AMENDMENT AND WAIVER
EXHIBIT
99.27
AMENDMENT
AND WAIVER
This Amendment and Waiver Agreement
(this “Agreement”), is made
as of the 12th day of
November, 2010, by and among POLYMET MINING CORP., a
corporation existing under the laws of British Columbia (the “Company”), POLY MET MINING, INC., a
corporation existing under the laws of the State of Minnesota (the “Issuer”), and GLENCORE AG, a corporation
existing under the laws of Switzerland (the “Purchaser”).
RECITALS
WHEREAS, the Company, the Issuer and
the Purchaser are parties to that certain Purchase Agreement, dated as of
October 31, 2008, as amended by Letter Agreement, dated November 28, 2008, as
further amended by Amendment Letter No. 2, dated December 12, 2008, as further
amended by Amendment Letter No. 3, dated December 19, 2008, as further amended
by Amendment Letter No. 4, dated January 30, 2009, as further amended by
Amendment Letter No. 5, dated February 24, 2009, as further amended by Amendment
Letter No. 6, dated March 30, 2009, as further amended by Amendment Letter No.
7, dated April 28, 2009, as further amended by Amendment Letter No. 8, dated
June 4, 2009, as further amended by Amendment Letter No. 9, dated
August 31, 2009, as further amended by Amendment Letter No. 10, dated October
20, 2009, and as further amended by Amendment Letter No. 11 dated November 16,
2009 (as amended, supplemented or otherwise modified from time to time, the
“Purchase
Agreement”);
WHEREAS, pursuant to the Purchase
Agreement, (1) the Issuer agreed to issue Floating Rate Secured Debentures due
September 30, 2011 (each, a “Debenture” and
collectively, the “Debentures”) in five
separate tranches, consisting of four Debentures in the aggregate principal
amount of US$25,000,000 and a fifth Debenture in the principal amount of
US$25,000,000, in each case to be issued and delivered by the Issuer and paid
for by the Purchaser upon fulfillment or waiver of certain conditions set forth
therein; and (2) the Company issued (i) a warrant, exercisable from time to
time (the “Exchange
Warrant”), to purchase common shares of the Company, without par value
(the “Common
Shares”), in an amount equal to the principal amount of the first four
Debentures divided by $4.00, and the principal amount of the fifth Debenture
divided by $2.65, and (ii) a warrant, as amended, to purchase up to 6,250,000
Common Shares at an exercise price of US$3.00 (the “Purchase Warrant” and
together with the Exchange Warrant, the “Warrants”);
WHEREAS, (1) the first Debenture in the
original principal amount of US$7,500,000 (the “Tranche A Debenture”)
was issued to the Purchaser on October 31, 2008; (2) the second Debenture in the
original principal amount of US$7,500,000 (the “Tranche B Debenture”)
was issued to the Purchaser on December 24, 2009; (3) the third Debenture in the
original principal amount of US$5,000,000 (the “Tranche C Debenture”)
was issued to the Purchaser on June 18, 2009; (4) the fourth Debenture in the
original principal amount of US$5,000,000 (the “Tranche D Debenture”)
was issued to the Purchaser on September 2, 2009; and (5) US$2,200,000 of
interest has been capitalized as at the date hereof in connection with the
foregoing Debentures;
WHEREAS, the fifth Debenture in the
principal amount of US$25,000,000 (the “Tranche E Debenture”)
has not been issued to the Purchaser;
WHEREAS, pursuant to the Purchase
Agreement, the Company entered into a Registration Rights Agreement, dated as of
October 31, 2008 (the “Existing Registration Rights
Agreement”), with the Purchaser, pursuant to which the Company agreed
upon demand of the Purchaser to prepare and file with the United States
Securities and Exchange Commission a registration statement under the Securities
Act of 1933, as amended, covering the resale of, among other things, the Common
Shares into which the Warrants are exercisable and any other Common Shares
issued or issuable (1) upon exercise of the Warrants, (2) upon distribution with
respect to, or any exchange for or any replacement of, the Debentures or
Warrants, or (3) upon any conversion, exercise or exchange of any securities
issued in connection with any such distribution, exchange or replacement;
and
WHEREAS, the parties desire to (1)
amend and waive certain provisions of the Purchase Agreement, the outstanding
Debentures and the Exchange Warrant, (2) terminate the Purchaser’s commitment to
the purchase the Tranche E Debenture, (3) cancel the Purchase Warrant and (4)
terminate the Existing Registration Rights Agreement.
NOW THEREFORE, in consideration of the
terms and conditions contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
Section 1. Definitions.
Capitalized terms not defined in this Agreement shall have the meanings ascribed
to such terms in the Purchase Agreement.
Section 2. Amendment to the Purchase
Agreement. From and after the Effective Date (as defined in Section
9), any and all obligations of the Issuer to issue the Tranche E Debenture and
any and all obligations of the Purchaser to purchase the Tranche E Debenture
pursuant to the Purchase Agreement are hereby terminated and discharged in all
respects.
Section 3. Amendment to the Outstanding
Debentures. From and after the Effective Date, the "Maturity Date"
of each of the Tranche A Debenture, Tranche B Debenture, Tranche C Debenture and
Tranche D Debenture will be extended from September 30, 2011 to September 30,
2012, on which date all principal and interest accrued to September 30, 2012
will be due and payable in full on each Debenture.
Section 4. Amendment to the Exchange
Warrant. From and after the Effective Date, the expiration date of
the Exchange Warrant will be extended from September 30, 2011 to September 30,
2012.
