obligation
of 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
(n) 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 relevant Credit Facility
(provided, however, that the Credit Facilities 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 face amount of all Bankers' Acceptances issued
and outstanding hereunder and (ii) the then contingent liability of the Issuing
RT 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 RT
Borrowers to the Canadian RT Lenders of the face amount of all Bankers'
Acceptances issued and outstanding hereunder, the Canadian RT Borrowers shall
have no further liability to the Canadian RT Lenders with respect to such
Bankers' Acceptances. Upon the payment by the RT Borrowers to the Issuing RT
Lender of the then contingent liability under all outstanding Letters, the RT
Borrowers shall have no further liability to the Issuing RT Lender with respect
to such Letters.
13.2 REFUND OF OVERPAYMENTS
With respect to each Letter for which the Issuing RT Lender has been
paid all of its contingent liability pursuant to Section 9.1, 9.7 or Section
13.1 and provided that all amounts due by the RT Borrowers to the Issuing RT
Lender under Section 9.1, 9.7 and Section 13.1 have been paid, the Issuing RT
Lender agrees to pay to the RT 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
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permanently enjoining the Issuing RT 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 RT Lender for cancellation or the
Issuing RT 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 RT Lender
hereunder in respect of its contingent liability under such Letter over the
total of amounts applied to reimburse the Issuing RT Lender for amounts paid by
it under or in connection with such Letter (the Issuing RT 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, 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
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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.
14.5 ADMINISTRATIVE AGENT AS LENDER
With respect to those portions of a particular 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
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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 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
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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.
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 a Credit Facility available to the relevant Borrowers,
it is independently taking whatever steps it considers necessary to
evaluate the financial condition and
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affairs of such 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 Credit Facility is being utilized by the
relevant Borrowers, it will continue to make its own independent
evaluation of the financial condition and affairs of the relevant
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 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
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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 either Credit Facility or the amount of
the Individual Commitment of any Lender with respect to a Credit
Facility;
(ii) extend the NRT Facility Maturity Date or any other scheduled
repayment of the NRT Facility pursuant to Section 9.3;
(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 either 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 RT 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.
(d) Without the prior written consent of the Issuing RT 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 RT Lender
shall be effective.
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(e) The parties hereto acknowledge and agree that the Scotiabank NRT
Facility Individual Commitment - Tranche A and the Scotiabank NRT
Facility Individual Commitment - Tranche B shall be voted separately.
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 relevant Lenders agree that, at any time after all indebtedness
of the Borrowers to such Lenders pursuant hereto has become immediately
due and payable pursuant to Section 13.1 or after the cancellation or
termination of a Credit Facility, they will at any time or from time to
time upon the request of any relevant Lender through the Administrative
Agent purchase portions of the availments made available by the other
relevant 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 such Credit Facility immediately prior to such acceleration,
cancellation or termination.
(b) The relevant Lenders agree that, at any time after all indebtedness
of the relevant Borrowers to such Lenders pursuant hereto has become
immediately due and payable pursuant to Section 13.1 or after the
cancellation or termination of a Credit Facility, the amount of any
repayment made by such Borrowers under this agreement, and the amount of
any proceeds of the exercise of any rights or remedies of such 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 such 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 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
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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 a 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:
(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;
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(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.
(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
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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
Borrower Guarantees, the Guarantees and the Security Documents. The Borrower
Guarantees, 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 each of the
Termination Date, the RT Facility Maturity Date and the NRT Facility Maturity
Date have occurred.
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
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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 latest to occur of the
Termination Date, the RT Facility Maturity Date and the NRT Facility
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.
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.
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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 and for the purposes of Article 8 such
Participant shall be deemed to be a Lender to the extent of such
participation; provided, that, subject to Sections 8.6(k) and (l), 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, (x) the Issuing RT Lender (which
consent shall not be required for an assignment of rights with respect
to the NRT Facility or, otherwise for so long as an Event of Default has
occurred and is continuing if no Letters are outstanding at the time of
the relevant assignment) and (y) the Administrative Agent, a Lender may
at any time sell all or any part of its rights and obligations under the
Credit Documents (but not less than $5,000,000) to one or more Persons
("PURCHASING LENDERS"). For certainty, no consent shall be required for
any pledge by a Lender to the Federal Reserve Bank of such Lender's
interest hereunder. In addition to and not, for certainty, in limitation
of the foregoing, no consent shall be required in the case of the sale
by a Lender listed in Schedule II of the BANK ACT (Canada) to its
Affiliate that is listed in Schedule III to the BANK ACT (Canada)
provided that, prior to the occurrence and continuance of an Event of
Default, any RT Lender (other than as concerns The Bank of Nova Scotia
in connection with assignments made immediately after this agreement
- 114 -
becomes effective pursuant to Section 12.2) which comprises both a
Canadian RT Lender and a U.S. RT 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 RT Lender and a U.S. RT Lender.
