SENIOR SECURED GOLD STREAM CREDIT AGREEMENT December __, 2011
SANTA FE GOLD (BARBADOS) CORPORATION
as Borrower
THE GUARANTORS
FROM TIME TO TIME PARTY HERETO
as Guarantors
and
WATERTON GLOBAL VALUE, L.P., BY ITS INVESTMENT MANAGER, ALTITUDE MANAGEMENT LIMITED
as Lender
| SENIOR SECURED GOLD STREAM CREDIT AGREEMENT |
| December __, 2011 |
Xxxxxx Xxxxxxx LLP
Execution Copy – Senior Secured Gold Stream Credit Agreement
TABLE OF CONTENTS
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SENIOR SECURED GOLD STREAM CREDIT AGREEMENT
This SENIOR SECURED GOLD STREAM CREDIT AGREEMENT is dated December __, 2011 (the “Effective Date”) and entered into by and among Santa Fe Gold (Barbados) Corporation, a corporation incorporated pursuant to the laws of Barbados, as the borrower (the “Borrower”), Santa Fe Gold Corporation a corporation incorporated pursuant to the laws of the State of Delaware (“Santa Fe”), the Lordsburg Mining Company, a corporation incorporated pursuant to the laws of the State of New Mexico (“Lordsburg”), Azco Mica Inc., a corporation incorporated pursuant to the laws of the State of Delaware (“Azco” and together with Santa Fe and Lordsburg, the “Original Guarantors”), and, each person that accedes to the terms of this Agreement from time to time by executing a Guarantee, as a guarantor and Waterton Global Value, L.P., a limited partnership formed pursuant to the laws of the British Virgin Islands, by its Investment Manager, Altitude Management Limited (the “Lender”).
RECITALS
WHEREAS the Borrower has requested, and the Lender has agreed, to establish in favour of the Borrower, (i) a $20,000,000 senior secured, non-revolving credit facility (the “Facility”) and (ii) a $5,000,000 senior secured, revolving credit facility (the “Revolving Credit Facility”) on and subject to the terms and conditions herein set forth.
NOW THEREFORE THIS CREDIT AGREEMENT WITNESSES that for good and valuable consideration, the receipt and sufficiency of which are acknowledged by each of the parties hereto, each of the parties agrees as follows:
ARTICLE 1
INTERPRETATION
1.1 Defined Terms.
As used in this Agreement, the following terms have the following meanings:
“Additional Guarantor” means any Person which becomes a Guarantor in accordance with Section 9.1(w) .
“Advances” means collectively, the First Advance, the Second Advance and any advance under the Revolving Credit Facility and “Advance” means any one of such advances.
“Affairs” means the business, affairs, operations, undertaking, property, assets, liabilities, condition (financial or otherwise), prospects, performance and results of operations of a specified Person.
“Affiliate” means an affiliated body corporate and, for the purposes of this Agreement, (i) one body corporate is affiliated with another body corporate if one such body corporate is the subsidiary of the other or both are subsidiaries of the same body corporate or each of them is Controlled by the same Person and (ii) if two bodies corporate are affiliated with the same body corporate at the same time, they are deemed to be affiliated with each other.
“Aggregate Default Revolving Gold and Silver Facility Fee” means, in relation to (a) any repayment date in which the Loan and/or the Revolving Credit Facility are repaid in whole, including any repayment under Section 5.2, Section 5.3(c)(i) and Section 10.2, the aggregate amount of the Default Revolving Gold and Silver Facility Fee due and outstanding.
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“Agreed Priority” means, with respect to a Security Document and a Lien made in favour of the Lender, a senior, first priority Lien in favour of the Lender, meaning that such Security Document and Lien are prior in right to any other Lien in, on, or to the Collateral which is purported to be covered thereby, subject only, in each case, to Permitted Liens.
“Agreement” means this senior secured gold stream credit agreement and all schedules and instruments in amendment or confirmation of it; and the expressions “Article”, “Section”, “Subsection” and “paragraph” followed by a number or letter mean and refer to the specified Article, Section, Subsection or paragraph of this Agreement.
“Applicable Law” means any international treaty, any domestic or foreign constitution or any supranational, national, regional, federal, provincial, territorial, state, municipal, tribal or local statute, law, ordinance, code, rule, regulation, order (including any consent decree or administrative order), applicable to, or any directive, guideline, policy or Authorization of any Governmental Entity having jurisdiction with respect to any specified Person, property, transaction or event or any of such Person’s Affairs, and any order, judgment, award or decree of any Governmental Entity, or arbitrator in any proceeding or action to which the Person in question is a party or by which such Person or any of its Affairs is bound.
“Asarco Smelter Agreement” means the smelter agreement between Lordsburg and Asarco LLC dated August 16, 2010, and any extension or renegotiation of that agreement.
“Assay Certificate” has the meaning specified in Section 3.5.
“Aurubis Smelter Agreement” means the Smelter Agreement between Aurubis AG and Santa Fe dated December 21, 2010, and any extension or renegotiation of that agreement.
“Authorization” means any authorization, approval, consent, certificate, exemption, licence, permit, franchise, certification, registration or no-action letter from any Governmental Entity having jurisdiction with respect to any specified Person, property, transaction or event, or any of such Person’s Affairs or from any Person in connection with any easements or contractual rights.
“Batch” has the meaning specified in Section 3.5.
“Batch Repayment Amounts” has the meaning specified in Section 3.7.
“Batch Repayment Date” has the meaning specified in Section 3.7.
“Borrower” means Santa Fe Gold (Barbados) Corporation, a corporation incorporated and existing pursuant to the laws of Barbados, and its successors and permitted assigns.
“Borrowing Notice” means a written request by the Borrower for an Advance pursuant to Section 2.4 or Section 3.7(c) as applicable, which shall include all of the information referenced in Section 2.4 or Section 3.7(c), as applicable, and a certification from the Borrower, substantially in the form of Exhibit A hereto.
“Buildings and Fixtures” means all plant, buildings, structures, erections, improvements, appurtenances and fixtures (including fixed machinery and fixed equipment) situated on any of the Subject Properties.
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“Business” means the business of the Borrower and the Original Guarantors as conducted as at the date hereof.
“Business Day” means any day of the year, other than a Saturday, Sunday or any day on which major banks are closed for business in either Toronto, Ontario, or Albuquerque, New Mexico.
“Capital Lease” means, with respect to a Person, a lease or other arrangement in respect of real or personal property that is required to be classified and accounted for as a capital lease or debt obligation on a balance sheet of the Person in accordance with GAAP.
“Capital Lease Obligation” means, with respect to a Person, the obligation of the Person to pay rent or other amounts under a Capital Lease and for the purposes of this definition, the amount of such obligation at any date shall be the capitalized amount of such obligation at such date as determined in accordance with GAAP.
“Cash Payment Amount” means, in relation to any Repayment Date, at any time, the product of: the Monthly Repayment Ounces for such Repayment Date, multiplied by the Spot Price for such Repayment Date.
“Change of Control” means the occurrence of any of the following events:
| (a) |
any person or group of persons “acting in concert” (as interpreted in accordance with applicable securities legislation or regulation) shall have acquired legal or beneficial ownership of, or the power to exercise control or direction over, any Voting Shares of Santa Fe (or securities convertible into such Voting Shares), that together with such person’s existing securities would constitute Voting Shares of Santa Fe representing more than 30% of the total voting power attached to all Voting Shares of Santa Fe then outstanding; | |
| (b) |
any person or group of persons other than Santa Fe shall have acquired legal or beneficial ownership of, any shares of any Credit Party; | |
| (c) |
there is consummated any amalgamation, consolidation, statutory arrangement, merger or similar transaction of Santa Fe (1) in which Santa Fe is not the continuing or surviving corporation or (2) pursuant to which any Voting Shares of Santa Fe would be reclassified, changed or converted into or exchanged for cash, securities or other property, other than (in each case) an amalgamation, consolidation, statutory arrangement, merger or similar transaction of Santa Fe in which the holders of the Voting Shares of Santa Fe representing more than 80% of the total voting power attached to all such Voting Shares immediately prior to the amalgamation, consolidation, statutory arrangement, merger or similar transaction have, directly or indirectly, more than 80% of the Voting Shares of the continuing or surviving corporation immediately after such transaction; | |
| (d) |
any Person or group of Persons acting in concert shall succeed in having its nominees represent a majority of Santa Fe’s board of directors; or | |
| (e) |
the Borrower or any other Guarantor shall cease to directly own and control the Equity Interests that any of them has pledged to the Lender pursuant to a Security Document (in fact or by title). |
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“Code” means the USA Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means any and all real and personal property, assets, rights, titles and interests in respect of which the Lender has or will have a Lien pursuant to a Security Document, whether tangible or intangible, presently held or hereafter acquired, and all products and proceeds of the foregoing, including insurance proceeds related to the foregoing.
“Commitment Amount” means Twenty Million Dollars ($20,000,000) as decreased or otherwise reduced pursuant to the provisions hereof.
“Compliance Certificate” means a certificate of the Borrower substantially in (i) the form of Exhibit B, signed on its behalf by its chief financial officer or any other officer acceptable to the Lender or (ii) such other form as the Lender may determine.
“Constating Documents” means (i) with respect to a corporation, its certificate of incorporation, articles of incorporation, amalgamation or continuance or other similar documents and its by-laws, and (ii) with respect to any other Person which is an artificial body, the organization and governance documents of such Person in each case as amended and supplemented from time to time.
“Contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them that could reasonably be likely to (i) injure or damage property or plant or animal life, (ii) harm or cause a nuisance to any Person, (iii) adversely affect the health of any individual, (iv) impair the safety, of any individual, (v) render any property or plant or animal life unfit for use by humans, (vi) cause loss of enjoyment of normal use of property, or (vii) interfere with the normal course of business, and includes any “Contaminant” within the meaning assigned to such term (or any similar term) in any Environmental Law applicable to the Mining Properties or any of the Credit Parties.
“Contingent Liability” means, with respect to a Person, any agreement, undertaking or arrangement by which the Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in a debtor, or otherwise to assure a creditor against loss) the obligation, debt or other liability of any other Person or guarantees the payment of dividends or other distributions upon the shares of any Person. The amount of any contingent liability will, subject to any limitation contained therein, be deemed to be the outstanding principal amount (or maximum principal amount, if larger) of the obligation, debt or other liability to which the contingent liability is related.
“Control” of any Person means:
| (a) |
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: | ||
| (i) |
cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of such Person; or | ||
| (ii) |
appoint or remove all, or the majority, of the directors or other equivalent officers of such Person; or | ||
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| (iii) |
give directions with respect to the operating and financial policies of such Person with which the directors or other equivalent officers of such Person are obliged to comply; and/or |
| (b) |
the holding beneficially of more than 50% of the issued share capital of such Person. |
“Credit Documents” means this Agreement, the Guarantees, the Security Documents, each Borrowing Notice, each Compliance Certificate, and each other Instrument executed by the Borrower or other Credit Party in connection with this Agreement or any of the foregoing Instruments, whether or not specifically identified in this clause, as any of the foregoing may be amended, modified, supplemented, extended or restated from time to time in accordance with their respective terms.
“Credit Parties” means, collectively, the Borrower and each Guarantor, and “Credit Party” means any of them, together with their permitted successors and assigns.
“Credit Party Control Agreement” means the account control agreement relating to each of the Credit Party Accounts.
“Credit Party Accounts” means, collectively, the Credit Parties’ bank accounts listed in Schedule 9.1(r) and each a “Credit Party Account”.
“Debt” of any Person means:
| (a) |
all obligations of the Person for borrowed money, including debentures, notes or similar instruments and other financial instruments and obligations with respect to bankers’ acceptances and contingent reimbursement obligations relating to letters of credit; | |
| (b) |
all Financial Instrument Obligations of the Person; | |
| (c) |
all Capital Lease Obligations and Purchase Money Obligations of the Person; | |
| (d) |
all obligations to pay the deferred and unpaid purchase price of property or services, which purchase price is due and payable more than 90 days after the date of placing such property or service or taking delivery at the completion of such services; | |
| (e) |
all indebtedness of any Person secured by a Lien on any assets of such Person; | |
| (f) |
all obligations to repurchase, redeem or repay any shares of such Person; and | |
| (g) |
all Contingent Liabilities of the Person with respect to obligations of another Person if such obligations are of the type referred to in paragraphs (a) to (f). |
“Default” means an Event of Default or any event which, with the giving of notice or passage of time, or the making of any determination or any combination of the foregoing, would constitute an Event of Default.
“Default Revolving Gold and Silver Facility Fee” means, in relation to (a) any repayment date in which the Loan and/or the Revolving Credit Facility are repaid in whole, including any repayment under Section 5.2, Section 5.3(c)(i) and Section 10.2, and (b) a particular Batch in which the Revolving Facility Gold and Silver Fee with respect to such Batch remains unpaid as at the date of the applicable repayment date, the Revolving Gold and Silver Facility Fee for such Batch.
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“Direct Agreement” means a direct agreement entered into by a Credit Party, the counterparty to a Material Contract and the Lender in respect of the assignment of the rights of the Credit Party and the exercise of step-in rights by the Lender under such Material Contract, in form and substance satisfactory to the Lender.
“Director” means a director of a Credit Party and “Directors” means the board of directors of a Credit Party or, whenever duly empowered, a committee of the board of directors of a Credit Party, and reference to action by the Directors means action by the directors as a board or action by such a committee of the board as a committee.
“Discounted Partial Prepayment Amount” has the meaning specified in Section 5.3(c) .
“Discounted Prepayment Amount” has the meaning specified in Section 5.1.
“Disposal” means a sale, lease, release, abandonment, licence, exchange, transfer, loan, grant, option or other disposal by a Person of any asset, undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions) and “Dispose” shall have a corresponding meaning.
“Disposal Proceeds” means the consideration receivable by a Credit Party for any Disposal made by such Credit Party.
“Distribution” has the meaning specified in Section 9.2(g) .
“Dollars” and “$” means lawful money of the United States.
“Effective Date” has the meaning specified in the recitals hereto.
“Environmental Claims” means, all liabilities, (including costs of remedial actions, natural resource damages and costs and expenses of investigation and feasibility studies, including the cost of environmental consultants and cost of legal fees) that may be imposed on, incurred by, or asserted against a Credit Party as a result of, or related to, any claim, suit, action, investigation, proceeding or demand by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law or otherwise, arising under any Environmental Law, any Release or threatened Release of Hazardous Materials, or in connection with any environmental, health or safety condition arising prior to or after the date hereof.
“Environmental Laws” means any Applicable Law relating to pollution or protection of the environment, ecology or public health or safety or the Mining Properties, including, Applicable Laws relating to emissions, discharges, Releases or threatened Releases of Hazardous Materials or other pollutants, Contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment (including, ambient air, surface water, ground water, land surface or subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, pollutants, Contaminants, chemicals or industrial, toxic or hazardous substances or wastes.
“Equity Interests” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or non-voting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
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“ERISA” means the Employee Retirement Income Security Act of 1974 (USA), as amended, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect form time to time. References to sections of ERISA shall be construed to also refer to any successor sections.
“Event of Default” has the meaning specified in Section 10.1.
