FOURTH AMENDING AGREEMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
99.5
FOURTH AMENDING AGREEMENT TO FOURTH AMENDED AND
RESTATED CREDIT AGREEMENT
THIS AGREEMENT dated as of the 9th day of April,
2018.
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
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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 and
January 19, 2018, 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 Tangible
Net Worth Definition.
The definition of
“Tangible Net Worth” in section 1.1 of the Credit
Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
““Tangible Net Worth” means, at any
particular time, the amount of Equity at such time less the
aggregate of the amounts, at such time, which would, in accordance
with International Financial Reporting Standards, be classified
upon the consolidated balance sheet of the Parent as goodwill
(without taking into account any future income tax assets that may
be classified as goodwill) and intangible
assets.”
2.3 Tangible
Net Worth Covenant.
Section 11.1(o)
of the Credit Agreement is hereby amended by deleting it in its
entirety and replacing it with the following:
“Tangible Net Worth. The Parent shall, at
all times, cause the consolidated Tangible Net Worth to be greater
than or equal to $131,000,000.”
2.4 Compliance
Certificate and Calculation Worksheet.
Schedule B of the
Credit Agreement is hereby amended by deleting it in its entirety
and replacing it with the Schedule B attached to this Fourth
Amending Agreement.
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) an
officer certificate of a senior officer of each Obligor with
respect to such matters as the Administrative Agent may reasonably
request, and (ii) 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.
[Remainder of page intentionally blank.]
Fourth 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.
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
& 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
& CEO
“Signed”
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Name: Xxxxxxx
XxXxxxxx
Title: Vice
President, Finance and CFO
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Fourth 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: Xxxxxxxxx
Xxxxxxx
Title: Managing
Director
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By:
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“Signed”
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Name: Alyssa
Senwasane
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Title: Associate
Director
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The Bank of Nova
Scotia
Corporate 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: 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: Alyssa
Senwasane
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Title: Associate
Director
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Fourth Amending Agreement
Compliance
Certificate
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TO:
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THE BANK OF NOVA
SCOTIA
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I,
____________________, the [senior financial officer] of Xxxxxxx
Mines Corp, hereby certify that:
1.
I am the duly appointed [<@>] of Xxxxxxx Mines Corp., the parent named in
the fourth amended and restated credit agreement made as of January
30, 2015 (as amended to the date hereof, the
“Credit
Agreement”) between,
Xxxxxxx Mines Inc., as borrower, the Lenders named therein and The
Bank of Nova Scotia, as administrative agent of the Lenders and as
such I am providing this Certificate for and on behalf of Xxxxxxx
Mines Corp. and Xxxxxxx Mines Inc. pursuant to the Credit
Agreement.
2.
I am familiar
with and have examined the provisions of the Credit Agreement
including, without limitation, those of Article 10, Article 11 and
Article 13 therein.
3.
To the best
of my knowledge, information and belief and after due inquiry, no
Default has occurred and is continuing.
As at or for the
relevant period ending _______________________, the amount and
financial ratio as contained in Section 11.1(o) of the Credit
Agreement is as follows and detailed calculations thereof are
attached hereto:
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Actual Amount or
Ratio
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Required Amount
or Ratio
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(a) Tangible
Net Worth
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_______
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$131,000,000
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4.
1Attached
hereto is a revised updated Schedule E of the Credit
Agreement.
5.
Unless the
context otherwise requires, capitalized terms in the Credit
Agreement which appear herein without definitions shall have the
meanings ascribed thereto in the Credit Agreement.
DATED this
_______ day of _____________, 20____.
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(Signature)
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(Name - please
print)
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(Title of Senior
Financial Officer)
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Fourth Amending Agreement
CALCULATION WORKSHEET
Tangible Net Worth
Actual:
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Equity as of
financial statements dated [ ]
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$
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Less:
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Goodwill and
other intangible assets
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$<@>
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Tangible Net
Worth
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$<@>
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Minimum
Required:
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Minimum
Level
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$131,000,000
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Compliance [Yes]/[No]
Fourth Amending Agreement
