FIRST AMENDING AGREEMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT
Exhibit 99.2
Execution Version
FIRST AMENDING AGREEMENT TO FOURTH AMENDED AND
RESTATED CREDIT
AGREEMENT AND CONSENT
THIS AGREEMENT dated as of the
27th day
of January, 2016.
BETWEEN:
THE BANK OF NOVA
SCOTIA, a Canadian chartered bank
(herein, in its capacity as administrative agent
for the Lenders, called the “Administrative
Agent”)
-
and -
XXXXXXX MINES
INC., a corporation amalgamated under the laws of the
Province of Ontario
(herein in its capacity as the borrower,
“DMI”)
-
and -
XXXXXXX MINES
CORP., a corporation amalgamated under the laws of the
Province of Ontario
(herein in its capacity as the guarantor,
“DMC” and,
together with DMI, the “Obligors”)
-
and -
THE SEVERAL
LENDERS FROM TIME TO TIME PARTY THERETO (herein and therein
in their capacities as lenders to the Borrower, collectively called
the “Lenders”
and individually called a “Lender”)
WHEREAS
the Obligors, the Lenders and the Administrative Agent entered into
a fourth amended and restated credit agreement dated as of January
30, 2015, (the “Credit
Agreement”);
AND
WHEREAS the parties hereto wish to, inter alia, amend a certain provision
of the Credit Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES
that, in consideration of the mutual covenants and agreements
contained herein, the parties covenant and agree as
follows:
ARTICLE 1
DEFINED
TERMS
1.1 Capitalized Terms. All capitalized
terms which are used herein without being specifically defined
herein shall have the meanings ascribed thereto in the Credit
Agreement.
ARTICLE 2
AMENDMENT TO CREDIT
AGREEMENT
2.1 General
Rule. Subject to the terms and
conditions herein contained, the Credit Agreement is hereby amended
to the extent necessary to give effect to the provisions of this
agreement and to incorporate the provisions of this agreement into
the Credit Agreement.
2.2 Maturity
Date. The
definition of “Maturity Date” is hereby amended by
deleting the reference therein to “January 31, 2016”
and replacing it with “January 31,
2017”.
2.3 Unrestricted
Cash. The definition of “Unrestricted Cash” is hereby
deleted in its entirety and replaced with the
following:
““Unrestricted Cash” means, at any
particular time and without duplication, an aggregate amount equal
to all Cash and Cash Equivalents of the Obligors (i) which is not
subject to any Lien (other than a Lien granted pursuant to a
Security Document) or restriction and (ii) which is credited to
deposit accounts situated in Canada with, at all times up to and
including May 30, 2016, The Bank of Nova Scotia or any Subsidiary
thereof and at all times thereafter, The Bank of Nova Scotia (and
not, for the avoidance of doubt, credited to deposit accounts of
The Bank of Nova Scotia’s Subsidiary, Scotia Capital Inc. (or
any division thereof, including, without limitation, Scotia
XxXxxx)).”
2.4 Schedule
G. Schedule G to the Credit
Agreement is hereby amended by deleting the reference therein to
“11,270,000” and replacing it with
“11,582,500”.
ARTICLE 3
CONDITIONS PRECEDENT
3.1 Conditions
Precedent. This agreement shall not
become effective until the Administrative Agent, for and on behalf
of the Lenders, has received from the Obligors (i) a non-refundable
extension fee in the amount of $25,000, (ii) an officer certificate
of a senior officer of each Obligor together with a certified true
copy of a resolution of the board of directors of each Obligor
authorizing the execution, delivery and performance of this
agreement by the applicable Obligor, (iii) a legal opinion of
in-house counsel to the Obligors addressed to the Administrative
Agent and the Lenders relating to the status and capacity of each
Obligor and the due authorization, execution and delivery of this
agreement and such other matters as the Administrative Agent may
reasonably request and (iv) except as delivered under the Existing
Credit Agreement, share certificates representing all of the issued
and outstanding shares of the Borrower duly endorsed in blank for
transfer or attached to duly executed stock transfers and powers of
attorney or as otherwise required under Applicable
Law.
ARTICLE 4
MISCELLANEOUS
4.1 No
Default. The Obligors represent and
warrant to and in favour of the Administrative Agent and the
Lenders that no Default has occurred and is continuing as at the
date this agreement becomes effective and no Default would arise
immediately thereafter.
4.2 Future
References to the Credit Agreement. On and after the date of
this agreement, each reference in the Credit Agreement to
“this agreement”, “hereunder”,
“hereof”, or words of like import referring to the
Credit Agreement, and each reference in any related document to the
“Credit Agreement”, “thereunder”,
“thereof”, or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended hereby. The Credit Agreement, as amended
hereby, is and shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed.
4.3 Governing
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.
4.4 Enurement.
This agreement
shall enure to the benefit of and shall be binding upon the parties
hereto and their respective successors and permitted
assigns.
4.5 Further
Assurances. The Obligors shall do,
execute and deliver or shall cause to be done, executed and
delivered all such further acts, documents and things as the
Administrative Agent may reasonably request for the purpose of
giving effect to this agreement and to each and every provision
hereof.