“Expropriation Event” means the appropriation, confiscation, expropriation, cancellation, seizure or nationalization (by Applicable Law, intervention, court order, condemnation, exercise of eminent domain or other action or form of taking) of ownership or control of a Credit Party or any of its Subsidiaries or of a Mining Property, or any substantial portion thereof, or any substantial portion of the rights related thereto, or any substantial portion of the economic value thereof, or which prevents or materially interferes with the ability of a Person to own or operate the property subject to such action, including by the imposition of any Tax, fee, charge or royalty.
“Facility” shall have the meaning given thereto in the Recitals.
“Fees” means the Structuring Fee and the Revolving Facility Gold and Silver Fee and all other fees (if any) payable by a Credit Party under this Agreement.
“Final Settlement Documents” has the meaning specified in Section 3.7.
“Financial Assistance” has the meaning specified in Section 9.2(h) .
“Financial Instrument Obligations” means, with respect to any Person, obligations arising under:
| (a) |
any interest rate swap agreement, forward rate agreement, floor, cap or collar agreement, future or option, insurance or other similar agreement or arrangement, or any combination thereof, entered into or guaranteed by the Person where the subject matter thereof is interest rates or the price, value or amount payable thereunder is dependent or based upon interest rates or fluctuations in interest rates in effect from time to time (but excluding non-speculative conventional floating rate indebtedness); | |
| (b) |
any currency swap agreement, cross-currency agreement, forward agreement, floor, cap or collar agreement, future or option, insurance or other similar agreement or arrangement, or any combination thereof, entered into or guaranteed by the Person where the subject matter thereof is currency exchange rates or the price, value or amount payable thereunder is dependent or based upon currency exchange rates or fluctuations in currency exchange rates in effect from time to time; or | |
| (c) |
any agreement for the making or taking of any commodity, swap agreement, floor, cap or collar agreement or commodity future or option or other similar agreement or arrangement, or any combination thereof, entered into or guaranteed by the Person where the subject matter thereof is any commodity or the price, value or amount payable thereunder is dependent or based upon the price or fluctuations in the price of any commodity; |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
or any other similar transaction, including any option to enter into any of the foregoing, or any combination of the foregoing, in each case to the extent of the net amount due or accruing due by the Person under the obligations determined by marking the obligations to market in accordance with their terms.
“Financial Quarter” means a period of three consecutive months in each Financial Year ending on March 31, June 30, September 30 and December 31, as the case may be, of such year.
“Financial Year” means, in relation to the Borrower, its financial year commencing on July 1 of each calendar year and ending on June 30 of the following year.
“First Advance” has the meaning ascribed to such term in Section 7.2(a)(ii) .
“FMI Smelter Agreement” means the Smelter Agreement between Freeport McMoran, Inc. and Lordsburg dated November 18, 2011, and any extension or renegotiation of that agreement.
“Full Prepayment Amount” means, as at any date of determination, the aggregate of (i) the Monthly Repayment Figures listed on Schedule 1.1(a), or any revised Schedule 1.1(a) delivered by the Borrower to the Lender in accordance with Section 5.1 or Section 5.2, for the month in which such determination is being made and (ii) all subsequent Monthly Repayment Figures.
By way of example, if only the First Advance is funded, the Full Prepayment Amount occurring within the seventeenth calendar month following the Effective Date would be 2,186,365, calculated as follows:
870,455+ 870,445 + 445,455 = 2,186,365
“GAAP” means:
| (a) |
in relation to any period ending on or prior to December 31, 2010 (or such other date as may be determined by the Financial Accounting Standards Board or any Governmental Entity to be the date on which companies similar to the Borrower are required to apply the standards referred to in paragraph (b) below), generally accepted accounting principles as applied in the United States of America from time to time; and | |
| (b) |
in relation to any other period thereafter, international financial reporting standards, approved by the International Accounting Standards Board or any successor thereto (“IASB”), adopted by the Borrower, as applicable, as at the date on which any calculation or determination is required to be made, provided that, in accordance with the international financial reporting standards, where the IASB includes a recommendation concerning the treatment of any accounting matter, such recommendation shall be regarded as the only international financing reporting standard. |
“Gold” means gold of a purity of at least 0.999 fine, and otherwise of grade and quality conforming to the stated requirements for good delivery by the London Bullion Market Association.
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“Gold Equivalent Ounces” means (i) the number of ounces of Gold produced during a specific period (for the purposes of this definition, the “Milestone Period”), plus (ii) the number of ounces of Silver produced during the Milestone Period expressed in additional ounces of Gold (for the purposes of this definition, the “Gold Equivalent”). The Gold Equivalent shall be equal to the number of ounces of Silver produced under (ii) above, divided by the quotient of (x) the average price of Gold during the Milestone Period, and (y) the average price of Silver during the Milestone Period. Average Gold and Silver prices shall be determined by reference to the average daily settlement prices of these metals on the London Bullion Market Association, PM Fix (Bloomberg: GoldLNPM and SLVRLN Indexes, respectively).
By way of example, if during the Milestone Period, 600 ounces of Gold and 60,000 ounces of Silver are produced and the average prices of Gold and Silver are $1,500 and $25, respectively, the number of Gold Equivalent Ounces shall be 1,600, calculated as follows:
= 600 + [60,000 / (1,500 / 25)]
= 1,600
“Governmental Entity” means (i) any multinational, national, federal, provincial, state, territorial, municipal, local, tribal, aboriginal, native or other government, governmental or public department, central bank, court, commission, board, bureau, agency, instrumentality or regulatory authority, domestic or foreign, (ii) any subdivision or authority of any of the foregoing, or (iii) any quasi-governmental or private body exercising any regulatory, judicial, expropriation or taxing authority under or for the account of any of the above.
“Guarantees” means the guarantee dated as at the date hereof from the Original Guarantors to and in favour of the Lender and each other guarantee by a Guarantor in favour of the Lender to be delivered in connection with this Agreement and/or any other Credit Document or any of the transactions contemplated herein or therein, together with all amendments, modifications, supplements, extensions and restatements thereof in accordance with its terms.
“Guarantors” means the Original Guarantors and each Additional Guarantor, and “Guarantor” means any one of them.
“Hazardous Material” means any substance or mixture of substances, or any pollutant or Contaminant, toxic or dangerous waste or hazardous material, as defined or listed in, or otherwise classified pursuant to, or give rise to liability under, any Environmental Law or applicable regulations, including any “hazardous substance”, “hazardous material”, “hazardous waste”, “toxic substance”, “contaminant”, “pollutant” or any other similar formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosiveness, reactivity, carcinogenicity, toxicity or dangerousness.
“Hedging Agreement” means (i) any currency exchange or interest rate swap agreement, currency exchange or interest rate cap agreement or currency exchange or interest rate collar agreements between any Credit Party and any other Person and (ii) all net forward sale, put/call options, spot deferred sale or other similar arrangement or agreement relating to the sale or purchase of any commodity.
“Indemnified Person” has the meaning specified in Section 11.5(a) .
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“Instrument” means any contract, agreement, undertaking, indenture, mortgage, certificate, document or writing (whether formal agreement, letter or otherwise) under which any obligation, duty, covenant, agreement, affirmation, undertaking or liability is evidenced, assumed or undertaken, or any right or Lien (or right or interest therein) is granted, authenticated, notarized, authorized or perfected, and any notice, registration, recordation or filing associated with or required by any of the foregoing.
“Insurance Proceeds” means the proceeds of any insurance claim under any insurance policy maintained by any Credit Party.
“Interest Payment Amount” means, in relation to any Interest Payment Date, the aggregate of (i) interest due and payable on the Loan with respect to the period ending on such Interest Payment Date at a rate of interest per annum equal to the Interest Rate and a year of 365 days; and (ii) the amount referred to in Section 3.4 for such Interest Payment Date (calculated on the basis of a year of 365 days).
“Interest Payment Date” means each of the following (i) the last Business Day of each calendar month for the period commencing on the Effective Date and ending on the Maturity Date, (ii) the Maturity Date, and (iii) any date on which the Borrower makes a voluntary or mandatory prepayment of the Loan or the Revolving Credit Facility.
“Interest Rate” means nine percent (9.00%) per annum.
“Leased Properties” means, collectively, the real properties forming the subject matter of the Leases.
“Leases” means the leases, subleases, rights to occupy and licences of real property or Buildings and Fixtures, to which any Credit Party is a party (i) at the date of this Agreement, as listed and described in Schedule 8.1(l), or (ii) after the date of this Agreement.
“Lender” means Waterton Global Value, L.P., by its investment manager, Altitude Management Limited, together with its successors and assigns.
“Lender Gold and Silver Supply Agreement” means the gold and silver supply agreement among, inter alia, Santa Fe and the Lender dated the date hereof.
“Lender Notice” has the meaning set forth in Section 3.5.
“Lender’s Counsel” means Xxxxxx Xxxxxxx LLP and, at any time, any other legal counsel retained by the Lender.
“Lender’s Gold Account” shall mean the account of the Lender at Xxxxxxx Matthey account number 573, or with such other institution or such other account as designated by the Lender in writing from time to time.
“Lien” means any mortgage, deed of trust, lien, pledge, charge, security interest, hypothecation, indenture, preferential right, assignment, option, claim, royalty, production payment, burden on production or other lien, encumbrance or collateral security Instrument in, on or to, or any right or interest, or the title of any vendor, lessor, lender or other secured party to, or interest or title of any Person under any conditional sale or other title retention agreement or capital lease with respect to, any property or asset owned or held by such Person, any mortgage, deed of trust, pledge, charge, security agreement, hypothecation, indenture, assignment or similar instrument, or the filing of a financing statement, personal property security act filing or other similar Instrument, which names such Person as debtor, or any security agreement or other similar Instrument authorizing any other party as the secured party thereunder to file any financing statement, personal property security act filing or other similar Instrument or any other arrangement, encumbrance or condition that in substance secures payment or performance of an obligation.
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“Loan” means the aggregate principal amount advanced and owing, at any time, under the Facility at such time.
“Lock-Box Account” has the meaning specified in Section 7.3(a)(iii) .
“Lordsburg Mill” means the Mill owned and operated by Lordsburg and located on the Summit Project.
“Mandatory Prepayment Amount” has the meaning specified in Section 5.1.
“Material” Siliceous Flux originating from the Summit Project which contains various amounts of Gold and Silver.
“Material Adverse Effect” means, when used with reference to any event or circumstance, any event or circumstance which has, had, or could reasonably be expected to have, a material adverse effect (or a series of adverse effects, none of which is material in and of itself but which cumulatively could result in a material adverse effect) on (i) any of the Mining Properties, (ii) the business, operations, results of operations, assets, performance, liabilities or the condition (financial or otherwise) of any Credit Party, (iii) any of the rights or remedies of the Lender or (iv) the ability of any Credit Party to perform its obligations under any of the Credit Documents, provided, however that any event or circumstance relating solely to the Xxxxx Property or the Xxxxx Lease, which does not cause a material adverse effect under any of paragraphs (i) through (iv) of this definition, shall not be deemed a Material Adverse Effect.
“Material Contracts” means, collectively, the agreements set out in Schedule 1.1(b) and any other agreement to which any Credit Party is a party and which is deemed material by the Lender to the Business or the operation of the Mining Properties.
“Maturity Date” means the Stated Maturity Date, or if the Loan or the Revolving Credit Facility has been accelerated, the date on which the Lender demands repayment of the Loan or the amounts outstanding under the Revolving Credit Facility.
“Milestones” means each of the following Milestones and each individually, a “Milestone”:
| (a) |
the Lender shall be satisfied, in its discretion, acting reasonably and in accordance with acceptable industry standards that Santa Fe has achieved one of the following two milestones: (i) has processed ore (originating from the Summit Project) through the Lordsburg Mill for three (3) consecutive months with an average throughput of 10,000 t/month and an average mill feed head grade of 0.095 opt Au and 9.0 opt Ag to recover an average of 600 ozs Au and 60,000 ozs Ag per month, or (ii) for three (3) consecutive months Santa Fe has recovered from the Summit Project at least one thousand six hundred (1,600) Gold Equivalent Ounces per month. Recovered metal shall be defined as payable metal settled with the smelter using average smelter returns from a minimum of the three (3) most recent previously settled contracts. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (b) |
The total cash costs per equivalent oz Au during the same three (3) month period as referred to in paragraph (a) of this definition shall have been $550/eq Oz Au, or less. The costs included in the foregoing calculation will be the aggregate of the following costs set out in the cashflow comprising Schedule 1.1(c): | ||
| (i) |
each of the costs under the subheading “Operational Costs – Mining”; | ||
| (ii) |
each of the costs under the subheading “Operational Costs – Milling”; and | ||
| (iii) |
the cost under the subheading “Other – G&A”. | ||
“Mill” means that certain structure or building for the crushing, grinding, treatment, processing and concentration of ores, minerals and other materials prior to its shipment to a smelter or refinery, commonly known as a mill, or ball mill which is located on the Summit Project, together with all related and associated fixtures, improvements and equipment, and all additions, repairs, renovations, upgrades, constructions, replacements, and new facilities, in whole or in part, whether now or hereafter existing.
“Mining Properties” and each individually, a “Mining Property”, includes each of the Projects and all surface, subsurface and mineral rights, and all surface, subsurface and mineral leases, concessions, licenses, claims, rights, titles or interests owned, leased, held or controlled by a Credit Party, and all related, associated or appurtenant rights, in each case howsoever characterized or designated, that are owned, leased, held, or controlled, directly or indirectly, by a Credit Party, with such rights, titles and interests described in Schedule 1.1(d) .
“Mogollon Project” means the mining project as further described in Exhibit C.
“Monthly Repayment Figure” means:
| (a) |
if only the First Advance is made, the amount for each month during the applicable Repayment Period set out opposite such month in the column entitled “T1 Funded” as set out in Schedule 1.1(a); | |
| (b) |
if the First Advance and Second Advance are made on or before the seventh month following the Effective Date, the amount for each month during the applicable Repayment Period set out opposite such month in the column entitled “TI/T2 Funded”, as set out in Schedule 1.1(a); or | |
| (c) |
if the First Advance and Second Advance are not both made on or before the seventh month following the Effective Date, the Lender shall deliver to the Borrower a revised repayment schedule which shall set out the amount to be repaid for each month during the applicable Repayment Period. |
By way of example: assuming that each of the First and Second Advances are advanced, the Monthly Repayment Figure for the Repayment Date occurring on the eighth month following the date hereof shall be $425,000.
“Monthly Repayment Ounces” means, in relation to any Repayment Date, the ounces of Gold equal to the quotient of: (i) the Monthly Repayment Figure for the month to which such Repayment Date relates, divided by (ii) the product of: the Spot Price for such Repayment Date, multiplied by the Pre-Milestone Discount or the Post-Milestone Discount (as applicable).
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Execution Copy – Senior Secured Gold Stream Credit Agreement
By way of example, assuming that only the First Advance is funded and the Spot Price is $1,500, the Borrower’s first Monthly Repayment Ounces would be 345.52 ounces of Gold, as demonstrated by the following example calculation:
[($425,000)] = 345.53 ounces of Gold
[($1,500
X 0.82)]
“Obligations” means all duties, covenants, agreements, liabilities, indebtedness and obligations of each of the Credit Parties with respect to the repayment, payment or performance of all indebtedness, liabilities and obligations (monetary or otherwise) of each of the Credit Parties, whenever arising, whether primary, secondary, direct, contingent, fixed or otherwise and whether joint, several, or joint and several, established by or arising under or in connection with this Agreement and each other Credit Document, including, in each case, the payment of principal, interest, fees, expenses, reimbursements and indemnification obligations.
