AMENDING AGREEMENT NO. 1
REDACTED - Execution Version
AMENDING AGREEMENT NO. 1
MEMORANDUM OF AGREEMENT made as of April 13, 2022.
AMONG:
HUDBAY PERU S.A.C.,
as Borrower,
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CERTAIN OF ITS AFFILIATES,
as Guarantors, Material Subsidiaries, Restricted Subsidiaries and/or Obligors,
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CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent,
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THE LENDERS FROM TIME TO TIME PARTY TO THE CREDIT AGREEMENT.
WHEREAS the Borrower, certain of its Affiliates, the Agent and certain financial institutions as lenders entered into a third amended and restated credit agreement dated as of October 26, 2021 (as further amended, modified, supplemented or replaced to the date hereof, the "Credit Agreement");
AND WHEREAS the parties hereto wish to amend the Credit Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises, the covenants herein contained and for other valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties), the parties hereto agree as follows:
1. Interpretation
(a) All words and expressions defined in the Credit Agreement and not otherwise defined in this Agreement have the meaning specified in the Credit Agreement, as amended by this Agreement (notwithstanding the application of Section 2).
(b) Sections 1.2, 1.3, 1.4 and 13.2 of the Credit Agreement are incorporated herein by reference.
(c) Unless expressly stated otherwise, all references herein to sections of an agreement other than this Agreement shall be to sections of the Credit Agreement.
(d) Section headings are for convenience only.
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2. Effective Date
The amendments set forth in Section 3 herein shall be effective on and as of the date the conditions set forth in Section 5 have been satisfied.
3. Amendments to the Credit Agreement
(a) Section 1.1 of the Credit Agreement is amended by deleting the definition of "[REDACTED - COMMERCIALLY SENSITIVE INFORMATION] Receivables Sale Agreement" in its entirety and replacing it with the following:
"[REDACTED - COMMERCIALLY SENSITIVE INFORMATION] Receivables Sale Agreement" means the supplier agreement to be entered into between Hudbay and Citibank N.A. (or one of its affiliates or subsidiaries acceptable to the Agent acting reasonably) (in form and substance acceptable to the Agent, acting reasonably) in respect of certain receivables due from [REDACTED - COMMERCIALLY SENSITIVE INFORMATION]or one of its affiliates or subsidiaries."
(b) Section 1.1 of the Credit Agreement is further amended by deleting paragraph (x) of the definition of "Permitted Liens" in its entirety and replacing it with the following:
"(x) (i) security interests granted by Xxxxxx to any of Citibank N.A., its branches, affiliates or subsidiaries in connection with the sale by Hudbay pursuant to the [REDACTED - COMMERCIALLY SENSITIVE INFORMATION] Receivables Sale Agreement of accounts receivables owed by [REDACTED - COMMERCIALLY SENSITIVE INFORMATION]to Hudbay provided that the security interest shall only attach to such transferred accounts receivables and (ii) if a court of competent jurisdiction determines that the transactions contemplated by the [REDACTED - COMMERCIALLY SENSITIVE INFORMATION] Receivables Sale Agreement constitute secured loans rather than purchases and sales, security interests granted by Hudbay to any of Citibank N.A., its branches, affiliates or subsidiaries in and to any and all present and future accounts receivable which were expressly the subject such [REDACTED - COMMERCIALLY SENSITIVE INFORMATION] Receivables Sale Agreement provided that the security interest shall only attach to such transferred accounts receivables and shall only secure the repayment of amounts paid by Citibank pursuant to the [REDACTED - COMMERCIALLY SENSITIVE INFORMATION] Receivables Sale Agreement;"
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4. Representations & Warranties
Each Obligor represents and warrants to the Agent and the Lenders, acknowledging and confirming that the Agent and the Lenders are relying thereon without independent inquiry, that:
(a) the representations and warranties set forth in the Loan Documents and given by it are true and correct in all material respects on and as of the date hereof (except to the extent such representations and warranties relate to a specific date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date); and
(b) no Default or Event of Default has occurred and is continuing nor shall any Default or Event of Default result from the execution, delivery or performance of this Agreement.
5. Conditions Precedent
Section 3 of this Agreement shall not be effective until satisfaction or waiver of the following conditions, each to the satisfaction of the Lenders:
(a) this Agreement shall be executed and delivered by the parties hereto;
(b) the representations and warranties set forth in Section 4 of this Agreement shall be true and correct;
(c) no Default or Event of Default shall have occurred and be continuing; and
(d) the Agent shall have received such other documents as the Lenders may reasonably require.
The conditions set forth in this Section 5 are inserted for the sole benefit of the Lenders and may be waived, in whole or in part by the Lenders, with or without terms or conditions.
6. Confirmation of Security, etc.
Each Obligor agrees and confirms that:
(a) each of the Guarantees shall continue in full force and effect;
(b) each of the Security Documents shall continue in full force and effect and shall continue as security for the due and punctual payment and performance of the Obligations and the Other Secured Obligations;
(c) the Liens granted by the Obligors in favour of the Agent and the Lenders pursuant to each of the Security Documents shall continue in full force and effect as general and continuing security for the payment of all Obligations and all Other Secured Obligations, whether incurred prior to, at the time of, or subsequent to the execution of this Amending Agreement; and
(d) each of the Guarantees and Security Documents is enforceable against it by the Agent in accordance with its terms.