For the avoidance of doubt, no such consents shall be required and 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. RT 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
with respect to the relevant Credit Facility and a specific address and
telefacsimile number for the purpose of notices as provided in Section
15.1 and 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 relevant 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
with respect to the relevant Credit Facility, address and telefacsimile
number as aforesaid and the Individual Commitment of the Lender making
such assignment shall be deemed to be reduced by the amount of the
Individual Commitment of the Purchasing Lender with respect to the
relevant Credit Facility.
(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 Letter) 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.
- 115 -
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 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.
- 116 -
(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 Indebtedness Currency into the Judgment Currency
published by the Bank of Canada for the day in question.
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.
15.11 TITLES
For certainty, the Persons named herein as "Co-Lead Arrangers",
"Co-Documentation Agents" and "Syndication Agent" shall have no responsibilities
or obligations hereunder in their capacities as such.
15.12 USA PATRIOT ACT
Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "ACT"), it is required to obtain, verify and record
information that identifies each borrower, guarantor or grantor (the "LOAN
PARTIES"), which information includes the name and address of each Loan Party
and other information that will allow such Lender to identify such Loan Party in
accordance with the Act.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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) XXXXX XXXX
-------------------------------------
Attention: Xxxxx Xxxx
By:
-------------------------------------
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) XXXXX XXXX
-------------------------------------
Attention: Xxxxx Xxxx
By:
-------------------------------------
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) XXXXX XXXX
-------------------------------------
Attention: Xxxxx Xxxx
By:
-------------------------------------
Telefax: (000) 000-0000
Round Mountain Gold Corporation ROUND MOUNTAIN GOLD CORPORATION
x/x Xxxxxxx Xxxx Xxxxxxxxxxx
00xx Xxxxx, Xxxxxx Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
By: (SIGNED) XXXXX XXXX
-------------------------------------
Attention: Xxxxx Xxxx
Telefax: (000) 000-0000 By:
-------------------------------------
Rio Paracatu Mineracao S.A. RIO PARACATU MINERACAO S.A.
x/x Xxxxxxx Xxxx Xxxxxxxxxxx
00xx Xxxxx, Xxxxxx Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
By: (SIGNED) XXXXXX XXXXXXXXX
-------------------------------------
Attention: Xxxxx Xxxx
Telefax: (000) 000-0000 By:
-------------------------------------
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) XXXXXXXX XXXXXXXXX
---------------------------------
Xxxxxxxx Xxxxxxxxx
Telefax: (000) 000-0000 Director
with a copy to: By: (SIGNED) XXXXXX XXXXXXXX
---------------------------------
Xxxxxx Xxxxxxxx
Attention: Managing Director Associate Director
Telefax: (000) 000-0000
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, AS RT
Corporate Banking - Mining LENDER
Scotia Plaza, 62nd Floor
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0 By: (SIGNED) XXXXX XXXXXXX
---------------------------------
Xxxxx Xxxxxxx
Attention: Managing Director Managing Director
Telefax: (000) 000-0000 By: (SIGNED) XXXXX XXXXXX
---------------------------------
Xxxxx Xxxxxx
Associate Director
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, AS NRT
Corporate Banking - Mining LENDER
Scotia Plaza, 62nd Floor
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0 By: (SIGNED) XXXXX XXXXXXX
---------------------------------
Xxxxx Xxxxxxx
Attention: Managing Director Managing Director
Telefax: (000) 000-0000 By: (SIGNED) XXXXX XXXXXX
---------------------------------
Xxxxx Xxxxxx
Associate Director
SCHEDULE A
LENDERS AND INDIVIDUAL COMMITMENTS
RT FACILITY
CANADIAN RT LENDERS U.S. RT LENDERS INDIVIDUAL COMMITMENT RE:
RT FACILITY
The Bank of Nova Scotia The Bank of Nova Scotia U.S. $300,000,000
NRT FACILITY
NRT LENDERS INDIVIDUAL COMMITMENT RE: NRT FACILITY
The Bank of Nova Scotia (Scotiabank NRT Facility U.S. $190,000,000
Individual Commitment - Tranche A)
The Bank of Nova Scotia (Scotiabank NRT Facility U.S. $10,000,000
Individual Commitment - Tranche B)
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 second amended and restated credit
agreement made as of August 18, 2006, as amended (the "CREDIT
AGREEMENT") between Kinross Gold Corporation, Kinross Gold U.S.A., Inc.,
Fairbanks Gold Mining, Inc., Round Mountain Gold Corporation, Rio
Paracatu Mineracao S.A., 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 11.1(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 _______ U.S.$700,000,000