“On-Site Laboratory” has the meaning specified in Section 3.5.
“Original Currency” has the meaning specified in Section 11.10(a) .
“Original Guarantors” has the meaning specified in the recitals herein.
“Xxxxx Lease” means the lease between Santa Fe and Xxxxx Mines Inc. dated August 1, 2004, as amended on May 1, 2010.
“Xxxxx Property” means the real property as more particularly described in Schedule 1.1(e) hereto which is subject to the Xxxxx Lease.
“Other Currency” has the meaning specified in Section 11.10(a) .
“Owned Properties” means, collectively, (i) the Mining Properties, and (ii) after the date of this Agreement, the additional lands and premises which are owned by any of the Credit Parties, excluding the Xxxxx Property.
“Partial Prepayment Amount” has the meaning specified in Section 5.3(c) .
“Pension Plan” means any plan or arrangement, whether funded or unfunded, registered or not registered, that provides defined benefit pensions or term-certain annuities in respect of any employees, former employees or retirees of any Credit Party.
“Permitted Debt” means, in respect of any Person, the following:
| (a) |
Debt under any of the Credit Documents; | |
| (b) |
Debt existing on the date hereof disclosed to the Lender in Schedule 8.1(aa) hereto provided the amount of such Debt shall not at any time be greater than the amount of such Debt as at the date hereof as described in Schedule 8.1(aa); | |
| (c) |
amounts payable arising in the ordinary course of business from the purchase of goods and services provided (i) such amounts are not overdue in excess of 90 days; and (ii) do not exceed in the aggregate an amount at any time in excess of $750,000; |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (d) |
purchase money financing for mining equipment used solely to further develop the Summit Property in an amount not to exceed $500,000 in the aggregate; and | |
| (e) |
Debt incurred with the prior written consent of the Lender in connection with the development of the Mining Properties. |
“Permitted Liens” means, in respect of any Person, any one or more of the following:
| (a) |
Liens for taxes, assessments or governmental charges or levies if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings and where adequate reserves (segregated to the extent required by GAAP), satisfactory to the Lender have been established in accordance with GAAP and so long as such contested Liens could not have a Material Adverse Effect; | |
| (b) |
Liens imposed by law, such as carriers, warehousemen and mechanics’ liens and other similar liens arising in the ordinary course of business associated with amounts not yet due and payable, provided that such Liens are not registered against title to any assets of the Person and in respect of which adequate holdbacks are being maintained as required by Applicable Law or such Liens are being contested in good faith by appropriate proceedings and in respect of which there has been set aside a reserve (segregated to the extent required by GAAP) in an amount satisfactory to the Lender and provided further that such Liens could not have a Material Adverse Effect; | |
| (c) |
Liens of purchase money mortgages and other security interests on equipment acquired, leased or held by a Credit Party in the ordinary course of business to secure the purchase price of or rental payments with respect to such equipment or to secure indebtedness incurred solely for the purpose of financing the acquisition, construction or improvement of any such equipment (including such mining equipment contemplated in paragraph (d) of the definition of “Permitted Debt”) to be subject to such mortgages or security interests, or mortgages or other security interests existing on any such equipment at the time of such acquisition, or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided that no such mortgage or other security interest shall extend to or cover any equipment other than the equipment being acquired, constructed or improved, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the mortgage or security interest being extended, renewed or replaced, provided, further, that such Liens shall not exceed $500,000 in the aggregate; | |
| (d) |
Liens outstanding on the date hereof and described in Schedule 1.1(f) hereto; | |
| (e) |
Liens in favour of the Lender arising under the Security Documents; | |
| (f) |
cash or governmental obligations deposited in the ordinary course of business in connection with contracts, bids, tenders or to secure workmen’s compensation, unemployment insurance, surety or appeal bonds, costs of litigation, when required by law, public and statutory obligations, Liens or claims incidental to current construction, mechanics’, warehousemen’s, carriers’ and other similar Liens; and |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (g) |
Liens given in the ordinary course of business to a public utility or any municipality or governmental or other public authority when required by such utility or municipality or governmental or other authority in connection with the operations of the Borrower. |
“Permitted Related Party Transactions” means those related party transactions listed in Schedule 1.1(g) hereto.
“Person” means a natural person, partnership, limited liability company, corporation, joint stock company, trust, unincorporated association, joint venture or other entity or Governmental Entity, and pronouns have a similarly extended meaning.
“Phase 1 Advance Amount” has the meaning specified in Section 3.5.
“Phase 2 Advance Amount” has the meaning specified in Section 3.6.
“Phase 2 Borrower Estimate” has the meaning specified in Section 3.6.
“Phase 1 Certificates” has the meaning specified in Section 3.5.
“Phase 1 Eligible Gold Ounces” has the meaning specified in Section 3.5.
“Phase 1 Eligible Silver Ounces” has the meaning specified in Section 3.5.
“Phase 2 Eligible Gold Ounces” has the meaning specified in Section 3.6.
“Phase 2 Eligible Silver Ounces” has the meaning specified in Section 3.6.
“Plan” means at a particular time, any employee benefit plan that is covered by ERISA and in respect of which a Credit Party is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Post-Milestone Discount” means 0.85, which discount level shall apply once the Milestones have been completed to the satisfaction of the Lender in its sole discretion, acting reasonably.
“Pre-Milestone Discount” means 0.82, which discount level shall apply until such time as the Milestones have been completed to the satisfaction of the Lender in its sole discretion, acting reasonably.
“Prepayment Notice” has the meaning specified in Section 5.3(a) .
“Prior Day Price” means:
| (a) |
in relation to any Repayment Date, (i) in the case of Gold, the settlement per ounce price of Gold on the London Bullion Market Association, PM Fix (Bloomberg: GoldLNPM Index); and (ii) in the case of Silver, the settlement per ounce price of Silver on the London Bullion Market Association, PM Fix (Bloomberg: SLVRLN Index); for each of (i) and (ii), on the Business Day immediately preceding such Repayment Date; and |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (b) |
in relation to any other payment date (which is not a Repayment Date), (i) in the case of Gold, the settlement per ounce price of Gold on the London Bullion Market Association, PM Fix (Bloomberg: GoldLNPM Index); and (ii) in the case of Silver, the settlement per ounce price of Silver on the London Bullion Market Association, PM Fix (Bloomberg: SLVRLN Index); for each of (i) and (ii) on the Business Day immediately preceding such payment date. |
“Projects” means collectively, the Mogollon Project and the Summit Project and each individually, a “Project”.
“Project Permits” means those Authorizations for the development and operation of the Mining Properties, excluding the Xxxxx Property as defined in Section 8.1(ll) .
“Prudent Mining Industry Practices” means those practices, standards, methods, techniques and specifications, as they may evolve, change and modify from time to time that (a) are commonly used and generally accepted in the mining industry as good, safe and prudent operational, administrative and engineering practices in connection with the design, construction, operation, maintenance, repair or use of mining projects, mining facilities, mining infrastructure, mining equipment or other components of a mining operation, (b) conform in all material respects to Applicable Laws, (c) conform in all material respects to operational and maintenance guidelines and requirements suggested by applicable manufacturers, suppliers and insurance providers (taking into account the size, age, service and type of asset), and (d) are commercially reasonable based on the nature of the Mining Properties.
“Purchase Money Obligation” means, in relation to any Person, indebtedness of such Person issued, incurred or assumed to finance all or part of the cost of acquiring any asset for such Person.
“Refined Ounces” has the meaning set out in Section 3.7.
“Refiner” means Asarco LLC, Aurubis AG and Freeport McMoran, Inc. provided the Borrower and such Refiner are party to a Direct Agreement in form and substance satisfactory to the Lender.
“Refiner Receipt Date” has the meaning specified in Section 3.6.
“Related Party” means in respect of any Credit Party (a) a Person which alone or in combination with others holds a sufficient number of securities or an Equity Interest or has contractual rights sufficient to affect materially the Control of such Credit Party, (b) a Person who beneficially owns, directly or indirectly, voting securities of such Credit Party or who exercises Control or direction over voting securities of such Credit Party or a combination of both carrying more than 10% of the voting rights attached to all voting securities of such Credit Party for the time being outstanding, (c) a director or senior officer of a Credit Party or Related Party of any Credit Party, or (d) an Affiliate of any of the foregoing.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, leeching or migration of any element or compound in or into the indoor or outdoor environment (including the abandonment or disposal of any barrels, tanks, containers or receptacles containing any Contaminant), or in, into or out of any vessel or facility, including the movement of any substance through the air, soil, subsoil, surface, water, groundwater, rock formation or otherwise.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
“Relevant Jurisdiction” means, from time to time, any jurisdiction in which a Credit Party has property or assets, or in which it carries on business and, for the purposes of this Agreement, includes each of the jurisdictions in which the Projects are located.
“Repayment Date” means the last Business Day of each calendar month during the Repayment Period.
“Repayment Period” means:
| (a) |
if only the First Advance is advanced to the Borrower, the thirteen-month period commencing with (and including) the seventh month following the date hereof; and | |
| (b) |
if each of the First and Second Advances are advanced to the Borrower, the twenty- four month period commencing with and including the seventh month following the date hereof. |
“Revolving Credit Facility” has the meaning ascribed to such term in Section 3.1.
“Revolving Credit Limit” means $5,000,000 as may be otherwise reduced pursuant to the provisions hereof.
“Revolving Facility Gold and Silver Fee” has the meaning ascribed to such term in Section 3.8.
“Revolver Silver Spot Price” has the meaning ascribed to such term in Section 3.5.
“Revolver Spot Price” has the meaning ascribed to such term in Section 3.5.
“Sandstorm Gold Supply Agreement” means the gold supply agreement among, inter alia, the Borrower and Sandstorm Resources (Barbados) Ltd., dated September 11, 2009 as amended on March 29, 2011 and June 28, 2011, as at the date hereof.
“Sandstorm Lock-Box Account” has the meaning ascribed to such term in Section 7.3(a)(iii) .
“Second Advance” has the meaning ascribed to such term in Section 7.3(a)(ii) .
“Secured Assets” means all of the assets now owned or hereafter acquired by the Borrower, the Original Guarantors and/or each of the other Credit Parties and, without limitation, all personal property (including securities) and real property, other than Santa Fe’s legal and beneficial rights in the Xxxxx Property and the Xxxxx Lease.
“Security” means, at any time, the Liens in favour of the Lender in the Secured Assets securing the Obligations.
“Security Agreements” means any security agreement or other Instrument by which the Lender obtains a Lien in or on any property or assets of a Credit Party to secure the Obligations, together with all amendments, modifications, supplements, extensions and restatements thereof in accordance with its terms.
“Security Documents” means each of the Security Agreements and any other security granted to the Lender by any Credit Party, as security for the payment and performance of the Obligations, in each case, with all modifications, supplements, amendments, extensions or restatements thereto or thereof in accordance with their respective terms, all schedules and exhibits attached thereto and all financing statements, personal property security act filings and other Instruments required to be filed or recorded or notices required to be given in order to authenticate and perfect the Liens created by the foregoing.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
“Silver” means silver of a purity of at least 0.999 fine, and otherwise of grade and quality conforming to the stated requirements for good delivery by the London Bullion Market Association.
“Spot Price” means, in relation to any date, the lesser of (i) the average settlement per ounce price of Gold on the London Bullion Market Association, PM Fix (Bloomberg: GoldLNPM) for the previous thirty (30) trading days and (ii) the Prior Day Price for such date.
“Spot Price for Silver” means, in relation to any date, the lesser of (i) the average settlement per ounce price of Silver on the London Bullion Market Association, PM Fix (Bloomberg: SLVRLN Index) for the previous thirty (30) trading days and (ii) the Prior Day Price for such date.
“Stated Maturity Date” means (i) the last Business Day of the 19th month following the date hereof if the First Advance is advanced; and (ii) the last Business Day of the 30th month following the date hereof if the Second Advance is advanced.
“Structuring Fee” means the structuring fees described in Section 2.1.
“Subject Properties” means, collectively, the Mining Properties and all other Owned Properties and Leased Properties, and each individually a “Subject Property”.
“Subsidiaries” means the subsidiaries of a Credit Party.
“subsidiary” means with respect to any Person (the “parent”) at any date, (i) any corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all equity interests entitled to vote in the election of the board of directors thereof are, as of such date, held by the parent and/or one or more subsidiaries of the parent, (ii) any partnership, (x) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (y) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iii) any other Person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent.
“Xxxxxx Debenture” has the meaning specified in Section 7.2(a)(v) .
“Summit Project” means the mining project as further described in Exhibit C.
“Verification Process” has the meaning specified in Section 3.6.
“Victory Park Financing Agreement” means that Financing Agreement among, inter alia, Santa Fe and Victory Park Management, LLC dated August 2, 2011.
“Voting Shares” means shares of capital stock of any class of any corporation carrying voting rights under all circumstances, provided that, for the purposes of such definition, shares which only carry the right to vote conditionally on the happening of any event shall not be considered Voting Shares, whether or not such event shall have occurred, nor shall any shares be deemed to cease to be Voting Shares solely by reason of a right to vote accruing to shares of another class or classes by reason of the happening of such event.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
“Waste” means ashes, garbage and refuse and includes domestic waste, industrial waste, municipal refuse or such other wastes as are designated as such under any Environmental Law.
“Weighing Process” has the meaning specified in Section 3.5.
“Weight and Sampling Certificate” has the meaning specified in Section 3.6.
1.2 Other Usages.
References to “this Agreement”, “the agreement”, “hereof”, “herein”, “hereto” and like references refer to this Agreement and not to any particular Article, Section, Subsection, paragraph or other subdivision of this Agreement. Any references herein to any agreements or documents shall mean such agreements or documents as amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof and thereof.
1.3 Gender and Number.
Any reference in the Credit Documents to gender includes all genders and words importing the singular number only include the plural and vice versa.
1.4 Headings, etc.
The provision of a Table of Contents, the division of this Agreement into Articles and Sections and the insertion of headings are for convenient reference only and are not to affect the interpretation of this Agreement.
1.5 Currency.
All references in the Credit Documents to dollars, unless otherwise specifically indicated, are expressed in United States currency.
1.6 Meaning of certain terms
Any reference in this Agreement to:
| (a) |
a Default being “continuing” means that such Default has not been waived or remedied and an Event of Default being “continuing” means that such Event of Default has not been waived; | |
| (b) |
unless otherwise indicated, a “Credit Document” or any other agreement or instrument is a reference to that Credit Document or other agreement or instrument as amended, modified, novated, supplemented, extended or restated; | |
| (c) |
“indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; | |
| (d) |
“knowledge” of any Person shall be deemed to mean such knowledge after due and diligent inquiry; and |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (e) |
“repay” (or any derivative form thereof) shall, subject to any contrary indication, be construed to include “prepay” (as, as the case may be, the corresponding derivative form thereof). |
1.7 Certain Phrases, etc.
In any Credit Document (i) (x) the words “including” and “includes” mean “including (or includes) without limitation”, and does not create or denote a limitation, (y) the phrase “the aggregate of”, “the total of”, “the sum of”, or a phrase of similar meaning means “the aggregate (or total or sum), without duplication, of”, and (z) the word “asset” includes present and future properties, revenues and rights of every description, and (ii) in the computation of periods of time from a specified date to a later specified date, unless otherwise expressly stated, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.