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7. Miscellaneous
(a) The parties hereto agree that this Agreement shall be a Loan Document.
(b) With the exception of the foregoing amendments, the Credit Agreement shall continue in full force and effect, unamended.
(c) This Agreement and the Credit Agreement shall enure to the benefit of and be binding upon the parties, their successors and any permitted assigns.
(d) This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
(e) This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(f) The Obligors shall promptly cure any default in its execution and delivery of this Agreement. The Obligors, at the expense of the Borrower, will promptly execute and deliver, or cause to be executed and delivered, to the Agent, upon reasonable request, all such other and further documents, agreements, certificates and instruments in compliance with, or accomplishment of the covenants and agreements of the Obligors hereunder or more fully to state the obligations of the Obligors as set out herein or in the Credit Agreement or to make any recording, file any notice or obtain any consents, all as may be necessary or appropriate in connection therewith.
(g) Time is of the essence of this Agreement.
[Signature pages follow.]
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
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HUDBAY PERU S.A.C. |
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by |
"Xxxx Xxxxxxx Xxxxxxxxxx Xxxxx" |
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Name: Xxxx Xxxxxxx Xxxxxxxxxx Xxxxx |
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Title: General Manager |
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by |
"Xxxxxxx Xxxx Xxxxxx" |
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Name: Xxxxxxx Xxxx Xxxxxx |
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Title: CFO, South American Business Unit |
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HUDBAY MARKETING & SALES INC. |
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by |
"Xxxxxxx Xxxxxxxx" |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Director, Vice President, General Counsel and Corporate Secretary |
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HUDBAY PERU INC. |
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by |
"Xxxxxxx Xxxxxxxx" |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Director and Secretary |
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by |
"Xxxxxxx Xxxxxxxx" |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Vice President, General Counsel and Corporate Secretary |
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HUDBAY (BVI) INC. |
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by |
"Xxxxxx Xxxxxx" |
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Name: Xxxxxx Xxxxxx |
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Title: Director |
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Signature Page to Amending Agreement No. 1 (Peru)
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6502873 CANADA INC. |
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by |
"Xxxxxxx Xxxxxxxx" |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Director, Vice President, General Counsel and Corporate Secretary |
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HUDBAY ARIZONA (BARBADOS) SRL |
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by |
"Xxxxxxx Xxxxxxxx" |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Director, Vice President and General Counsel |
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HUDBAY ARIZONA INC. |
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by |
"Xxxxxxx Xxxxxxxx" |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Director, Vice President and General Counsel |
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HUDBAY ARIZONA (US) CORPORATION |
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by |
"Xxxxx Xxxxxx" |
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Name: Xxxxx Xxxxxx |
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Title: President and Chief Operating Officer |
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HUDBAY ARIZONA (US) HOLDING CORPORATION |
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by |
"Xxxxx Xxxxxx" |
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Name: Xxxxx Xxxxxx |
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Title: President and Chief Operating Officer |
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COBRE VERDE DEVELOPMENT CORPORATION |
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by |
"Xxxxxxx Xxxxxxx" |
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Name: Xxxxxxx Xxxxxxx |
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Title: Director and Secretary |
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Signature Page to Amending Agreement No. 1 (Peru)
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ROSEMONT COPPER COMPANY |
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by |
"Xxxxxxx Xxxxxxx" |
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Name: Xxxxxxx Xxxxxxx |
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Title: Director and Secretary |
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XXXXX RESOURCES (US) INC. |
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by |
"Xxxxxxx Xxxxxxx" |
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Name: Xxxxxxx Xxxxxxx |
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Title: Director and Secretary |
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11215850 CANADA LIMITED |
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by |
"Xxxxxxx Xxxxxxxx" |
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Name: Xxxxxxx Xxxxxxxx |
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Title: Director, Vice President and General Counsel |
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SONORAN PROPERTY INVESTORS LLC, by Rosemont Copper Company, its sole Member and Manager |
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by |
"Xxxxxxx Xxxxxxx" |
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Name: Xxxxxxx Xxxxxxx |
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Title: Secretary |
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Signature Page to Amending Agreement No. 1 (Peru)
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Administrative Agent
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CANADIAN IMPERIAL BANK OF COMMERCE, as Agent |
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by |
"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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The Lenders
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CANADIAN IMPERIAL BANK OF COMMERCE, as Lender |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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THE BANK OF NOVA SCOTIA, as Lender |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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ING CAPITAL LLC, as Lender |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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Signature Page to Amending Agreement No. 1 (Peru)
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BANK OF MONTREAL, as Lender |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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ROYAL BANK OF CANADA, as Lender |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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THE TORONTO-DOMINION BANK, as Lender |
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by |
"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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NATIONAL BANK OF CANADA, as Lender |
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by |
"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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BARCLAYS BANK PLC, as Lender |
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by |
"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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Signature Page to Amending Agreement No. 1 (Peru)
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SCOTIABANK PERÚ S.A.A., as Lender |
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by |
"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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"Authorized Signatory" |
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Name: Authorized Signatory |
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Title: Authorized Signatory |
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Signature Page to Amending Agreement No. 1 (Peru)
