SECOND AMENDING AGREEMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT
Exhibit 99.3
Execution Version
SECOND
AMENDING AGREEMENT TO FOURTH AMENDED AND
RESTATED
CREDIT AGREEMENT AND CONSENT
THIS AGREEMENT dated as of the
31st day of January,
2017.
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
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23056223.11
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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
Defined
Terms.
Section 1.1 of
the Credit Agreement is hereby amended as follows:
(a)
the definition of
“Companies” is
hereby deleted in its entirety and replaced by the
following:
““Companies” means, the Parent and
all Subsidiaries of the Parent other than SPV and
“Company” means
any of the foregoing.”
(b)
the definition of
“Credit
Documents” is hereby deleted in its entirety and
replaced by the following:
““Credit Documents” means this
Agreement, the Intercreditor Agreement, the Commitment Letter, the
Security Documents, the Postponement and Subordination Undertaking
and all instruments and agreements executed and delivered by the
Companies in favour of the Finance Parties from time to time in
connection with this Agreement or any other Credit
Document.”
(c)
the definition of
“Permitted
Dispositions” is hereby amended by deleting the
reference therein to “and” at the end of subparagraph
(c) and adding the following new subparagraphs:
“(e) a
disposition of the Borrower’s rights to the DMI Toll
Revenues, the Stream and the SPV Stream,
(f) a
sale, assignment or other disposition of the Borrower’s or
the Parent’s rights, interests or entitlements under or in
respect of the APG Exclusive Collateral, the SPV Specific
Collateral and the Streaming Specific Collateral,
(g) the
assignment contemplated under section 5.11(b) of the SPV Loan
Agreement as of the original date of such agreement;
in each case in
accordance with the provisions of the Intercreditor
Agreement;”
(d)
subparagraph (c) of the
definition of “Distribution” is hereby deleted in
its entirety and replaced by the following:
“(c) the
payment of interest or the repayment of principal with respect to
any Indebtedness of an Obligor which is subordinated to the
Indebtedness of an Obligor under the Credit Documents, other than
payments made of or in respect of the APG Obligations in accordance
with the provisions of the Intercreditor Agreement.
(e)
subparagraphs (g) and (h) of
the definition of “Permitted
Indebtedness” are hereby deleted in their entirety and
replaced by the following:
“(g)
Subordinated Indebtedness of
the Parent;
(h)
Indebtedness owing by the
Obligors pursuant to the SPV Loan Documents and the Streaming
Documents; and
(i)
Indebtedness incurred by any
Company arising from agreements entered into pursuant to a
Permitted Acquisition or Permitted Disposition which provide for
indemnification, adjustment of purchase price or similar
obligations.”
(f)
subparagraphs (s) and (t) of
the definition of “Permitted
Liens” are hereby deleted in their entirety and
replaced by the following:
“(s)
any Lien existing on any
property or asset prior to its Permitted Acquisition; provided that
(i) such Lien is not created in contemplation of or in connection
with such Permitted Acquisition and (ii) such Lien shall secure
only those obligations which it secures and are outstanding on the
date of such Permitted Acquisition; provided, however, any such
Lien shall cease to be a Permitted Lien should it rank in priority
to the Security following any Permitted
Reorganization;
(t)
a Lien on the Shares of the
Borrower granted to SPV, Streamer and APG which ranks subordinate
in order of priority to the Security; and
(u)
a Lien on the APG Exclusive
Collateral, the SPV Specific Collateral and the Streaming Specific
Collateral (including, for the avoidance of doubt, the
Borrower’s rights under the Toll Milling Agreement to receive
the proceeds arising in respect of the SPV Stream and the Stream);
and
(v)
any extension, renewal or
replacement of any of the foregoing.”
(g)
the definitions of
“Tier I Material
Companies” and “Tier II Material Companies” are
hereby deleted in their entirety and replaced by the
following:
““Tier I Material Companies” means
the Obligors and any other Company which directly or indirectly
owns or operates any Material Asset other than SPV.
“Tier II Material Companies” means
any direct or indirect Subsidiary of the Parent, other than SPV, in
respect of which:
(a) the
gross revenue of such Subsidiary for the most recently completed
four Fiscal Quarters constitutes at least 10% of the consolidated
revenue of the Parent for such four Fiscal Quarter period;
or
(b) the
book value of the assets of such Subsidiary as at the last day of
the most recently completed four Fiscal Quarters constitutes at
least 10% of the book value of the assets of the Parent on a
consolidated basis as at the last day of the most recently
completed Fiscal Quarter.”