(b) Interest Coverage Ratio _______ = 4.5:1
(c) Leverage Ratio _______ = 3.0 to 1
(d) Reserves _______ > 6 million ounces
The attached calculation worksheet as at the relevant period ending
________ accurately sets out the information therein contained.
4. Unless the context otherwise requires, capitalized terms in the Credit
Agreement which appear herein without definitions shall have the
meanings ascribed thereto in the Credit Agreement.
DATED this _______ day of _____________, 20____.
--------------------------------------------------
(Signature)
--------------------------------------------------
(Name - please print)
--------------------------------------------------
(Title of Senior Financial Officer)
CALCULATION WORKSHEET
TANGIBLE NET WORTH
ACTUAL:
---------- --------------------------------------------------------------------------------- ----------------------
Equity as of financial statements dated [ ] US$
---------- --------------------------------------------------------------------------------- ----------------------
Plus (without duplication):
---------- --------------------------------------------------------------------------------- ----------------------
Series B Preferred shares US$
---------- --------------------------------------------------------------------------------- ----------------------
Subtotal:
---------- --------------------------------------------------------------------------------- ----------------------
Less:
---------- --------------------------------------------------------------------------------- ----------------------
Goodwill, deferred expenses and intangible assets US$( )
-
---------- --------------------------------------------------------------------------------- ----------------------
Equity in Non-Recourse Subsidiaries US$( )
---------- --------------------------------------------------------------------------------- ----------------------
Tangible Net Worth US$
---------- --------------------------------------------------------------------------------- ----------------------
MINIMUM REQUIRED:
---------- --------------------------------------------------------------------------------- ----------------------
Minimum Level US$700,000,000
---------- --------------------------------------------------------------------------------- ----------------------
COMPLIANCE [Yes]/[No]
INTEREST COVERAGE RATIO
Rolling OCF US $ _________________________ (A)
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 Remaining
Probable Factor reserves Produced Reserves
Reserves as (2) (1) x (2) =(3) Since (3)-(4)
of Yearend Previous
(1) Yearend (4)
1
2
3
__________
Reserves(Actual): _______oz.
Less: Projected Production to
to Maturity (______)oz
Reserves (Min. Required as at the later of the NRT Facility Maturity Date or the RT
Facility Maturity Date): 6,000,000 oz.
COMPLIANCE [Yes]/[No]
SIGNIFICANT MATERIAL SUBSIDIARIES
Itemize new Significant Material Subsidiaries 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. $<*>
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 Second Amended and Restated Credit
Agreement made as of August 18, 2006, as amended (the "Credit Agreement"),
between Kinross Gold Corporation, Kinross Gold U.S.A., Inc., Fairbanks Gold
Mining, Inc., Round Mountain Gold Corporation, and Rio Paracatu Mineracao S.A.,
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 it
relates to the [RT/NRT] Facility as of the Effective Date (as defined below)
(including, without limitation, such percentage interest in the Assignor's
Individual Commitment with respect to such Credit Facility as in effect on the
Effective Date, the credit extended by the Assignor under such Credit Facility
and outstanding on the Effective Date and the corresponding rights and
obligations of the Assignor under all of the Credit Documents as it relates to
such Credit Facility).
(b) The Assignor (i) represents and warrants that as of the date hereof its
Individual Commitment with respect to the [RT/NRT] 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 such 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 [RT/NRT] 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.