4.6 Counterparts.
This agreement
may be executed and delivered in one or more original, emailed (in
..pdf format), faxed or by other electronic means, signed
counterparts, and by different parties in separate counterparts,
each of which shall be deemed to be an original and all of which
taken together shall be deemed to constitute one and the same
instrument.
4.7 Confirmation
of Security. Each Obligor confirms and
agrees that the Liens and other obligations expressed to be created
under or pursuant to each Security Document to which it is a party
shall be binding upon such Obligor and its collateral (as described
in each such Security Document) shall be unaffected by and shall
continue in full force and effect notwithstanding the amendment to
the Credit Agreement as constituted hereby and the execution and
delivery and effectiveness of this agreement shall not in any
manner whatsoever reduce, release, discharge, impair or otherwise
prejudice or change the rights of the Finance Parties arising
under, by reason of or otherwise in respect of such Liens and other
obligations constituted by each such Security Document. For the
avoidance of doubt, each Obligor hereby confirms that each Security
Document to which it is a party secures its Secured Obligations and
that each such Security Document continues in full force and
effect.
4.8 Consent.
DMC has
requested that the Lenders (i) consent to DMI’s entering
into, and consummating, contractual arrangements to flow-through
DMI’s toll milling revenue to a third party, to which revenue
DMI has a right under the disposition of DMI’s revenue rights
in the First Amended and Restated XXX Mill Toll Milling Agreement
with the effective date of November 30, 2011 entered into among the
XxXxxxx Lake Joint Venture, comprised of AREVA Resources Canada
Inc., Xxxxxxx Mines Inc. and OURD (Canada) Co., Ltd, and the Cigar
Lake Joint Venture, comprised of Cameco Corporation, AREVA
Resources Canada Inc., Idemitsu Canada Resources Ltd. and Tepco
Resources Inc., such agreement constituting a XxXxxxx Material
Contract (the “Proposed Disposition”) and (ii) to
confirm that as consideration for such consent, the Lenders shall
not require DMI to use the proceeds of the Proposed Disposition to
cash collateralize its contingent liability to the Issuing Lender
for Letters currently issued under the Credit Facility.
Pursuant to Section 11.3(d) of the Credit Agreement, the Proposed
Disposition is, absent the written consent of the Majority Lenders,
a prohibited transaction. For good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Lenders hereby (i) consent to the Proposed
Disposition and (ii) confirm that the Lenders shall not require DMI
to use the proceeds of the Proposed Disposition to cash
collateralize its contingent liability to the Issuing Lender for
Letters currently issued under the Credit Facility. The
consent herein provided relates solely to the Proposed Disposition
and shall not be interpreted or construed as consenting to or
waiving any other provision matter contemplated by the Finance
Documents.
[Remainder of page intentionally blank.]
IN
WITNESS WHEREOF, the parties hereto have executed and
delivered this agreement on the date first above
written.
|
Xxxxxxx Mines Inc.
1100 - 00 Xxxxxxxxxx
Xxxxxx
Xxxxxxx, XX X0X 0X0
|
XXXXXXX MINES
INC.
|
|
|
|
By:
|
“Signed”
|
|
Attention: Chief
Financial Officer
Telefax: (000)
000-0000
|
By:
|
Name: Xxxxxxx XxXxxxxx
Title: VP Finance &
CFO
“Signed”
|
|
|
|
Name: Dunia El-Jawhari
Title: Corporate
Secretary
|
|
|
|
|
|
Xxxxxxx Mines Corp.
1100 - 00 Xxxxxxxxxx
Xxxxxx
Xxxxxxx, XX X0X 0X0
|
XXXXXXX MINES
CORP.
|
|
|
|
By:
|
“Signed”
|
|
Attention: Chief
Financial Officer
Telefax: (000)
000-0000
|
By:
|
Name: Xxxxxxx XxXxxxxx
Title: VP Finance &
CFO
“Signed”
|
|
|
|
Name: Dunia El-Jawhari
Title: Corporate
Secretary
|
First Amending
Agreement
|
|
|
|
|
The
Bank of Nova ScotiaCorporate Banking – Loan Syndications40
King St. West – 00xx XxxxxXxxxxxx, Xxxxxxx X0X 0X0
|
THE BANK OF NOVA
SCOTIA, as Administrative Agent
|
|
|
Attention: Managing
Director
|
By:
|
“Signed”
|
|
Telefax: (000)
000-0000
|
|
Name: Xxxxxxx Xxxx
Title: MD
|
|
|
|
|
|
|
By:
|
“Signed”
|
|
|
|
Name: Xxxxxxx XxxXxxx
|
|
|
|
Title: Associate
Director
|
|
|
|
|
|
|
|
|
|
The Bank of Nova ScotiaCorporate
Banking – Global Mining
Scotia Plaza, 62nd Floor
00 Xxxx Xxxxxx Xxxx
|
XXX XXXX XX XXXX
XXXXXX, as Lender
|
|
|
Xxxxxxx, Xxxxxxx X0X
0X0
|
By:
|
“Signed”
|
|
|
|
Name: Xxxxxxx Xxxx
|
|
Attention: Managing
Director
|
|
Title: MD
|
|
Telefax: (000) 000-0000
|
By:
|
“Signed”
|
|
|
|
Name: Xxxxxxx XxxXxxx
|
|
|
|
Title: Associate
Director
|
|
|
|
|
First
Amending Agreement