(h)
the following new definitions
are hereby added to Section 1.1 of the Credit Agreement in
alphabetical order:
““APG” means Anglo Pacific Group PLC
and its successors and permitted assigns.
“APG Exclusive Collateral” has the
meaning given to it in the Intercreditor Agreement.
“APG Loan Documents” has the
meaning given to it in the Intercreditor Agreement.
“APG Loan Obligations” has the
meaning given to it in the Intercreditor Agreement.
“APG Obligations” means,
collectively, the APG Loan Obligations, the SPV Obligations and the
Streaming Obligations.
“Collateralized Letter Amount”
means, at any particular time, the amount of cash or cash
equivalent collateral pledged to the Administrative Agent pursuant
to the Security Documents as collateral security for reimbursement
obligations in respect of issued and outstanding Letters of Credit
hereunder.
“DMI Toll Revenues” has the meaning
given to it in the Intercreditor Agreement.
“Intercreditor Agreement” means the
intercreditor agreement dated January 31, 2017 entered into among
the Administrative Agent, APG, SPV, Streamer, Parent and the
Borrower.
“Non-Collateralized Letter Amount”
means, at any particular time, the aggregate principal amount of
Accommodations at such time less the Collateralized Letter Amount
at such time.
“SPV” means 9373721 Canada Inc. and
its successors and permitted assigns.
“SPV Event of Default” has the
meaning given to it in the Intercreditor Agreement.
“SPV Loan Documents” has the
meaning given to it in the Intercreditor Agreement.
“SPV Obligations” has the meaning
given to it in the Intercreditor Agreement.
“SPV Ordinary Payment Obligations”
has the meaning given to it in the Intercreditor
Agreement.
“SPV Specific Collateral” has the
meaning given to it in the Intercreditor Agreement.
“SPV Stream” has the meaning given
to it in the Intercreditor Agreement. “Stream” has the meaning given to
it in the Intercreditor Agreement.
“Streamer” means Centaurus
Royalties Ltd. and its successors and permitted
assigns.
“Streaming Documents” has the
meaning given to it in the Intercreditor Agreement.
“Streaming Event of Default” has
the meaning given to it in the Intercreditor
Agreement.
“Streaming Obligations” has the
meaning given to it in the Intercreditor Agreement.
“Streaming Specific Collateral” has
the meaning given to it in the Intercreditor
Agreement.
“Toll Milling Agreement” has the
meaning given to it in the Intercreditor Agreement.
“Transaction Documents” means,
collectively, the “SPV Loan Agreement”, the
“DMC/SPV Guarantee”, the “APG Loan
Agreement”, the “DMC/SPV Loan Guarantee
Assignment”, the “Streaming Agreement” and the
“DMC Streaming Guarantee” (in each case, having the
meanings given to such terms in the Intercreditor Agreement),
together with all security agreements entered into by SPV or an
Obligor in favour of APG, SPV or the Streamer in connection
therewith.”
2.3
Letter
Fees.
Section 7.3 of
the Credit Agreement
is hereby amended by deleting subparagraph (a)
in its entirety and replacing it with the following:
“(a) The
Borrower shall pay to the Lenders, in accordance with Section 3.2,
an issuance fee quarterly in arrears on the first Banking Day of
each Fiscal Quarter, calculated at a rate per annum equal to (i)
2.4% on the Non- Collateralized Letter Amount and (ii) 0.40% of the
Collateralized Letter Amount, in each case on the basis of a year
of 365 days and on the amount of each such Letter for a period of
time equal to the number of days in the preceding Fiscal Quarter on
which such Letter was outstanding. In addition, with respect to all
Letters, the Borrower shall from time to time pay to the Issuing
Lender its usual and customary fees (at the then prevailing rates)
for the amendment, delivery and administration of letters of credit
such as the Letters. Each such payment is non-refundable and fully
earned when due.”
2.4
Definition
of Unrestricted Cash.
Section 1.1 of
the Credit Agreement is hereby amended by deleting the definition
of “Unrestricted Cash” in its entirety.
2.5
Collateralized
Letter Amount.
Section 11.1 of
the Credit Agreement is hereby amended by deleting subparagraph (v)
in its entirety and replacing it with the following:
“(v)
Collateralized Letter
Amount. The Borrower shall at all times maintain a
Collateralized Letter Amount of at least
$9,000,000.”
2.6
Events of
Default.