Section 5. Cancellation of the Purchase
Warrant. The Company and the Purchaser hereby agree that the
Purchase Warrant shall be canceled at the Effective Date, and the Purchaser
shall have no further rights with respect to such Purchase Warrant, including,
but not limited to, any right to the Common Shares issuable upon exercise of the
Purchase Warrant. In connection herewith, the Purchaser is delivering
as of the date hereof the original Purchase Warrant to the Company for
cancellation.
Section 6. Waiver of Certain
Defaults. Subject to Issuer’s compliance with the terms and
conditions of this Agreement, the Purchaser hereby agrees not to pursue until
June 30, 2011 and hereby waives until June 30, 2011 any of its remedies under
each of the Purchase Agreement, Tranche A Debenture, Tranche B Debenture,
Tranche C Debenture and Tranche D Debenture as a result of any Event of Default
occurring before such date which would occur due to the Company’s failure to
deliver (i) the executed consent to the NorthMet Lease Mortgage as described in
Section 4.7(l) of the Purchase Agreement, and (ii) the documents and agreements
described in subclauses (e), (j), (k), (l) and (m) (solely as such subclauses
relate to the NorthMet Lease Mortgage) of Section 4.7 of the Purchase
Agreement. The waiver pursuant to this section 6 shall be effective
as of the date prior to such Event of Default.
Section 7. Issuance of New
Warrants. As partial consideration hereunder, the Purchaser shall
be issued on the date hereof a warrant of the Company, in the form attached
hereto as Exhibit A
(the “New
Warrant”), to purchase up to 3,000,000 Common Shares at an exercise price
of US$2.00 per share on or before December 31, 2015. The Company and
the Purchaser will execute and deliver on the date hereof a registration rights
agreement, substantially in the form attached hereto as Exhibit B, and such
registration rights agreement shall supersede the Existing Registration Rights
Agreement.
Section 8. Termination of Existing
Registration Rights Agreement. From and after the Effective Date,
the Existing Registration Rights Agreement shall be terminated.
Section 9. Effectiveness.
This Agreement shall become effective and be deemed effective as of the date
hereof upon execution of counterparts of this Agreement by each of the Company,
the Issuer and the Purchaser (the “Effective
Date”).
Section 10. Representations and
Warranties of the Company.
(a) Each
of the Company and the Issuer hereby makes the following representations and
warranties to the Purchaser:
(i) Authorization;
Enforcement. Each of the Company and the Issuer has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder. The execution and delivery of this Agreement by the Company and the
Issuer and the consummation by the Company and the Issuer of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Company and the Issuer and no further action is required by the
Company and the Issuer, their boards of directors or their shareholders in
connection herewith. This Agreement has been duly executed by the Company and
the Issuer and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Company and the Issuer
enforceable against the Company and the Issuer in accordance with its terms
except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies, and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(b) The
Purchaser hereby makes the following representations and warranties to the
Company and the Issuer:
(i) Authorization;
Enforcement. The Purchaser has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The execution
and delivery of this Agreement by the Purchaser and the consummation by the
Purchaser of the transactions contemplated hereby have been duly authorized by
all necessary action on the part of the Purchaser and no further action is
required by the Purchaser, its board of directors or its shareholders in
connection herewith. This Agreement has been duly executed by the Purchaser and,
when delivered in accordance with the terms hereof, will constitute the valid
and binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
Section 11. Effect on
Agreements. The foregoing amendments and agreements are given
solely in respect of the transactions described herein. Except as expressly set
forth herein, all of the terms and conditions of the Agreements (as defined the
Purchase Agreement) shall continue in full force and effect after the execution
of this Agreement, and shall not be in any way changed, modified or superseded
by the terms set forth herein.
Section 12. Filing of Form
6-K. The Company shall promptly upon receipt of a fully executed
copy of this Agreement, file a Report of Foreign Private Issuer on Form 6-K
disclosing all material aspects of the transactions contemplated
hereby.
Section 13. Subscription
Agreement. The parties acknowledge that simultaneously with the
execution of this Agreement, they will each execute and deliver a Subscription
Agreement pursuant to which, among other things, the Purchaser will purchase
from the Company, and the Company will issue and sell to the Purchaser, an
aggregate of 15,000,000 Common Shares, for a purchase price of $2.00 per share,
in three separate closings.
Section 14. Amendments and
Waivers. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
same shall be in writing and signed by the Company, the Issuer and the
Purchaser.
Section 15. Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be delivered as set forth in the applicable
Agreement (as defined in the Purchase Agreement).
Section 16. Successors and
Assigns. This Agreement may not be assigned by any party with the
prior written consent of the other parties. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective permitted successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
Section 17. Execution and
Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
Section 18. Expenses. The
parties hereto shall each pay the legal fees and disbursements of their
respective legal counsel in connection with the preparation, negotiation,
execution and delivery of this Agreement.
Section 19. Further
Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be
required to carry out the transactions contemplated hereby and to evidence the
fulfillment of the agreements herein contained.
Section 20. Governing Law.
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be determined in accordance with the
provisions of the Purchase Agreement.
Section 21. Severability.
If one or more provisions of this Agreement are held to be unenforceable under
Applicable Law, such provision shall be excluded from this Agreement and the
balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
Section 22. Headings. The
headings in this Agreement are for convenience only, do not constitute a part of
the Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
[SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have
duly executed this Amendment as of the date first written above.
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By:
/s/ Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Chief Financial Officer
POLY MET MINING,
INC.
By:
/s/ Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Chief Financial Officer
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| GLENCORE AG | |
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By:
/s/ Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
Officer
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By:
/s/ Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Officer
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