1.8 Accounting Terms.
All accounting terms not specifically defined in this Agreement shall be interpreted in accordance with GAAP.
1.9 Incorporation of Schedules.
The schedules and exhibits attached to this Agreement shall, for all purposes of this Agreement, form an integral part of it.
1.10 Conflict.
The provisions of this Agreement prevail in the event of any conflict or inconsistency between its provisions and the provisions of any of the other Credit Documents.
1.11 Certificates.
Whenever the delivery of a certificate is a condition precedent to the taking of any action by the Lender or the occurrence of any event hereunder, the truth and accuracy of the facts and the diligent and good faith determination of the opinions stated in such certificate shall in each case be conditions precedent to have such action taken, and any certificate executed by any Credit Party shall be deemed to represent and warrant that the facts stated in such certificate are true and accurate in all respects.
ARTICLE 2
FACILITY
2.1 Fees.
On the date hereof, the Borrower shall pay to the Lender a one-time cash structuring fee in an amount equal to two percent (2%) of the Commitment Amount (the “Structuring Fee”).
2.2 The Facility.
Subject to the terms and conditions hereof, the Facility shall be made available by the Lender to the Borrower by way of the First Advance and the Second Advance.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
2.3 Non Revolving.
The Facility is a non-revolving facility, and any repayment under the Facility shall not be reborrowed.
2.4 Borrowing Procedure.
The Borrower shall request the borrowing of an Advance by delivering to the Lender a written Borrowing Notice signed by the Borrower, which shall be delivered to the Lender by no later than 15 days (or such shorter period as may be agreed to by the Lender) prior to the date of the requested Advance. Each Borrowing Notice shall be irrevocable and shall specify (i) that an Advance is requested by the Borrower, (ii) the date of the requested Advance (which shall be a Business Day not earlier than 15 days after delivery, or such earlier date as may be agreed by the Lender), (iii) the aggregate principal amount of the Advance to be borrowed, (iv) the specific purposes to which the proceeds of such Advance shall be applied (as permitted by Section 2.5 below) by reference to specific applicable information, and (v) such other information and certifications as set forth in the form of Borrowing Notice and as the Lender shall otherwise have reasonably requested. Each submittal of a Borrowing Notice by the Borrower to the Lender shall constitute a separate representation, warranty and covenant by the Borrower to use and apply the proceeds of the Advance solely as set forth in such Borrowing Notice. Subject to the terms and conditions hereof, an Advance requested by the Borrower shall be made available by way of wire transfer or other electronic funds transfer of the applicable funds into a Credit Party Account. No Advance shall be advanced if a Default has occurred and is continuing or could result from such Advance (unless the Lender has waived the relevant Default for the purpose of advancing the Advance).
2.5 Use of Proceeds.
The Credit Parties shall use the proceeds from (i) the First Advance, to repay all indebtedness and satisfy any obligations owing by the Credit Parties or any of its Affiliates or subsidiaries pursuant to the Victory Park Financing Agreement and the remainder for working capital purposes related to the development of the Subject Properties, other than the Xxxxx Project and (ii) the Second Advance, to acquire all of the issued and outstanding shares of Columbus Silver Corporation and Columbus Silver (U.S.) Corporation.
2.6 Lender’s Loan Records.
The Lender shall maintain accounts and records evidencing all Advances made under the Facility and all payments received hereunder, which accounts and records shall constitute, in the absence of manifest error, prima facie evidence thereof.
ARTICLE 3
REVOLVING CREDIT FACILITY
3.1 Revolving Credit Facility.
Subject to the terms and conditions hereof, the Lender establishes in favour of the Borrower a revolving credit facility in the maximum aggregate principal amount of up to the Revolving Credit Limit (the “Revolving Credit Facility”).
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Execution Copy – Senior Secured Gold Stream Credit Agreement
3.2 Availability of the Revolving Credit Facility.
Subject to the terms and conditions hereof, the Borrower may from time to time, before the Maturity Date, borrow, repay and re-borrow certain amounts under the Revolving Credit Facility (subject to the Revolving Credit Limit). Provided that the Borrower may not borrow any amounts under the Revolving Credit Facility until the execution of a Direct Agreement satisfactory in form to the Lender, with respect to either the (i) Asarco Smelter Agreement; (ii) the Aurubis Smelter Agreement; or (iii) the FMI Smelter Agreement. Provided further that, the Borrower may only borrow under the Revolving Credit Facility, if any Batch being processed in connection with such draw down under the Revolving Credit Facility, is with a Smelter which is party to a Direct Agreement.
3.3 Use of Proceeds.
The Credit Parties shall use the proceeds from the Revolving Credit Facility as follows and in the following priority: (i) to purchase Gold specifically for the purposes of discharging their then current obligations under the Sandstorm Gold Supply Agreement, (ii) to purchase Gold specifically for the purposes of discharging their then current obligations under the Lender Gold and Silver Supply Agreement, and (iii) for working capital purposes.
3.4 Interest on Revolving Credit Facility.
On each Interest Payment Date, the Borrower shall pay to the Lender interest, in arrears, on each Advance under the Revolving Credit Facility at a rate per annum equal to five percent (5.00%) .
3.5 Phase 1 Funding, Eligible Gold and Silver Ounces.
If the Borrower intends to request an Advance under the Revolving Credit Facility, it shall identify for the Lender the Material to which such Advance relates (each a “Batch”) and for each Batch it shall provide, each in form and substance satisfactory to the Lender, acting reasonably (a) an assay certificate (the “Assay Certificate”) prepared by a laboratory located on the premises of a Credit Party (an “On-Site Laboratory”) which states the grade of the Gold and Silver within each Batch; and (b) a description of the physical weight of the Batch as prepared by a Credit Party and measured in imperial tons using a certified scale (the “Weighing Process”), together with any additional technical information relating to the Batch as is reasonably requested by the Lender (collectively, the Phase 1 Certificates”). The Batch shall be allocated an individual tracking number and the Borrower shall ensure that it is not commingled with any other Batch or any other material and that it is distinctly identifiable at all times. The preparation of the Assay Certificate by the On-Site Laboratory and the Weighing Process shall each be completed and carried-out in accordance, and consistently with, accepted industry standards. The Lender may at its sole discretion request such additional information relating to, the preparation of the Assay Certificate, the On-Site Laboratory and the Weighing Process that it deems necessary to independently verify that each of the foregoing are consistent (or function consistently) with accepted industry standards.
Within three (3) Business Days of receipt of the Phase 1 Certificates, the Lender shall provide a written notice to the Borrower (the “Lender Notice”) setting out the number of ounces of Gold (the “Phase 1 Eligible Gold Ounces”) and the number of ounces of Silver (the “Phase 1 Eligible Silver Ounces”) which it estimates, in its sole discretion, exists within the Batch described in the Phase 1 Certificates. Upon receipt of a Lender Notice, the Borrower may in accordance with Section 3.9, request an Advance under the Revolving Credit Facility in an amount (the “Phase 1 Advance Amount”) not exceeding the aggregate of (i) fifty percent (50%) multiplied by the product of (y) the Phase 1 Eligible Gold Ounces and (z) the Spot Price on the date of the Lender Notice (the “Revolver Spot Price”) and (ii) fifty percent (50%) multiplied by the product of (y) the Phase 1 Eligible Silver Ounces and (z) the Silver Spot Price on the date of the Lender Notice (the “Revolver Silver Spot Price”). The Phase 1 Advance Amount shall be funded by the Lender only after the transportation of the relevant Batch to the Refiner has been irrevocably initiated in accordance with the Asarco Smelter Agreement, the Aurubis Smelter Agreement, or the FMI Smelter Agreement, as applicable.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
For example, if in relation to a Batch, the Lender estimates that such Batch contains 1,000 Phase 1 Eligible Gold Ounces and 80,000 Eligible Silver Ounces pursuant to the calculation set forth in this Section 3.5 and the Revolver Gold Spot Price for such Batch is $1,500 and the Revolver Silver Spot Price is $25, the Phase 1 Advance Amount which the Borrower may draw down under the Revolving Credit Facility shall be $1,750,000, calculated as follows:
= 50% * [1,000 X $1,500]
= $750,000
Plus
50% * [80,000 X $25]
= $1,000,000
Phase 1 Advance Amount = $1,750,000
3.6 Phase 2 Funding, Eligible Gold and Silver Ounces.
Within thirty-five (35) days of the Lender funding any Phase 1 Advance Amount with respect to a Batch, the Batch shall be received by a Refiner and the Borrower covenants that it will immediately provide written notice to the Lender once the Batch has been received by the Refiner (the “Refiner Receipt Date”). Furthermore, the Borrower will require the Refiner to avoid commingling a Batch with any other Batch or material to ensure that each individual Batch is identifiable at all times.
Promptly after the Refiner Receipt Date, the Borrower shall deliver, or cause to be delivered, to the Lender the weight and sampling certificate or any equivalent documentation that provides the key technical metrics relating to such Batch prepared by the Refiner (the “Weight and Sampling Certificate”). At the same time that the Borrower provides notice to the Lender of the Refiner Receipt Date, the Borrower shall also deliver to the Lender an estimate (the “Phase 2 Borrower Estimate”) of the number of ounces of Gold (the “Phase 2 Eligible Gold Ounces”) and the number of ounces of Silver (the “Phase 2 Eligible Silver Ounces”) that exist within such Batch. In its sole discretion, the Lender may, prior to making an Advance to the Borrower under the Revolver Facility with respect to a Phase 2 Borrower Estimate, verify the Phase 2 Borrower Estimate by testing the relevant Batch at an independent laboratory (as selected by the Lender, in its sole discretion) (the “Verification Process”). If the Lender elects to engage in the Verification Process, the Borrower, at the request of the Lender, shall immediately cause the Refiner to provide the Lender (or a laboratory at the direction of the Lender) a sufficient sample of the Batch to permit the Lender or any of its agents to complete the Verification Process.
Upon the Lender’s receipt and approval of the Phase 2 Borrower Estimate, the Borrower may, in accordance with Section 3.9, request an Advance under the Revolving Credit Facility in an amount not exceeding (A) the aggregate of (i) eighty percent (80%) multiplied by the product of (y) the Phase 2 Pricing Gold Ounces (as defined below), and (z) the Revolver Spot Price, and (ii) eighty percent (80%) multiplied by the product of (y) the Phase 2 Pricing Silver Ounces (as defined below) and (z) the Revolver Silver Spot Price, less (B) the Phase 1 Advance Amount for the Batch (the “Phase 2 Advance Amount”).
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Execution Copy – Senior Secured Gold Stream Credit Agreement
“Phase 2 Pricing Gold Ounces” shall mean, with respect to a specific Batch, the lesser of (i) the Phase 1 Eligible Gold Ounces, and (ii) the Phase 2 Eligible Gold Ounces.
“Phase 2 Pricing Silver Ounces” shall mean, with respect to a specific Batch, the lesser of (i) the Phase 1 Eligible Silver Ounces, and (ii) the Phase 2 Eligible Silver Ounces.
3.7 Repayment of Revolving Credit Facility and Distribution of Proceeds Received from Refiner.
On or before the earlier of: (i) 120 days after the date on which the Phase 1 Eligible Amount is advanced to the Borrower; and (ii) ten (10) days after the date on which the Refiner would otherwise be required to make payment for the actual number of ounces of Gold or Silver within a Batch (the “Refined Ounces”) that are actually refined, (the “Batch Repayment Date”), all Phase 1 Advance Xxxxxxx, Xxxxx 0 Advance Amounts, unpaid interest amounts and the Revolving Facility Gold and Silver Fee relating to such Batch (collectively, the “Batch Repayment Amounts”) shall become immediately due and payable. Furthermore, the Borrower shall immediately notify the Lender once it has received notice from the Refiner under (ii) above.
Within three (3) days of the Batch Repayment Date, and any other time reasonably requested by the Lender, the Borrower shall provide to the Lender copies of all documentation provided by the Refiner to the Borrower in relation to the Refined Ounces (the “Final Settlement Documents”).
The Credit Parties shall ensure that the proceeds of each payment from a Refiner are applied (and shall direct each Refiner to make such payment directly) as follows:
| (a) |
firstly, to the Lender in payment of (i) the Batch Repayment Amounts; and (ii) any other amounts owing by the Credit Parties pursuant to the Credit Documents and/or the Lender Gold and Silver Supply Agreement; | |
| (b) |
secondly to the Lender, if at the time the above proceeds are to be paid by the Refiner, certain obligations of one or more of the Credit Parties under the Sandstorm Gold Supply Agreement are due and outstanding, to enable the Lender to satisfy such obligations on behalf of the Credit Parties; and | |
| (c) |
thirdly, any remaining proceeds after payment under paragraph (a) and (b) to the Borrower. |
3.8 Revolving Facility Gold and Silver Fee.
For each Batch, the Borrower shall pay the Lender a revolving facility gold and silver fee (the “Revolving Facility Gold and Silver Fee”) in an amount equal to the aggregate of (A) the product of (i) the number of ounces of Gold determined to be within a Batch as set out in the Final Settlement Documents multiplied by (ii) the difference between the Revolver Spot Price, for such Batch, and the lowest fifteen day average spot price per ounce of Gold on the London Bullion Market Association, PM Fix (Bloomberg: GoldLNPM) during the period commencing on the date of receipt by the Lender of the Phase 1 Certificates and ending on the Batch Repayment Date; and (B) the product of (i) the number of ounces of Silver determined to be within a Batch as set out in the Final Settlement Documents multiplied by (ii) the difference between the Revolver Silver Spot Price, for such Batch, and the lowest fifteen day average spot price per ounce of Silver on the London Bullion Market Association, PM Fix (Bloomberg: SLVRLN) during the period commencing on the date of receipt by the Lender of the Phase 1 Certificates and ending on the Batch Repayment Date
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Execution Copy – Senior Secured Gold Stream Credit Agreement
In relation to any Batch, the Revolving Facility Gold and Silver Fee shall be payable by the Borrower within ten (10) days of the applicable Batch Repayment Date. If for any reason the Final Settlement Documents are not produced with respect to any particular Batch, the number of ounces of Gold and Silver used to determine the Revolving Facility Gold and Silver Fee for such Batch shall be equal to (i) in the case of the Gold, the greater of the Phase 1 Eligible Gold Ounces and the Phase 2 Eligible Gold Ounces; and (ii) in the case of Silver, the greater of the Phase 1 Eligible Silver Ounces and the Phase 2 Eligible Silver Ounces.
3.9 Borrowing Procedure under the Revolving Credit Facility.
The Borrower may request an Advance under the Revolving Credit Facility by delivering to the Lender a written Borrowing Notice signed by the Borrower, which shall be delivered to the Lender by no later than three Business Days prior to the date of the requested Advance. Each Borrowing Notice shall be irrevocable and shall specify (i) that an Advance under the Revolving Credit Facility is requested by the Borrower, (ii) the date of the requested Advance, (iii) the aggregate principal amount of the Advance to be borrowed, (iv) the specific purposes to which the proceeds of such Advance shall be applied (as permitted by Section 3.3 above) by reference to specific applicable information, (v) for each Batch, the Lender Notice, the Weight and Sampling Certificate (to the extent that it has been prepared) and the Final Settlement Documents (to the extent that they have been prepared), and (vi) such other information and certifications as set forth in the form of Borrowing Notice and as the Lender shall otherwise have reasonably requested. Each submission of a Borrowing Notice by the Borrower to the Lender shall constitute a separate representation, warranty and covenant by the Borrower that (i) no Default has occurred or is continuing or could occur from such Advance; and (ii) it shall use and apply the proceeds of the Advance solely as set forth in such Borrowing Notice. Subject to the terms and conditions hereof, an Advance requested by the Borrower shall be made available by way of wire transfer or other electronic funds transfer of the applicable funds into a Credit Party Account. No Advance shall be advanced if a Default has occurred and is continuing or could result from such Advance.