Section 13.1 of
the Credit Agreement is hereby amended as follows:
(i) by deleting
the reference to “or” at the conclusion of subparagraph
(n) and by adding the following new subparagraphs (p), (q) and
(r):
“(p) the
Intercreditor Agreement is determined , on a final and
non-appealable judgement rendered by a court of competent
jurisdiction, not to be a valid and enforceable agreement
enforceable by the Administrative Agent against any other party
thereto and has not been replaced within 30 days of such
determination by an agreement that is equivalent from the
Administrative Agent’s perspective, to the Intercreditor
Agreement, and that is legal, valid, binding and enforceable by the
Administrative Agent against each party thereto and is in form and
substance acceptable to the Administrative Agent, provided,
however, that the grace period shall only be provided if each
counter-party to the Intercreditor Agreement actively co-operates
with the Administrative Agent to so replace the Intercreditor
Agreement;
(q)
any part of the Security
fails to rank in order of priority ahead of any security granted to
any of APG, SPV or Streamer in the Secured Assets as collateral
security for the repayment of any APG Obligations; or
(r)
the Administrative Agent has
received written notice from SPV, APG or Streamer pursuant to
Section 4.3(a)(1)(i) of the Intercreditor Agreement of the
occurrence of an SPV Event of Default, an Administrative Services
Termination Event or a Streaming Event of Default, as the case may
be.”
2.7
Schedule
H.
Schedule H to the
Credit Agreement is hereby deleted in its entirety and replaced
with Schedule H attached hereto.
2.8
Maturity
Date.
The definition of
“Maturity Date” is hereby amended by deleting the
reference therein to “January 31, 2017” and replacing
it with “January 31, 2018”.
2.9
Section
16.10.
Section 16.10 is
hereby amended by deleting subparagraph (a) in its entirety and
replacing it with the following:
“In the
event of any conflict or inconsistency between the provisions of
this Agreement and the provisions of any other Credit Document
other than the Intercreditor Agreement, the provisions of this
Agreement shall prevail and be paramount.”
ARTICLE 3 COVENANT
3.1
Required
Pledge
On or before (a)
the loan contemplated to be made by the SPV to the Borrower in
accordance with the DMI Loan Documents has been advanced; (b) the
loan contemplated to be made by APG to the SPV in accordance with
the APG Loan Documents has been advanced; and
(c) the
purchase price contemplated to be paid by the Streamer to the
Borrower in accordance with the Streaming Documents has been paid,
the Borrower shall have (i) pledged not less than
$9,000,000 in
cash to the Administrative Agent; and (ii) except as delivered
under the Existing Credit Agreement, delivered to the
Administrative Agent 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
EFFECTIVE TIME
4.1
Conditions
Precedent.
Except as
provided under Section 4.2, this agreement shall become effective
upon satisfaction of the following conditions
precedent:
(a)
the Intercreditor Agreement
has been executed and delivered by each of the parties
thereto;
(b)
the amendment to the Security
Document referenced at paragraph 2 of Schedule H shall have been
executed and delivered by the Borrower and the Administrative
Agent;
(c)
the Security Document
referenced at paragraph 3 of Schedule H shall have been executed
and delivered by the Borrower;
(d)
the Borrower shall have paid
the amount referenced at Section 5.1(a) below in respect of the
amendment fee; and
(e)
the Administrative Agent has
received, in form and substance satisfactory to it:
(i)
a certificate of status or
good standing for each Obligor issued by the appropriate Official
Body of the jurisdiction in which such Obligor is
incorporated;
(ii)
a duly certified copy of the
resolution of the board of directors of the Obligors authorizing
each to execute, deliver and perform its obligations under this
Agreement, the Intercreditor Agreement and the Security Document
referenced at paragraph 3 of Schedule H;
(iii)
certified true copies of the
Transaction Documents; and
(iv)
an opinion of counsel to the
Obligors addressed to the Lenders, the Administrative Agent and its
counsel, relating to the status and capacity of the Obligors, the
due authorization, execution and delivery and the validity and
enforceability of this Agreement, the Intercreditor Agreement and
the Security Document referenced at paragraph 3 of Schedule H
against the Obligors and such other matters as the Administrative
Agent may reasonably request.
4.2
Conditions
Subsequent
Sections 2.3, 2.4
and 2.5 shall not become effective until not less than $9,000,000
cash shall have been pledged to the Administrative Agent by the
Borrower.