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 RT 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
----------------------------------------------------------- --------------------------------------------------------
----------------------------------------------------------- --------------------------------------------------------
COMPANY ADDRESS
----------------------------------------------------------- --------------------------------------------------------
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
----------------------------------------------------------- --------------------------------------------------------
Xxxxx Xxxxxxx 000 Xxxxxx Xxxx Xxxxx
Xxxx, Xxxxxx
Xxxxxx Xxxxxx 00000
----------------------------------------------------------- --------------------------------------------------------
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
----------------------------------------------------------- --------------------------------------------------------
----------------------------------------------------------- --------------------------------------------------------
COMPANY ADDRESS
----------------------------------------------------------- --------------------------------------------------------
Xxxxx Xxxxxxx Delaware
----------------------------------------------------------- --------------------------------------------------------
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: Second Amended and Restated Credit Agreement made as of
August 18, 2006, as amended (the "Credit Agreement")
between Kinross Gold Corporation, Kinross Gold U.S.A.,
Inc., Fairbanks Gold Mining, Inc., Round Mountain Gold
Corporation and Rio Paracatu Mineracao S.A., 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 [RT/NRT]
Facility on [date of drawdown] as follows:
Availment Option: _____________________________________
Currency & Amount: ___________________________________
If LIBOR Loan, Interest Period: __________________________
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: Second Amended and Restated Credit Agreement made as of
August 18, 2006, as amended (the "Credit Agreement") between
Kinross Gold Corporation, Kinross Gold U.S.A., Inc., Fairbanks
Gold Mining, Inc., Round Mountain Gold Corporation and Rio
Paracatu Mineracao S.A., 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 [NRT/RT]
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
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: Second Amended and Restated Credit Agreement made as of
August 18, 2006, as amended (the "Credit Agreement") between
Kinross Gold Corporation, Kinross Gold U.S.A., Inc., Fairbanks
Gold Mining, Inc., Round Mountain Gold Corporation and Rio
Paracatu Mineracao S.A., 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 RT
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.$_____________
Amount of
New Base Rate
New York Loan
BASE RATE NEW YORK LOAN
Principal Amount of U.S.$_____________
Base Rate New York
Loan to be converted
Portion Thereof U.S.$_____________
To be converted
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
[KINROSS CORPORATE STRUCTURE]
[KINROSS CORPORATE STRUCTURE]
SCHEDULE I
REIMBURSEMENT INSTRUMENT
TO: The Bank of Nova Scotia (the "Issuing RT Lender")
RE: Second Amended and Restated Credit Agreement made as of
August 18, 2006, as amended (the "Credit Agreement") between
Kinross Gold Corporation, Kinross Gold U.S. A., Inc. Fairbanks
Gold Mining, Inc., Round Mountain Gold Corporation and Rio
Paracatu Mineracao S.A., 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 RT Lender the amount of each and any demand
or other request for payment presented to and paid by the Issuing RT Lender in
accordance with each Letter (as defined in the Credit Agreement) issued by the
Issuing RT 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
--------------- ---------------- --------------------------- --------------------------- ---------------------------
Level Leverage Ratio Prime Rate Loan, Base Acceptance Fee rate, Standby fee rate re: RT
Rate Canada Loan and Base LIBOR Loan interest rate Facility and, during the
Rate New York Loan margin and Letter NRT Facility Availability
interest rate margin issuance fee rate Period, the NRT Facility
--------------- ---------------- --------------------------- --------------------------- ---------------------------
1 = 2.25 to 1 0.875% p.a. 1.875% p.a. 0.60% p.a.
--------------- ---------------- --------------------------- --------------------------- ---------------------------
2 = 1.75 to 1 0.375% p.a. 1.375% p.a. 0.35% p.a.
and < 2.25 to 1
--------------- ---------------- --------------------------- --------------------------- ---------------------------
3 = 1.25 to 1 0.125% p.a. 1.125% p.a. 0.30% p.a.
and < 1.75 to 1
--------------- ---------------- --------------------------- --------------------------- ---------------------------
4 <1.25 : 1 Flat 1.000% p.a. 0.25% p.a.
--------------- ---------------- --------------------------- --------------------------- ---------------------------
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 Kinross Brazil in
favour of the Administrative Agent.
15. Gold Proceeds Account Pledge Agreement dated as of August 18, 2006
between the NRT Borrower and the Administrative Agent.
SCHEDULE L
[INTENTIONALLY DELETED]
SCHEDULE M
RT 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 second amended and restated credit
agreement dated as of August 18, 2006 by and among Kinross Gold Corporation,
Kinross Gold U.S.A., Inc., Fairbanks Gold Mining, Inc., Round Mountain Gold
Corporation and Rio Paracatu Mineracao S.A., 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 RT 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:
16. 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 RT Borrower, including all amendments,
supplements and additions thereto, deletions therefrom and restatements
thereof, as if the undersigned was an original party thereto.