3.10 Term and Termination of the Revolving Credit Facility.
The term of the Revolving Credit Facility shall commence on the Effective Date and end on the Maturity Date. No Advance under the Revolving Credit Facility may be requested if the payment by the Refiner under Section 3.7 relating to such Advance would fall after the Maturity Date.
3.11 Lender’s Revolving Credit Facility Records.
The Lender shall maintain accounts and records evidencing all Advances made under the Revolving Credit Facility and all payments received hereunder, which accounts and records shall constitute, in the absence of manifest error, prima facie evidence thereof.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
ARTICLE 4
PROCEDURE AND PAYMENTS
| 4.1 |
Payments. | |
| (a) |
On each Repayment Date, the Borrower shall either deliver the Monthly Repayment Ounces (relating to such Repayment Date) to the Lender’s Gold Account; or, if requested by the Lender, pay to the Lender the Cash Payment Amount (relating to such Repayment Date) in which case, the Borrower shall pay the Cash Payment Amount to the Lender within eight (8) days following such Repayment Date, and, provided that such Cash Payment Amount is paid by the Borrower to the Lender within such eight days, then interest shall not accrue during the period commencing on the day following such Repayment Date and ending on the day such payment is made. | |
| (b) |
On each Interest Payment Date, the Borrower shall pay the Lender the Interest Payment Amount relating to the period ending on such Interest Payment Date. | |
| (c) |
The Borrower shall deliver all Monthly Repayment Ounces on or before the date when due, whether on a Repayment Date or by prepayment, by the delivery of physical ounces of Gold to the Lender at the Lender’s Gold Account, except as otherwise expressly provided herein; provided, that the Borrower if requested by the Lender shall pay to the Lender the Cash Payment Amount in Dollars. The Borrower represents and warrants, and covenants and agrees, that all Gold delivered to the Lender as payment of any amount due hereunder shall be owned by the Borrower, with good and marketable title thereto, free and clear of all Liens and adverse claims of any nature or description, and upon delivery to the Lender’s Gold Account, the Borrower shall convey and transfer to the Lender good and marketable title thereto, free and clear of all Liens and adverse claims of any nature or description. The Borrower agrees to convey and properly transfer all legal and beneficial right, interest and title in all Gold delivered to the Lender, and upon each delivery of Gold pursuant to this Agreement, all legal and beneficial right, title and interest in and to such Gold will pass irrevocably from the Borrower to the Lender free and clear of any Liens and adverse claims of any nature or description. All costs, charges or expenses associated with the production, transport, refining, conveyance, transfer and delivery of any Gold by the Borrower to the Lender shall be borne and paid by the Borrower. Until delivery of Gold has occurred in accordance with the terms hereof, all costs of transport, warehousing (including insurance), storage, customs, export and import licenses and Taxes and any other related costs and expenses shall be borne by the Borrower. The Borrower will have and bear all risk of loss of, or damage to, any Gold to be delivered by the Borrower to the Lender pursuant hereto until such Gold has been deposited to the Lender’s Gold Account in accordance with the terms hereof, at which time the risk of loss or damage thereto shall transfer to the Lender. The Lender shall have the right to reject any gold that does not conform to the definition of Gold, as defined herein. Any such rejected gold shall not be considered delivered by the Borrower and the payment amount associated therewith shall not be considered paid by the Borrower. | |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
ARTICLE 5
PREPAYMENTS
| 5.1 |
Mandatory Prepayments. | ||
| (a) |
Each of the Credit Parties covenants and agrees that if at any time (i) the aggregate amount of the Advances outstanding under the Facility is in excess of the Commitment Amount or (ii) the aggregate amount of Advances under the Revolving Credit Facility is in excess of the Revolving Credit Limit, the Borrower shall immediately and without notice or demand pay over the amount of the excess to the Lender as and for a mandatory prepayment. Any such mandatory prepayment being made to prepay the Facility shall be applied to scheduled payments required on the outstanding principal of such Facility in the discretion of the Lender. | ||
| (b) |
The Borrower shall, and shall ensure that each Credit Party shall, prepay the Loan with the following amounts (each, a “Mandatory Prepayment Amount”) and at the following times: | ||
| (i) |
the amount of all Disposal Proceeds (other than Disposal Proceeds generated through a Disposal permitted under Section 9.2(d)), simultaneously upon receipt; and | ||
| (ii) |
the amount of all Insurance Proceeds received by or on behalf of any Credit Party, simultaneously upon receipt, other than Insurance Proceeds which the Borrower indicated to the Lender in writing, has been previously re-invested in replacement assets, and provided that such Insurance Proceeds are actually reinvested in such replacement assets within thirty (30) days of receipt of such proceeds and such replacement assets are subject to perfected liens with the Agreed Priority, failing which, all Advances shall immediately be prepaid in an amount equal to such Insurance Proceeds; | ||
and together with any of the foregoing prepayments of the Loan under (a) or (b) above, the Borrower shall simultaneously pay the Lender any accrued and unpaid interest on any part of the Loan so prepaid together with all other fees, charges and costs and other amounts payable hereunder and on the day any such prepayment is made, the Loan shall be deemed repaid in an amount equal to the product of the Mandatory Prepayment Amount multiplied by the Pre-Milestone or the Post-Milestone Discount, as applicable, (the “Discounted Prepayment Amount”) and, for the purpose of determining the remaining Monthly Repayment Ounces, the remaining Monthly Repayment Figures shall be reduced by the Discounted Prepayment Amount in a manner determined by the Lender, acting reasonably and in its sole discretion. Promptly (and in any event within five Business Days) after such prepayment the Borrower shall deliver to the Lender a revised Schedule 1.1(a) showing the adjusted Monthly Repayment Figures, all in form and substance satisfactory to the Lender.
5.2 Change of Control.
In the event that a Change of Control occurs, the Lender may, in its sole discretion, by written notice to the Borrower, require the Borrower to repay the Loan and all amounts advanced and outstanding under the Revolving Credit Facility in full. If the Lender requires the Borrower to repay the Loan in full, the Borrower shall do so by paying to the Lender an amount in cash equal to the amount arrived at when (i) dividing the Full Prepayment Amount by the product of the Pre-Milestone Discount or the Post-Milestone Discount (as applicable), multiplied by the Spot Price on the Business Day immediately preceding the day the Lender requires such prepayment and (ii) multiplying the result thereof by such Spot Price. If the Lender requires the Borrower to repay the Advances under the Revolving Credit Facility in full, the Borrower shall do so by paying the Lender the amount of all Advances made under the Revolving Credit Facility which remains outstanding, together with the Aggregate Default Revolving Facility Gold and Silver Fee. Together with the foregoing prepayment of the Loan and/or the Revolving Credit Facility, the Borrower shall simultaneously pay the Lender any accrued and unpaid interest on any part of the Loan or the Revolving Credit Facility so prepaid together with all other fees, charges and costs and other amounts payable hereunder. Immediately upon a Change of Control, the Facility and the Revolving Credit Facility (and the Commitment Amount and Revolving Credit Limit) shall automatically be reduced to zero.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| 5.3 |
Voluntary Prepayments of the Loan. | ||
| (a) |
The Borrower may prepay the Loan (in whole or in part) at any time on five (5) Business Days prior written notice to the Lender (each, a “Prepayment Notice”). | ||
| (b) |
The Borrower shall make such prepayment no later than five (5) Business Days following delivery of the Prepayment Notice, together with all other costs, fees, interest payments or charges then due. | ||
| (c) |
Each Prepayment Notice shall be irrevocable and shall state whether the prepayment contemplated therein is for the full amount outstanding hereunder or for a part of the amount outstanding hereunder. In the event such prepayment is a partial prepayment, the Prepayment Notice shall stipulate the amount of such proposed prepayment (the “Partial Prepayment Amount”). In any case, such prepayment shall be made as follows: | ||
| (i) |
if such prepayment is of the entire outstanding amount of (A) the Loan, the Borrower shall pay to the Lender an amount in cash equal to the amount arrived at when (i) dividing the Full Prepayment Amount by the product of the Pre-Milestone Discount or the Post-Milestone Discount (as applicable) multiplied by the Spot Price on the date on which such prepayment is required to be made and (ii) multiplying the result thereof by such Spot Price; and (B) the Revolving Credit Facility, the Borrower shall pay to the Lender an amount in cash equal to the amount of all Advances made under the Revolving Credit Facility which remain outstanding, together with the Aggregate Default Revolving Gold and Silver Facility Fee; and | ||
| (ii) |
if such prepayment is a partial prepayment of the outstanding amount of the Loan, the Borrower shall pay to the Lender an amount in cash equal to the Partial Prepayment Amount, and after such full prepayment, the Facility and the Revolving Credit Facility (and the Commitment Amount and the Revolving Credit Limit) shall automatically be reduced to zero; | ||
|
and together with any of the foregoing prepayments of the Loan under (a) or (b) above, the Borrower shall simultaneously pay the Lender any accrued and unpaid interest on any part of the Loan so prepaid together with all other fees, charges and costs and other amounts payable hereunder. On the day the Partial Prepayment Amount is paid to the Lender, the Loan shall be deemed to be repaid in an amount equal to the product of the Partial Prepayment Amount multiplied by the Pre-Milestone Discount or the Post-Milestone Discount (as applicable) (the“Discounted Partial Prepayment Amount”) and, for the purpose of determining the remaining Monthly Repayment Ounces, the remaining Monthly Repayment Figures shall be reduced by the Discounted Partial Prepayment Amount in manner determined by the Lender acting reasonably and in its sole discretion. Promptly and (in any event, within five Business Days) after such partial prepayment, the Borrower shall deliver to the Lender a revised Schedule 1.1(a) showing the adjusted Monthly Repayment Figures, all in form and substance satisfactory to the Lender. | |||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
ARTICLE 6
PAYMENTS UNDER THIS AGREEMENT.
| 6.1 |
Payments. | |
| (a) |
The Borrower shall make any payment required to be made by it to the Lender without set-off, deduction, withholding, or counterclaim or cross-claim, by: (a) delivering the amount of Gold that is then due to the Lender’s Gold Account or (b) at the request of the Lender in its sole discretion, depositing the Cash Payment Amount or other amount of cash then due (including with respect to each Interest Payment Amount) with the Lender, in each case by not later than 12:00 p.m. (Toronto time) on the date the payment is due, to an account designated by the Lender. | |
| (b) |
Unless otherwise expressly provided in this Agreement, the Lender shall make Advances and other payments to the Borrower under this Agreement by crediting a Credit Party Account (or causing a Credit Party Account to be credited) with the amount of the payment not later than 3:00 p.m. (Toronto time) on the date the payment is to be made. | |
| (c) |
Any prepayment under this Agreement shall be made together with payment of all interest and fees then due and payable and any and all other amounts which may then be due and payable under any other provision hereof. | |
| (d) |
The Lender and the Borrower acknowledge and agree that the payment of all amounts and costs payable hereunder and any further consideration to the Lender is a fair payment based on the business terms of this transaction. | |
| (e) |
Whenever any payment or delivery to be made hereunder shall be stated to be due on a day that is not a Business Day, the payment shall be made on the next succeeding Business Day. | |
| (f) |
Any amount under the Facility prepaid hereunder may not be reborrowed. | |
6.2 Computations of Interest and Fees.
All computations of interest and fees shall be made by the Lender on the basis of a year of 365 days taking into account the actual number of days (including the first day and the last day) occurring in the period for which the fees are payable.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
ARTICLE 7
CONDITIONS OF LENDING
| 7.1 |
Conditions Precedent to Any Advance. | ||
| (a) |
The obligation of the Lender to make any Advance hereunder is subject to the following conditions precedent being satisfied, fulfilled or otherwise met to the satisfaction of the Lender at the time such Advance is requested and made: | ||
| (i) |
the representations and warranties made by the Credit Parties in the Credit Documents or which are contained in any certificate furnished at any time under or in connection herewith, or therewith, shall be true and correct on and as of the date of such Advance as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date; | ||
| (ii) |
no Default or Event of Default shall have occurred and be continuing on such date or after giving effect to such Advance and the Lender has received a certificate of a senior financial officer of the Borrower so certifying to the Lender; | ||
| (iii) |
immediately after giving effect to the making of any such Advance (and the application of the proceeds thereof), the aggregate sum of (a) the First Advance and Second Advance shall not exceed the Commitment Amount; and (b) the Advances made under the Revolving Credit Facility shall not exceed the Revolving Credit Limit; | ||
| (iv) |
there shall not exist any litigation, investigation, bankruptcy or insolvency, injunction, order or claim affecting or relating to any Credit Party or any of its Subsidiaries, or any Mining Property, which has had, or could reasonably be expected to have, a Material Adverse Effect, or which could reasonably be expected to affect the legality, validity or enforceability of this Agreement or any other Credit Document, that has not been settled, dismissed, vacated, discharged or terminated; | ||
| (v) |
no Material Adverse Effect shall have occurred and the Lender has not become aware of any facts which, in the Lender’s opinion acting reasonably, could have a Material Adverse Effect; | ||
| (vi) |
each of the Security Documents has been duly executed and delivered by each party thereto and is in full force and effect enforceable against the Credit Parties, as applicable, in accordance with its respective terms; | ||
| (vii) |
delivery of all discharges, subordination agreements, waivers and confirmations as may be required by the Lender; | ||
| (viii) |
delivery of an irrevocable direction to pay with respect to the Advance; | ||
| (ix) |
all fees (including the Structuring Fee) and all other costs and expenses and other amounts then payable under any of the Credit Documents have been paid in full; | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (x) |
delivery of evidence that (i) the Lender is first loss payee and additional insured under the insurance policies of each of the Credit Parties in respect of the Projects and (ii) such insurance policies are in compliance with Section 9.1(m); | |
| (xi) |
delivery of a solvency certificate from the chief financial officer of Santa Fe in the form of Exhibit D, certifying that none of the Credit Parties (i) is legally prohibited or restricted from entering into and performing its obligations under the Credit Documents to which it is a party, (ii) is unable to pay its debts as they become due in the ordinary course of business, (iii) will be rendered insolvent by virtue of any Advance to be made hereunder, (iv) will be left with an unreasonably small amount of capital or (v) has incurred Debt which cannot be satisfied on a timely basis; | |
| (xii) |
delivery of a certificate of an officer of Santa Fe certifying that all necessary Authorizations relating to the development and operation of the Mining Properties, excluding the Xxxxx Property have been obtained and none have been rescinded, cancelled or otherwise terminated in any respect; | |
| (xiii) |
evidence satisfactory to the Lender confirming the validity of the Security Documents and their application to the Loan and the Revolving Credit Facility and the Obligations as well as the validity and perfection of the Liens granted by such Security Documents with the Agreed Priority; | |
| (xiv) |
the Lender shall have reviewed and approved the use of proceeds from the Advance, as such use of proceeds has been specified by the Borrower in the Borrowing Notice; | |
| (xv) |
all conditions set forth in Section 2.4, Section 2.5 and this Section 7.1 shall have been, and shall remain, satisfied to the satisfaction of the Lender in its sole discretion and the Borrower’s delivery of a Borrowing Notice shall constitute the Borrower’s representation and warranty that all such conditions precedent have been, and remain, satisfied; and |
Each Borrower request for an Advance shall be deemed to constitute a representation and warranty by the Borrower as of the date of such Advance that the applicable conditions in paragraph (a) above, have been and remain satisfied.