ARTICLE
5 MISCELLANEOUS
5.1
Amendment
Fees.
In consideration
of The Bank of Nova Scotia agreeing to enter into this agreement,
the Borrower agrees to pay The Bank of Nova Scotia a $100,000
amendment fee as follows:
(a)
$50,000 on the date hereof;
and
(b)
$50,000 on or before the
earlier of (i) the effective time contemplated under Section 4.2
and (ii) February 15, 2017.
Upon such a
payment being made, such payment shall be non-refundable and shall
be fully earned. The foregoing amounts shall be paid in immediately
available funds in Canadian dollars to The Bank of Nova Scotia at
its address set forth below, without setoff or counterclaim and
free and clear of any taxes. Any failure of the Borrower to pay the
amount payable pursuant to paragraph (b), above, when the same
shall become due thereunder shall constitute an immediate Event of
Default without the any requirement to provide notice of the
failure to any Obligor and without the benefit of any cure or grace
period contemplated in relation to a failure of an Obligor to pay
an amount due under the Credit Documents pursuant to Section
13.1(b).
5.2
Representations and
Warranties.
The Obligors
hereby repeat, as of the date hereof, to and in favour of the
Administrative Agent and the Lenders each of the representations
and warranties set forth in Section 10.1 of the Credit Agreement
and 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 will arise immediately thereafter or after the execution
and delivery of the SPV Loan Documents and the APG Loan Documents
to which any Obligor is a party.
5.3
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.
5.4
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.
5.5
Enurement.
This agreement
shall enure to the benefit of and shall be binding upon the parties
hereto and their respective successors and permitted
assigns.
5.6
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.
5.7
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.
5.8
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, the SPV
Loan Documents and the Intercreditor 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.
[Remainder
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Second
Amending Agreement
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23056223.11
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IN WITNESS WHEREOF, the parties hereto
have executed and delivered this agreement on the date first above
written.
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Xxxxxxx Mines Inc.
1100 - 00 Xxxxxxxxxx
Xxxxxx
Xxxxxxx, XX X0X 0X0
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XXXXXXX MINES
INC.
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By:
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“Signed”
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Attention:
Chief Financial Officer
Telefax: (000)
000-0000
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By:
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Name: Xxxxx Xxxxx
Title: President and
CEO
“Signed”
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Name: Xxxxxxx
XxXxxxxx
Title: Chief Financial
Officer
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Xxxxxxx Mines Corp.
1100 - 00 Xxxxxxxxxx
Xxxxxx
Xxxxxxx, XX X0X 0X0
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XXXXXXX MINES
CORP.
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By:
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“Signed”
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Attention: Chief
Financial Officer
Telefax: (000)
000-0000
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By:
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Name: Xxxxx Xxxxx
Title: President and CEO
“Signed”
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Name: Xxxxxxx XxXxxxxx
Title: Vice President, Finance &
CFO
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Second Amending
Agreement
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The
Bank of Nova Scotia
Corporate Banking – Loan
Syndications
00
Xxxx Xx. Xxxx – 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
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THE BANK OF NOVA
SCOTIA, as Administrative Agent
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Attention: Managing
Director
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By:
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“Signed”
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Telefax: (000)
000-0000
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Name: Xxx Xxxxxx
Title: Managing
Director
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By:
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“Signed”
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Name: Xxxxxxx XxxXxxx
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Title: Associate
Director
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The Bank of Nova ScotiaCorporate
Banking – Global Mining
Scotia Plaza, 62nd Floor
00 Xxxx Xxxxxx Xxxx
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XXX XXXX XX XXXX
XXXXXX, as Lender
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Xxxxxxx, Xxxxxxx X0X
0X0
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By:
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“Signed”
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Name: Xxx Xxxxxx
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Attention: Managing
Director
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Title: Managing
Director
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Telefax: (000) 000-0000
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By:
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“Signed”
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Name: Xxxxxxx XxxXxxx
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Title: Associate
Director
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Second
Amending Agreement
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SCHEDULE H
SECURITY DOCUMENTS
1.
Security Agreement dated as
of June 30, 2008 entered into by the Parent and the Administrative
Agent (re: Shares of DMI and inter-company debt);
2.
General Security Agreement
dated as of June 30, 2008 entered into by DMI and the
Administrative Agent, as amended pursuant to an amending agreement
dated January 31, 2017; and
3.
Cash Collateral Account
Agreement dated January 31, 2017 entered into by DMI in favour of
the Administrative Agent.
23056223.11