17. The undersigned hereby acknowledges that it has been provided with a
copy of the Credit Agreement.
18. 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.: ________________
19. 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 the aggregate of (x)
$100,000,000 in any Fiscal Year and (y) in addition to the amount set forth in
clause (x), an additional $100,000,000 from and including the date hereof.
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
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 100 common shares Kinross Canada
shares with a par and 1,000,000
value of U.S.$1.00 preference shares
each and 1,000,000 with a par value of
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.$1.00 each ranking
pari passu with the
existing shares
------------------------------- ---------------------------- ---------------------------- ----------------------------
------------------------------- ---------------------------- ---------------------------- ----------------------------
PLEDGED SUBSIDIARY AUTHORIZED CAPITAL ISSUED CAPITAL OWNER OF RECORD
------------------------------- ---------------------------- ---------------------------- ----------------------------
IGM 900,000 ordinary shares 5,012 ordinary shares and Kinross Americas Holdings
with a par value of 19,363,000 Cdn.$ preferred
U.S.$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
------------------------------- ---------------------------- ---------------------------- ----------------------------
NRT Borrower 369,215 common shares 369,178 common shares Kinross Brazil
------------------------------- ---------------------------- ---------------------------- ----------------------------
SCHEDULE R
AUTHORIZATION AND DIRECTION TO ELIGIBLE GOLD PURCHASER
TO: <*> (the "PURCHASER")
AND TO: The Finance Parties
AND RE: Second amended and restated credit agreement made as of
August 18, 2006 between Kinross Gold Corporation, Kinross Gold
U.S.A., Inc., Fairbanks Gold Mining, Inc., Round Mountain Gold
Corporation and Rio Paracatu Mineracao S.A. (the "VENDOR"), as
borrowers, the Lenders named therein, and The Bank of Nova
Scotia, as Administrative Agent (as amended, modified,
supplemented or replaced from time to time, the "CREDIT
AGREEMENT")
--------------------------------------------------------------------------------
WHEREAS the Lenders have established a certain credit facility
in favour of the Vendor pursuant to the Credit Agreement;
AND WHEREAS from time to time the Vendor may sell gold to the
Purchaser;
AND WHEREAS it is a condition of the continued extension of
credit by the Lenders to the Vendor pursuant to the Credit Agreement that (i)
the Vendor irrevocably direct and authorize the Purchaser to pay all amounts
owing by the Purchaser to the Vendor for the sale of gold by the Vendor to the
Purchaser (the "GOLD PROCEEDS") directly into the bank account set forth in
Schedule A hereto (the "GOLD PROCEEDS ACCOUNT") by wire transfer as set forth in
Schedule A hereto or as otherwise directed by The Bank of Nova Scotia and (ii)
the Purchaser acknowledge and agree to be bound by the terms of such
authorization and direction;
NOW THEREFORE, the Vendor hereby irrevocably authorizes and
directs the Purchaser to pay all Gold Proceeds directly into the Gold Proceeds
Account or as otherwise directed by The Bank of Nova Scotia. By the Purchaser's
signature below, the Purchaser acknowledges and agrees to be bound by the terms
of this authorization and direction. This authorization and direction shall
terminate and become null and void upon written notice of revocation to the
Purchaser from The Bank of Nova Scotia.
Dated as of this <*> day of <*>, <*>.
RIO PARACATU MINERACAO S.A.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Acknowledged and agreed to by:
[PURCHASER]
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
SCHEDULE A
GOLD PROCEEDS ACCOUNT
BANK AND BRANCH BRANCH TRANSIT ACCOUNT NO. ACCOUNT NAME CURRENCY WIRE TRANSFER INSTRUCTIONS
NO.
The Bank of Nova Scotia 00000 000000000000 Rio Paracatu United Bank Name: Bank of Nova
Scotia Plaza Mineracao S.A., States Scotia
00 Xxxx Xxxxxx Xxxx Xxxxxxx Xxxxxxx BSC
Xxxxxxx, Xxxxxxx, Xxxxxx 00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
SWIFT: XXXXXXXX
Bank Number: 002
Beneficiary Name:
Rio Paracatu Mineracao S.A.
Beneficiary Address:
00 Xxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Beneficiary Account #:
476960153915