| 7.2 |
Conditions Precedent to First Advance | ||
| (a) |
In addition to the satisfaction of the conditions set out in 7.1, the obligation of the Lender to make the First Advance is subject to and conditional upon the following conditions precedent being satisfied, fulfilled or otherwise met to the satisfaction of the Lender at the time each such Advance is requested and made: | ||
| (i) |
the Borrower shall have paid all fees, costs and expenses then payable; | ||
| (ii) |
the first Advance shall be in an amount not exceeding the lesser of (a) $10,000,000 and (b) the Commitment Amount (the “First Advance”); | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (iii) |
execution of an intercreditor agreement between Sandstorm Gold (Barbados) Ltd. and the Lender in form and substance satisfactory to the Lender; | ||
| (iv) |
receipt by Lender of a discharge statement from Victory Park Management, LLC in form and substance satisfactory to the Lender, confirming that upon receipt of payment of the indebtedness owing under the Victory Park Financing Agreement, Victory Park Management, LLC, in its capacity as security agent, shall discharge and release all security which it has over the Borrower, the Credit Parties, the Subsidiaries or any of their respective property; | ||
| (v) |
all principal amounts outstanding under the Senior Secured Convertible Debenture issued to Xxxxxx Holdings Inc. on December 21, 2007 as amended on June 30, 2009 (the “Xxxxxx Debenture”) shall be converted into common shares of the Borrower; | ||
| (vi) |
discharge and release of all security registered against any of the Credit Parties and any of the Subject Properties pursuant to the Xxxxxx Debenture; | ||
| (vii) |
receipt by the Lender of the following documents, each in full force and effect, and in form and substance satisfactory to the Lender: | ||
| (A) |
a Borrowing Notice requesting such Advance duly executed by the Borrower; | ||
| (B) |
all data, reports, maps, surveys, financial statements, Instruments and other information requested by the Lender for its due diligence, including searches of all Lien filings, registrations and records deemed necessary by the Lender, and copies of any documents, filings and Instruments on file in such jurisdictions, shall have been provided, and the Lender shall have completed its technical, legal, financial, permitting, environmental and other due diligence investigation of the Credit Parties and the Mining Properties excluding the Xxxxx Property in scope, and with results, satisfactory to the Lender; | ||
| (C) |
executed copies of the Credit Documents, including this Agreement and the Security Documents, together with any filings or other Instruments for filing or registration or notarization thereof, notices with respect thereto or other Instruments determined by the Lender to be necessary or desirable to establish and perfect the Liens established pursuant to the Security Documents; | ||
| (D) |
certificates of status or other similar type of evidence for the Borrower and the Original Guarantors from all Relevant Jurisdictions; | ||
| (E) |
certified copies of the Constating Documents of the Borrower and the Original Guarantors; | ||
| (F) |
officer certified copies of all Material Contracts; | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (G) |
a certified copy of the directors’ resolutions of the Borrower and the Original Guarantor with respect to the authorization, execution and delivery of the Credit Documents, to which each are a party, being delivered in connection herewith; | |
| (H) |
a certificate of an officer of the Borrower and the Original Guarantor certifying the names and the true signatures of the officers authorized to sign the Credit Documents; | |
| (I) |
satisfactory searches of all mineral rights and other interests of the Borrower and the Original Guarantor in respect of the Mining Properties excluding the Xxxxx Property; | |
| (J) |
opinions of the counsel to the Borrower and the Original Guarantor relating to, among other things, the subsistence of the Borrower and the Original Guarantor, the due authorization, execution, delivery and enforceability of the Credit Documents and the creation, perfection and registration of the Liens under the Security Documents; | |
| (K) |
releases, discharges and postponements (in registrable form where appropriate) covering Liens affecting any of the Secured Assets which are not Permitted Liens, if any; | |
| (L) |
a title opinion of the Borrower’s counsel with respect to the Summit Project dated the Effective Date or such other date as the Lender may require and addressed to the Lender in form and substance reasonably acceptable to the Lender; | |
| (M) |
accurate and complete copies of the most recent financial statements of the Credit Parties; | |
| (N) |
all regulatory approvals to the transactions contemplated within each of the Credit Documents; and | |
| (O) |
such other documents, certificates, opinions and agreements which the Lender may reasonably request; |
| (viii) |
the Lender shall have completed and be satisfied with its financial, business, environmental, tax and other due diligence review of each of the Credit Parties, including, without limitation, its review of feasibility studies, mine plans, budgets, pro forma financial statements and all Material Contracts and other documents in respect of the Projects; | |
| (ix) |
all Authorizations of Governmental Entities, the shareholders of the Borrower, the Original Guarantor and/or other Persons required in connection with this Agreement and the other Credit Documents shall have been obtained and remain in effect; | |
| (x) |
each Credit Party has performed and complied with all agreements and conditions herein and in the other Credit Documents required to be performed and complied with on or prior to the date of the proposed Advance, except those agreements and conditions waived by the Lender; |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (xi) |
evidence that all Liens created pursuant to the Security Documents have been duly perfected and registered in all Relevant Jurisdictions and any other relevant jurisdiction as required by the Lender and the Lender’s Counsel; and | |
| (xii) |
a gold and silver supply agreement (in form and substance satisfactory to the Lender) among the Credit Parties and the Lender, permitting the Lender at its option, to purchase all of the Gold and Silver produced at the Summit Project, shall have been fully executed and delivered to the Lender. Notwithstanding the foregoing, the gold and silver supply agreement shall not apply to any Gold that the Borrower is committed to deliver pursuant to the Sandstorm Gold Supply Agreement, so long as Sandstorm Resources (Barbados) Ltd. exercises its right to purchase such Gold. |
| 7.3 |
Conditions Precedent to Second Advance | ||
| (a) |
In addition to the conditions set out in Section 7.1, the obligation of the Lender to make the Second Advance is subject to and conditional upon the following conditions precedent being satisfied, fulfilled or otherwise met to the satisfaction of the Lender at the time such Advance is requested and made: | ||
| (i) |
the First Advance shall have been made; | ||
| (ii) |
the second Advance shall be in an amount not exceeding the lesser of (a) $10,000,000 and (b) the Commitment Amount (the “Second Advance”); | ||
| (iii) |
the Borrower shall have provided evidence to the satisfaction of the Lender that it has set up a lock-box account with a financial institution of recognized national standing acceptable to the Lender (the “Lock-Box Account”) and that it has deposited no less than $5,000,000 into the Lock-Box Account; | ||
| (iv) |
the Borrower shall have provided evidence to the satisfaction of each of the Lender and Sandstorm Resources (Barbados) Ltd., that it has (i) set up a lock-box account (separate and apart from the Lock-Box Account with a financial institution of recognized national standing (the “Sandstorm Lock- Box Account”) and (ii) that it has deposited no less than $2,000,000 into the Sandstorm Lock-Box Account; | ||
| (v) |
a gold and silver supply agreement (in form and substance satisfactory to the Lender) permitting the Lender at its option, to purchase all of the Gold and Silver produced at the Mogollon Project, (a) shall have been fully executed and delivered to the Lender by Santa Fe and each of the other Credit Parties as necessary and (b) registered on title to the Mogollon Project; | ||
| (vi) |
Columbus Silver Corporation and Columbus Silver (U.S.) Corporation, shall each be a direct or indirect, wholly-owned Subsidiary of Santa Fe and each shall have become an Additional Guarantor and complied with the requirements of Section 9.1(v); and | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (vii) |
the Lender shall have received (a) a title opinion evidencing and confirming that Santa Fe directly or indirectly owns a 100% of the legal and beneficial interest in the Mogollon Project and (b) a first ranking mortgage over the Mogollon Project, (each of (a) and (b) in form and substance satisfactory to the Lender). |
For certainty, the Lender and Borrower each acknowledge that the completion of the conditions precedent set forth in paragraphs (v)(b), (vi)(b) and (vii)(b) above will be satisfied as part of Santa Fe’s acquisition of all the issued and outstanding shares of Columbus Silver Corporation and Columbus Silver (U.S.) Corporation by way of a plan of arrangement. Furthermore, the Lender will advance the Second Advance to Computershare Trust Company of Canada, in its capacity as depositary agent, to be held in escrow and released in accordance with the terms of an escrow agreement amongst, Santa Fe, the Lender, Computershare Trust Company of Canada and Columbus Silver Corporation, in form and substance satisfactory to the Lender.
7.4 Waiver
The conditions in Section 7.1, Section 7.2 and Section 7.3 are inserted for the sole benefit of the Lender and may be waived by the Lender, in whole or in part, with or without conditions, as the Lender may determine in its sole and absolute discretion.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties.
Each of the Credit Parties, for itself and on behalf of each of its Subsidiaries, hereby represents and warrants to the Lender, acknowledging and confirming that the Lender is relying on such representations and warranties without independent inquiry in entering into this Agreement and advancing any Advance that:
| (a) |
Incorporation and Qualification. The Borrower is a corporation duly incorporated, organized and validly existing under the laws of Barbados. Each other Credit Party is a corporation duly incorporated, organized and validly existing under the laws of its jurisdiction of incorporation as set forth in Schedule 8.1(a). Each of the Credit Parties is qualified, licensed or registered to carry on business under the Applicable Laws in all jurisdictions in which such qualification, licensing or registration is necessary. | |
| (b) |
Corporate Power. Each of the Credit Parties has all requisite corporate power and authority to (i) own, lease and operate its properties and assets (including the Mining Properties) and to carry on its business as now being conducted by it and (ii) enter into and perform its obligations under the Credit Documents to which it is a party. | |
| (c) |
Conflict with Other Instruments. The execution and delivery by the Credit Parties and the performance of its obligations under, and compliance with the terms, conditions and provisions of, the Credit Documents to which they are a party, will not (i) conflict with or result in a breach of any of the terms or conditions of (w) its Constating Documents, (x) any Applicable Law, (y) any Instrument or contractual restriction binding on or affecting it or its properties, or (z) any judgment, injunction, determination or award which is binding on it, or (ii) result in, require or permit (x)the imposition of any Lien in, on or with respect to any of its assets or properties (except in favour of the Lender), (y) the acceleration or the maturity of any Debt binding on or affecting any Credit Party, or (z) any third party to terminate or acquire material rights under any Material Contract. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (d) |
Corporate Action, Governmental Approvals, etc. The execution and delivery of each of the Credit Documents by each Credit Party and the performance by each Credit Party of its obligations under the Credit Documents, have been duly authorized by all necessary corporate action including, without limitation, the obtaining of all necessary shareholder consents. No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other Person is or was necessary in connection with the execution, delivery and performance of the obligations under the Credit Documents except as are in full force and effect, unamended, at the date of this Agreement. | |
| (e) |
Execution and Binding Obligation. This Agreement and the other Credit Documents have been duly executed and delivered by each of the Credit Parties which is a party thereto and constitute legal, valid and binding obligations of such Credit Party enforceable against it in accordance with their respective terms, subject only to any limitation under Applicable Laws relating to (i) bankruptcy, insolvency, arrangement or creditors’ rights generally and (ii) the discretion that a court may exercise in the granting of equitable remedies. | |
| (f) |
No Default or Event of Default. No Default or Event of Default has occurred which is continuing. | |
| (g) |
All Authorizations Obtained and Registrations Made. The Security Documents are effective to create in favour of the Lender, legal, valid and perfected Liens in the Agreed Priority in the Collateral and the proceeds thereof enforceable against third parties and any trustee in bankruptcy and/or any other similar official. All Authorizations and registrations necessary or of advantage to permit each Credit Party to (i) execute, deliver and perform each Credit Document to which it is a party, (ii) create senior first priority perfected Liens (enforceable against third parties and any trustee in bankruptcy and/or any other similar official) in the Collateral and the proceeds thereof, (iii) consummate the transactions contemplated by the Credit Documents, (iv) own its undertaking, property and assets and (v) carry on its business (including Authorizations and registrations necessary or of advantage to permit the Credit Parties to carry on the Business), have been obtained or effected and are in full force and effect. Each Credit Party is in compliance with the requirements of all such Authorizations and registrations and there are no investigations or proceedings existing, pending or, to the knowledge of any of the Credit Parties, threatened which could result in the revocation, cancellation, suspension or any adverse modification of any of such Authorizations or registrations. The Security Documents constitute a fully perfected security interest or fixed charge on all right, title and interest of each Credit Party in the assets and/or property described therein as security for the obligations specified therein in each case prior and superior in right to any other Person, with the Agreed Priority, other than Permitted Liens. | |
| (h) |
Compliance with Contracts. The Credit Parties are in compliance with, and have at all times complied with, each of the contractual obligations (including those under each Material Contract) owing by each of them to its customers, suppliers and other Persons. No contract or other Instrument to which a Credit Party is a party in default nor has any counterparty thereto claimed or asserted a default or breach thereof. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (i) |
Material Contracts. Each Material Contract has been duly executed and delivered by each Credit Party and each other Person party thereto and constitutes a legal, valid and binding obligation of such Credit Party and the counterparty thereto enforceable against it in accordance with its respective terms, subject only to any limitation under Applicable Law relating to (i) bankruptcy, insolvency, arrangement or creditors’ rights generally and (ii) the discretion that a court may exercise in the granting of equitable remedies. Each Material Contract is in full force and effect and no material default on the part of any party thereto has occurred thereunder. All Authorizations necessary to permit each party to perform its obligations under each Material Contract and consummate the transactions contemplated thereby are and will continue to be in full force and effect and there are no investigations or proceedings existing, pending or threatened which could result in the revocation, cancellation, suspension or adverse modification of any such Authorization. | ||
| (j) |
Ownership and Use of Property. | ||
| (i) |
Schedule 8.1(j) accurately and completely sets forth and describes all real property owned, held or controlled by the Credit Parties, including all fee interests, patented mining claims, unpatented mining claims, unpatented millsite claims, leases and other real property interests. | ||
| (ii) |
Each of the Credit Parties has good and marketable title to an undivided one hundred percent (100%) of the beneficial and legal interest to all fee lands, patented mining claims, and unpatented mining claims and millsite claims set forth on Schedule 8.1(j), in each case, which title is free and clear of all Liens, subject to Permitted Liens, and is superior and paramount to any adverse claim or right of title which may be asserted. | ||
| (iii) |
With respect to the unpatented mining claims listed on the attached Schedule 8.1(j): (A) the Credit Parties are in exclusive possession thereof, free and clear of all Liens other than Permitted Liens; (B) all such claims were located, staked, filed and recorded on available public domain land in compliance with all Applicable Laws; (C) assessment work, intended in good faith to satisfy the requirements of Applicable Laws and generally regarded in the mining industry as sufficient, for all assessment years was timely and properly performed on or for the benefit of the claims, and affidavits evidencing such work were timely recorded; (D) claim rental and maintenance fees required to be paid under Applicable Law in lieu of the performance of assessment work, in order to maintain the claims have been timely and properly paid, and affidavits or other notices evidencing such payments and required under Applicable Laws have been timely and properly filed and recorded; and (E) there are no actions or administrative or other proceedings pending or, to the best of the Original Guarantors or Borrower’s knowledge, threatened against or affecting any of the claims. | ||
| (iv) |
As to the patented mining claims listed on Schedule 8.1(j): (A) the Credit Parties own an undivided one hundred percent (100%) of the beneficial and legal interest in those claims in each case, free and clear of all Liens except for Permitted Liens; (B) the Credit Parties are in exclusive possession of those claims; and (C) there are no actions or administrative or other proceedings pending or, to the Original Guarantor’s or Borrower’s knowledge, threatened against those claims. | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (v) |
Each Credit Party and each Subsidiary thereof, has good and marketable title to its owned real property and has valid and effective rights to its leased property, free and clear of all Liens, except for Permitted Liens and except as set forth in Schedule 8.1(j)(v). | |
