ELEVENTH AMENDING AGREEMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 99.1
ELEVENTH AMENDING AGREEMENT TO
FOURTH
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AGREEMENT dated as of the
21st day
of December, 2023.
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, (as amended by
amending agreements dated January 27, 2016, January 31, 2017,
January 15, 2018, April 9, 2018, January 29, 2019, January 29,
2020, January 14, 2021, January 21, 2022, April 12, 2022 and
December 22, 2022, the “Credit Agreement”);
AND WHEREAS the parties hereto wish to,
inter alia, amend certain
provisions 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:
Eleventh Amending Agreement
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
AMENDMENTS
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.
Section 1.1 of
the Credit Agreement is hereby amended by deleting the definition
of “Maturity Date” and replacing it with the
following:
“Maturity Date” means January 31,
2025.
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 $[redacted], (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
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,
the enforceability of the Credit Agreement as amended by 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.
Eleventh Amending Agreement
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.
[Remainder of page intentionally blank.]
Eleventh Amending Agreement
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.
0000 - 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
& CEO
“Signed”
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Name:
Xxxxxxxxx Xxxxx
Title:
Chief Financial Officer
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Xxxxxxx Mines
Corp.
0000 - 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
& CEO
“Signed”
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Name: Xxxxxxxxx
Xxxxx
Title: Vice
President, Finance and Chief Financial Officer
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Eleventh Amending Agreement
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The Bank of Nova ScotiaCorporate Banking –
Loan Syndications40 Temperance Street, 6th FloorToronto, Ontario M5H 0B4
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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: Xxxxxxxxx
Xxxxxxx
Title: Managing
Director
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By:
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“Signed”
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Name: Xxxxxx
Xxxxxxxx
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Title:
Associate
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The Bank of Nova
ScotiaCorporate Banking – Global Mining
00 Xxxxxxxxxx
Xxxxxx, 6th Floor
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THE BANK OF NOVA SCOTIA, as Lender
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Toronto, Ontario
M5H 0B4
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By:
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“Signed”
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Name: Xxxxxxxxx
Xxxxxxx
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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: Xxxxxx
Xxxxxxxx
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Title:
Associate
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Eleventh Amending Agreement