| (vi) |
All Taxes, charges, rates, levies and assessments that, if unpaid, would create a Lien or charge on any Mining Property or any portion thereof, have been paid in full and will be paid in full. | |
| (vii) |
All contractors, subcontractors, agents and other Persons providing services, materials or labour on or for the benefit of any Mining Property have been paid in a timely manner for all work performed or services, goods or labour provided on or with respect thereto, except where such payments are subject to a bona fide dispute, which is being diligently pursued by a Credit Party pursuant to appropriate procedures. | |
| (viii) |
The Security Documents create, or upon their execution and delivery will create, valid and effective Liens in and on the Collateral purported to be covered thereby, which Liens are currently (or will be upon the filing of appropriate Instruments with appropriate Governmental Entities) perfected Liens with the Agreed Priority. |
| (k) |
Ownership of Subject Properties. None of the Borrower or any of the other Credit Parties (i) owns any real property other than the Owned Properties, (ii) is bound by any agreement to own or lease any real property other than the Leases or (iii) has leased any of its Owned Properties. | |
| (l) |
Leased Properties. Other than as set forth in Schedule 8.1(l), each Lease is in good standing and all amounts owing under each Lease have been paid by each Credit Party, as applicable. | |
| (m) |
Work Orders. There are no outstanding work orders, enforcement orders, compliance orders or other similar notices or requirements by or from a Governmental Entity relating to any of the Subject Properties, nor does any of the Credit Parties have notice of any possible impending or future work order, enforcement order, compliance order or other similar notice or requirement. | |
| (n) |
Expropriation. No part of any of the Subject Properties or the Buildings and Fixtures located on the Subject Properties has been subject to an Expropriation Event, no written notice or proceeding in respect of an Expropriation Event has been given or commenced, nor is any Credit Party aware of any intent or proposal to give any such notice or commence any proceedings. | |
| (o) |
Encroachments. The Buildings and Fixtures located at each of the Subject Properties are located entirely within such Subject Property and are in conformity with all Applicable Laws, including zoning, building, and set-back codes and coverage requirements. There are no encroachments upon any of the Subject Properties. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (p) |
Compliance with Laws. Each Credit Party is in material compliance in all respects with all Applicable Laws. Each of the Subject Properties has been used, explored and operated by the Credit Parties in compliance in all respects with all Applicable Laws. | ||
| (q) |
No Default. None of the Credit Parties is in violation of any of its Constating Documents or any shareholders’, partnership, joint venture or similar agreement applicable to it. | ||
| (r) |
No Material Adverse Agreements. None of the Credit Parties is a party to any agreement or instrument or subject to any restriction (including any restriction set forth in its Constating Documents or any shareholders’, partnership, joint venture or similar agreement applicable to it) which has, had or to the best of its knowledge in the future may have, a Material Adverse Effect. | ||
| (s) |
Environmental Compliance. | ||
| (i) |
The Mining Properties have been owned, developed, operated, leased, reclaimed and utilized in compliance in all material respects with all Applicable Laws, including Environmental Laws. | ||
| (ii) |
There are no outstanding or pending consent decrees, clean-up orders, mitigation orders, compliance orders, remediation orders or other orders, decrees, judgments or other administrative or judicial requirements outstanding under any Environmental Law with respect to any Mining Property. | ||
| (iii) |
No Credit Party or any Subsidiary thereof has received any written or actual notice of any violation, alleged violation, non-compliance, investigation, liability or potential liability or request for information, with respect to Environmental Law, Hazardous Material or other environmental matter with regard to any Mining Property, nor does any Credit Party have knowledge or reason to believe that any such notice will be received or is being threatened. | ||
| (iv) |
With respect to the Mining Properties, there have been no past, and there are no pending or threatened, lawsuits, claims, complaints, injunctions, or any other governmental or judicial actions or proceedings with respect to any alleged violation of any Applicable Laws, including Environmental Laws, or any Release or alleged Release of any Hazardous Material. | ||
| (t) |
Pension Plans. None of the Credit Parties maintain any Pension Plan or has any liability or threatened liability under or pursuant to a Pension Plan. | ||
| (u) |
Labour Matters. There are no existing or threatened strikes, lock-outs or other disputes relating to any collective bargaining agreement to which any Credit Party is a party. No Credit Party is subject to, or party to, a collective bargaining agreement with respect to any employees. | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (v) |
Books and Records. All books and records of the Credit Parties have been fully, properly and accurately kept and completed and there are no inaccuracies or discrepancies of any kind contained or reflected therein. Each of the Credit Parties’ books and records and other data and information are available to it in the ordinary course of its business. | ||
| (w) |
Tax Liability. Each of the Credit Parties has filed all tax and information returns which are required to be filed. Each of the Credit Parties has paid all Taxes, interest and penalties, if any, which have become due pursuant to such returns or pursuant to any assessment received by it other than those in respect of which liability based on such returns is being contested in good faith and by appropriate proceedings where adequate reserves, satisfactory to the Lender, have been established in accordance with GAAP. Adequate provision for payment has been made for Taxes not yet due. There are no tax disputes existing or pending involving any of the Credit Parties or the Business. | ||
| (x) |
Corporate Structure. At the date of this Agreement: | ||
| (i) |
Schedule 8.1(x) shows, for each Credit Party, its name, its type of organization, its organizational identification number, if any, its authorized and issued Equity Interests, and the holders of its Equity Interests, and all agreements binding on such holders with respect to their Equity Interests. | ||
| (ii) |
Except as disclosed on Schedule 8.1(x), none of the Credit Parties own any Equity Interests. | ||
| (iii) |
Except as disclosed on Schedule 8.1(x), in the five years preceding the Effective Date, none of the Credit Parties has acquired any substantial assets from any other Person or been party to any merger, amalgamation, reorganization, combination or similar transaction. | ||
| (iv) |
Each Credit Party has good title to all Equity Interests in each Subsidiary of such Credit Party, and all such Equity Interests are duly issued, fully paid and non-assessable. | ||
| (v) |
There are no outstanding warrants, options or other agreements which require or may require the issuance of any Equity Interests of any of the Credit Parties or the issuance of any Debt or securities convertible into Equity Interests of any of the Credit Parties and there are no outstanding debt or securities convertible into Equity Interests of any of the Credit Parties. | ||
| (vi) |
Except as disclosed on Schedule 8.1(x), none of the Credit Parties are, directly or indirectly, a member of, or a partner or participant in, any partnership, joint venture or syndicate. | ||
| (y) |
Subsidiaries, etc. Each of the Credit Parties is a corporation. Except as disclosed on Schedule 8.1(y), none of the shareholders of the Credit Parties are party to any shareholders’, voting or other agreement relating to shares of any of the Credit Parties owned by such shareholder. | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (z) |
Financial Statements. The June 30, 2011, annual consolidated audited financial statements of Santa Fe, copies of which have been furnished to the Lender prior to the date hereof, fairly present the consolidated financial position of the Credit Parties at such date and the consolidated results of the operations and changes in financial position of the Credit Parties for such period, all in accordance with GAAP. | ||
| (aa) |
Debt. No Credit Party has any Debt except Permitted Debt. There exists no default (howsoever described) under the provisions of any Instrument evidencing such Debt or of any agreement relating thereto. | ||
| (bb) |
Insurance. The Credit Parties maintain insurance of types and in amounts which are customarily maintained by other companies applying Prudent Mining Industry Practices, and the Credit Parties otherwise have and maintain insurance for each of its respective businesses and the Mining Properties in compliance with Section 9.1(m). | ||
| (cc) |
No Litigation. Other than as set out in Schedule 8.1(cc), there are no actions, suits or proceedings pending, taken or, to the knowledge of any of the Credit Parties, threatened before or by any Governmental Entity or by or against any elected or appointed public official or Person in any jurisdiction which (i) challenges, or threatens, the validity or propriety of the transactions contemplated under the Credit Documents or the documents, instruments and agreements executed or delivered in connection therewith or related thereto, (ii) alleges the violation of any Applicable Law, (iii) involves any Material Contract, (iv) challenges or threatens the validity of all or any portion of any of the Subject Properties or any Credit Party’s legal interest or claim thereto, or (v) could reasonably be expected to result, either in any case or in the aggregate, in a Material Adverse Effect. | ||
| (dd) |
Schedule Disclosure. At the date of this Agreement: | ||
| (i) |
Schedule 8.1(dd) is a list of all jurisdictions (or registration districts within such jurisdictions) in which each Credit Party (i) has its chief executive office, head office, registered office and chief place of business, (ii) carries on business, (iii) has any account debtors, or (iv) stores any tangible personal property (except for goods in transit in the ordinary course of business). | ||
| (ii) |
Schedule 8.1(dd) is a list of all Authorizations which are material or necessary to any of the Credit Parties, the Business or the ownership, management and operation of any of the Mining Properties. | ||
| (iii) |
Schedule 8.1(dd) is a list of all trademarks, trade names, copyrights and patents (and the registration particulars thereof) which are material or necessary to any the Credit Parties or the Business. | ||
| (iv) |
Schedule 8.1(dd) contains a list of all agreements, contracts or similar Instruments to which a Credit Party is a party or to which any of their property or assets could be subject, for which breach, non-performance, cancellation or failure to renew could have a Material Adverse Effect. | ||
| (v) |
Schedule 8.1(dd) contains a list of all labour agreements to which a Credit Party is a party. | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (vi) |
Schedule 8.1(dd) shows the complete bank account details for each of the Credit Parties. |
| (ee) |
Insolvency. No Credit Party has: | ||
| (i) |
not generally paid its Debts as they become due; | ||
| (ii) |
admitted its inability to pay its Debts generally; | ||
| (iii) |
made a general assignment for the benefit of creditors; | ||
| (iv) |
committed an act of bankruptcy (within the meaning of the Bankruptcy Code (United States), the Bankruptcy and Insolvency Act (Canada) or any similar legislation or Applicable Law); | ||
| (v) |
instituted any proceedings, or had instituted any proceedings against it (x) seeking to adjudicate it a bankrupt or insolvent or (y) seeking liquidation, winding-up, reorganization, compromise, arrangement, adjustment, protection, relief or composition of it or of its Debts under any Applicable Law relating to bankruptcy, insolvency or reorganization or relief of debtors or other similar matters or (z) seeking the appointment of a receiver, manager, receiver and manager, trustee, custodian or other similar official for it or for any part of its undertaking, property or assets; or | ||
| (vi) |
taken any corporate action to authorize any of the actions set forth above in this Section 8.1(ee). |
| (ff) |
No Liabilities. Except as reflected or reserved against in Santa Fe’s audited, consolidated balance sheet and financial statements for the Financial Year ending June 30, 2011, none of the Credit Parties has liabilities or obligations of any nature (whether absolute, accrued, contingent or otherwise) except for current liabilities incurred in the ordinary course since June 30, 2011. | |
| (gg) |
Broker’s Fees. Other than as set out under Schedule 8.1(gg), no broker’s or finder’s fee or commissions will be payable by reason of any action of any of the Credit Parties with respect to any of the transactions contemplated by the Credit Documents. | |
| (hh) |
Counter-Terrorism Regulations and Anti-Money Laundering. Each of the Credit Parties is and shall remain in compliance with all applicable economic sanctions laws and all applicable anti-money laundering and counter-terrorism financing laws, including the provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Criminal Code (Canada), the United Nations Act | |
|
(Canada), the Trading with the Enemy Act , and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B Chapter V, as amended) and any other enabling legislation or executive order relating thereto, the Patriot Act (United States) and other Applicable Laws relating to “know your customer” and anti-money laundering rules and regulation which apply to it. None of the Credit Parties is (i) a Person designated by any Governmental Entity as being on any list set out in the United Nations, Al-Qaida and Taliban Regulations, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism or the Criminal Code (collectively, the “Terrorist Lists”) with which a Person cannot deal with or otherwise engage in business transactions, (ii) a Person who is otherwise the target of the sanctions of any Governmental Entity or (iii) controlled by (including without limitation by virtue of such Person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on any Terrorist List or a foreign government that is the target of economic sanctions of any Governmental Entity such that the entry into, or performance under, this Agreement or any other Credit Document would be prohibited under Applicable Law. No part of the proceeds of any Advance will be used directly or indirectly for any payments to any government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Applicable Law. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (ii) |
No Cease Trade Orders. Other than as set out in Schedule 8.1(ii), no order or ruling suspending the sale or ceasing the trading in any securities of any of the Credit Parties has been issued by any securities regulatory authority or, the best knowledge of the Credit Parties, is pending, contemplated or threatened by any securities regulatory authority. | |
| (jj) |
Affiliate Transactions. The Credit Parties are not conducting, permitting or suffering to be conducted, any transaction with any Affiliate, except as set forth in Schedule 8.1(jj). | |
| (kk) |
Operation of Mining Properties. The Credit Parties have heretofore made available to the Lender all feasibility studies and geological, reserve, resource, metallurgical, engineering and financial data and evaluations of each Mining Property prepared by, or for the benefit of, any Credit Party or otherwise in the possession of any Credit Party. The Credit Parties are not aware of any inaccuracy or omission in such information which has not been disclosed to the Lender in writing. | |
| (ll) |
Project Permits. Except for Authorizations which are to be obtained by a Credit Party from time to time in the ordinary course of business and the absence or delay of which will not interfere with or delay development and operation of a Mining Property, the Credit Parties possess all Authorizations of Governmental Entities which are necessary to develop and operate the Mining Properties (other than the Xxxxx Property) and to undertake and conduct the business of the Credit Parties or any Subsidiary thereof as it is currently being conducted. Each Authorization held by any of the Credit Parties as at the date hereof is identified in Schedule 8.1(ll) hereto (collectively, the “Project Permits”). The Credit Parties have obtained and hold all Project Permits necessary to conduct mining operations at each of the Mining Properties (other than the Xxxxx Property) and all such Project Permits are in full force and effect in accordance with their terms, free of default. All Project Permits necessary to develop, build and operate the Mill and each of the Mining Properties (other than the Xxxxx Property) have been obtained and are in full force and effect in accordance with their terms, free of default, and no written notice alleging a breach or default under any of the Project Permits or challenging or questioning the validity of any such Project Permit has been delivered, except to the extent disclosed to the Lender in Schedule 8.1(ll). The Credit Parties have sufficient, legally-enforceable rights of access, entry and egress to and from the Mining Properties (other than the Xxxxx Property), including rights sufficient to develop and operate the Mining Properties. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (mm) |
Disclosure. All forecasts, projections and other information supplied to the Lender were prepared in good faith and adequately disclose all relevant assumptions, are true and accurate in all respects, and were based on fair assumptions. There is no fact known to any Credit Party which could have a Material Adverse Effect and which has not been fully disclosed to the Lender. None of the representations or warranties made by the Credit Parties in the Credit Documents as of the date such representations and warranties are made or deemed made, and none of the statements contained in any written exhibit, report, statement or certificate furnished by or on behalf of the Credit Parties in connection with the Credit Documents, contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered. | |
| (nn) |
Mineria Sandia S.A. de C.V. Mineria Sandia S.A. de C.V. does not have any assets or property of any value and is not carrying on business of any kind. | |
| (oo) |
Santa Fe Barbados. The Borrower is an International Business Company, in good standing, pursuant to the International Business Companies Act (Barbados). |
8.2 Survival of Representations and Warranties.
The representations and warranties in this Agreement and in any certificates or documents delivered to the Lender in connection therewith shall not merge in or be prejudiced by, and shall survive, any Advance and shall continue in full force and effect so long as any amount is owing by the Borrower to the Lender under this Agreement.
ARTICLE 9
COVENANTS OF THE BORROWER
9.1 Affirmative Covenants.
Until the full and final payment and performance of the Obligations and the termination of this Agreement, the Borrower shall, and (as the case may be) each of the other Credit Parties shall, perform all covenants in this Section 9.1:
| (a) |
Financial Statements, Reports and Other Information. Deliver, or arrange for the delivery, to the Lender: | ||
| (i) |
as soon as practicable and in any event within forty-five (45) days after the end of each Financial Quarter of each Financial Year, (A) the Borrower’s and Original Guarantor’s unaudited quarterly financial statements for the Financial Year to such Financial Quarter, prepared in accordance with GAAP and (B) together with each such delivery of financial statements pursuant to this paragraph, a duly completed and executed Compliance Certificate relating thereto; | ||
| (ii) |
as soon as practicable and in any event within ninety (90) days after the end of each Financial Year, (A) the annual audited consolidated financial statements of the Borrower and the Original Guarantors prepared in accordance with GAAP for such Financial Year and (B) together with each such delivery of financial statements pursuant to this paragraph, a duly completed and executed Compliance Certificate relating thereto; | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (iii) |
as soon as practicable, such other information in the possession of any Credit Party with respect to its financial condition, business and/or operations including copies of all financial statements, proxy statements, material reports and other material disclosure information which any Credit Party shall send or make available to any of its shareholders or which it is required or elects to file with any Governmental Entity; | |
| (iv) |
as soon as practicable but no later than fifteen (15) days after the end of each calendar month, the Credit Parties shall submit to the Lender a written report concerning its business and activities, each of the Projects and the other Mining Properties and all activities and occurrences with respect thereto during the preceding calendar month and shall include a summary description of actions taken with respect to each of the Projects, and the other Mining Properties, a description of actual expenditures (as compared to the budgeted expenditures) and such other data and information requested by the Lender, with such monthly report to be delivered in form and substance acceptable to the Lender. All such reports, descriptions, data and other information provided by the Credit Parties (i) shall be true, complete and accurate in all respects and (ii) shall not contain any material misstatement of fact or omit to state a material fact, and all projections contained in any such reports, certificates, status updates and otherwise shall be based on information which, when delivered, was true, correct and complete in all material respects and shall fairly present such Credit Party’s then current estimate of its future business, operations and affairs; the Credit Parties shall provide the foregoing certification in writing upon delivery of any report, certificate, status update or other information and shall be deemed to have done so to the extent that any Credit Party fails to provide written certification thereof; and | |
| (v) |
promptly after receiving a request from the Lender, such other certificates, reports, status updates, data and information respecting the condition or operations, financial or otherwise, of any Credit Party and any of the Projects as the Lender may from time to time request, with the same to be delivered in form and substance reasonably acceptable to the Lender. All such other certificates, reports, status updates, data and information delivered to the Lender shall be true, complete and accurate in all respects. |
| (b) |
Notice of Litigation. Give notice to the Lender as soon as it becomes aware of the commencement of any action, litigation, proceeding, arbitration, investigation, grievance or dispute affecting any Credit Party, any Mining Property, any Material Contract or any Affairs of a Credit Party, together with copies of the court filings or other documents associated therewith. | |
| (c) |
Notice of Default. Give notice to the Lender as soon as it becomes aware of any Default or Event of Default or any event or circumstance which could have a Material Adverse Effect. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (d) |
Notice of Environmental Matters. Promptly after the filing or receipt thereof, copies of (i) all new Project Permits, together with a description thereof and (ii) all notices with or from any Governmental Entity or any other Person alleging noncompliance with or violation of any Environmental Law or Project Permit and any correspondence in response thereto. | |
| (e) |
Corporate Existence. Preserve and maintain its corporate existence. | |
| (f) |
Compliance with Laws, etc. Comply, and shall cause each of their Subsidiaries, agents and third party contractors to comply with, all Applicable Laws except when any non-compliance would not have a Material Adverse Effect. | |
| (g) |
Comply with Environmental Laws. Own, operate and manage its business and the Mining Properties in compliance with all Applicable Laws, including Environmental Laws, and each Credit Party shall, and shall cause its agents and third party contractors to, (i) manage and operate the Mining Properties and the Business in compliance with all Environmental Laws, (ii) maintain all Authorizations and make all registrations required under all Environmental Laws in relation to the Mining Properties and the Business and remain in compliance therewith, (iii) store, treat, transport, generate, otherwise handle and dispose of all Hazardous Materials and Waste owned, managed or controlled by any of the Credit Parties in compliance with all Environmental Laws and (iv) comply with all recommendations contained in any environmental impact assessment. | |
| (h) |
Conduct of Operations and Maintenance of Properties. Engage solely in the business of developing and operating the Mining Properties, and other prospective mining projects, and in activities incidental thereto, in accordance with Prudent Mining Industry Practices. The Credit Parties shall explore, investigate, develop, mine, operate and use each Mining Property in accordance with Prudent Mining Industry Practices. The Credit Parties shall diligently and continuously work to develop and operate the Mining Properties (excluding the Xxxxx Property). The Credit Parties shall, from time to time, make and cause to be made all repairs, renewals, replacements, additions and improvements to the Mining Properties (excluding the Xxxxx Property) and their properties and assets, such that the Borrower and the other Credit Parties may properly and advantageously conduct the Business at all times in accordance with Prudent Mining Industry Practices. | |
| (i) |
Payment of Taxes and Claims. Pay, or cause to be paid when due, (i) all Taxes, assessments and governmental charges or levies imposed upon it or upon its income, sales, capital or profit or any other property belonging to any of the Credit Parties, and (ii) all claims which, if unpaid, might by Applicable Law become a Lien upon any of the Credit Parties’ property or assets (A) except any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings and in respect of which the Borrower or any of the Credit Parties have established adequate reserves, satisfactory to the Lender, in accordance with GAAP or (B) which are Permitted Liens and which could not, individually or collectively, in the Lender’s opinion, have a Material Adverse Effect. | |
| (j) |
Keeping of Books. Keep proper books of record and account, in which full and correct entries shall be made in respect of its business and shall promptly notify the Lender of any change in accounting practices or procedures implemented by a Credit Party relative to such practices and procedures as of the execution of this Agreement. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (k) |
Updated Banking Information. Promptly notify the Lender of any change in bank location or accounts, and shall at all times ensure that each of its respective bank accounts remain subject to a Credit Party Control Agreement. | |
| (l) |
Rights of Inspection. At any time and from time to time, permit any employee, officer, agent or other representative of the Lender, at the expense of the Borrower, to examine the Mining Properties and make copies of any abstracts from the records and books of account of any Credit Party and to discuss any of its Affairs with any of its directors, officers, employees, agents, representatives or auditors. At any time and from time to time, upon request of the Lender, each Credit Party shall permit a technical engineer selected by the Lender and any officer, agent or other representative of the Lender, at the expense of the Borrower, to inspect the Mining Properties and the Business and discuss any of the Affairs of any Credit Party with any of its personnel and third party contractors. The Borrower shall pay or reimburse the Lender for all costs and expenses of the Lender in connection with each site visit by the Lender or any of its employees, officers, agents, engineers or other representatives in an amount not to exceed $30,000 per quarter, provided that such $30,000 limit shall not apply upon the occurrence of an Event of Default which is continuing. | |
| (m) |
Maintenance of Insurance. Maintain with financially sound and reputable insurance companies (i) insurance on all its property and assets insuring against at least such risks as are usually insured against in the same or a similar business and as required by Applicable Laws and (ii) liability insurance covering at least such risks as are usually insured against in the same or a similar business and as required by Applicable Laws; and furnish to the Lender, upon request, full information as to the insurance carried. The present insurance coverage of the Credit Parties as of the Effective Date is outlined as to carrier, policy number, expiration date, type and amount on Schedule 9.1(m). Upon the request of the Lender from time to time, each Credit Party shall deliver to the Lender evidence of the insurance then in effect, including a detailed list of such insurance containing the information set forth on Schedule 9.1(m). The insurance policies with respect to the Mining Properties shall name the Lender as first loss payee and/or additional insured, as appropriate, and shall contain an endorsement providing that such insurance cannot be terminated or amended without at least thirty days prior notice to the Lender. | |
| (n) |
Authorizations. Obtain and maintain in full force all Authorizations necessary for the exploration, development and production of Gold and Silver at the Mining Properties (other than the Xxxxx Property) and the performance of the Credit Parties’ obligations and perform and observe all covenants, conditions and restrictions contained in, or imposed on it by, any Authorization and/or Material Contract. | |
| (o) |
Material Adverse Effect. Immediately notify the Lender of any event or circumstance that could have a Material Adverse Effect. | |
| (p) |
Deliver Additional Material Contracts and Direct Agreements. Notify the Lender within five (5) Business Days upon the entering into of any new Material Contract and if requested by the Lender deliver (i) a certified copy of each such Material Contract to the Lender within five (5) Business Days of such request and (ii) a Direct Agreement executed by each of the parties to such Material Contract within ten (10) days of such request. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (q) |
Perfection and Protection of Security. Perform, execute and deliver all acts, agreements and other documents as may be requested by the Lender at any time to register, file, signify, publish, perfect, maintain, protect, and enforce the Security or grant a security interest thereon including, without limitation, (i) executing, recording and filing of the Security Documents and financing, change or continuation statements in connection therewith, in form and substance satisfactory to the Lender, (ii) delivering to the Lender the originals of all instruments, documents and chattel paper and all other Collateral of which the Lender determines it should have physical possession in order to perfect and protect the Security, duly endorsed or assigned to the Lender, (iii) delivering to the Lender warehouse receipts covering any portion of the Collateral located in warehouses and for which warehouse receipts are listed, (iv) placing notations on its books of account to disclose the Security, (v) delivering to the Lender all letters of credit on which the Credit Party is named beneficiary and (vi) taking such other steps as are deemed necessary by the Lender to maintain the Security. | |
| (r) |
Credit Party Accounts. Shall establish and maintain the Credit Party’s Accounts as their primary operating accounts, in the location and with the bank or financial institution described on Schedule 9.1(r) and shall not change such accounts without the Lender’s prior written consent. | |
| (s) |
Credit Party Control Agreements. On or before thirty (30) days from the Effective Date, the Credit Parties shall use their commercial best efforts to enter into a Credit Party Control Agreement for each Credit Party Account, in form and substance satisfactory to the Lender. The Lender shall ensure that each Credit Party Account remains subject at all times to a Lien in favour of the Lender as established by the applicable Security Documents and with the Agreed Priority. | |
| (t) |
Additional Security. Promptly upon the request of the Lender, at the cost and expense of the Borrower, the Borrower shall, and shall ensure that each other Credit Party shall, execute, deliver, create and perfect any and all Security which the Lender may require in relation to any assets of any Credit Party, as the Lender may designate, together with all related documents, instruments, registrations and other evidence the Lender may require to ensure that such Security creates a legal, valid and first priority perfected security interest in relation to such assets, enforceable against third parties and any trustee in bankruptcy. | |
| (u) |
Further Assurances. Upon request of the Lender, at the cost and expense of the Borrower, execute and deliver, or cause to be executed and delivered, to the Lender such further Instruments and do and cause to be done such further acts as may be necessary or proper in the opinion of the Lender to carry out more effectively the provisions and purposes of the Credit Documents. | |
| (v) |
Purpose of Credit Facility. Ensure that each Advance shall be used solely for the purposes set out herein and otherwise as set forth in the applicable Borrowing Notice. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (w) |
Additional Guarantors. The Borrower and each other Credit Party shall ensure that on or prior to any Person becoming a Subsidiary of any Credit Party: | ||
| (i) |
such Person shall execute and deliver in favour of the Lender a guarantee of all the obligations of the Credit Parties under this Agreement and all the other Credit Documents; | ||
| (ii) |
such Person shall grant any and all Security as the Lender may require; | ||
| (iii) |
all shares in the capital of such Person are pledged to the Lender (and all original share certificates are delivered to the Lender, duly endorsed in blank or accompanied by a duly executed stock power transfer form) and all directors of such Person have delivered to the Lender resignations duly executed but undated; | ||
| (iv) |
the Lender has received evidence of registration or other perfection of such Security and/or pledge in such jurisdictions as the Lender may require to ensure that such Security and/or pledge creates legal, valid, binding, enforceable and first-priority security interests in the assets or shares to which such Security or pledge relates, enforceable against third parties, trustees in bankruptcy and similar officials; | ||
| (v) |
the Lender has received opinions of the counsel to such Person relating to, among other things, its subsistence, the due authorization, execution, delivery and enforceability of the Credit Documents to which such Person is a party and the creation and perfection of the Liens against such Person under the Security Documents; | ||
| (vi) |
the Lender has received all discharges, subordination agreements, waivers and confirmations as the Lender may require to ensure that all obligations under the Credit Documents are secured by first priority Liens on the property and assets of such Person; and | ||
| (vii) |
the Lender has received such other evidence, certificates and documentation as the Lender may request; | ||
|
in each case, in form and substance satisfactory to the Lender. | |||
| (x) |
Defense of Title and Rights. Each Credit Party shall preserve and defend its ownership of and all right, title and interest in its assets, properties and rights, including each Mining Property, as such title is represented and warranted in Section 8.1(j). Each Credit Party shall defend the Liens in favour of the Lender under the Security Documents, and the Credit Parties shall maintain and preserve such Liens as perfected Liens with their Agreed Priority. Each Credit Party shall ensure that the Security Documents shall at all times cover and extend to all assets, properties, rights and interests of each Credit Party. | ||
| (y) |
Landlord Consents. The Credit Parties shall use their commercial best efforts to deliver to the Lender, within thirty (30) days from the Effective Date, landlord consents, each in form and substance satisfactory to the Lender with respect to each of the Leases listed in Schedule 9.1(y). | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (z) |
Santa Fe Barbados. The Borrower shall at all times remain an International Business Company in good standing, pursuant to the International Business Companies Act (Barbados). | |
| (aa) |
Xxxxxx Debenture. Within ten (10) Business days after the Effective Date, any outstanding interest under the Xxxxxx Debenture shall be repaid in full, such that upon repayment of such interest, no further indebtedness shall at any time be payable under the Xxxxxx Debenture. | |
| (bb) |
Leases. Each Credit Party shall provide the Lender with immediate written notice of any material default under any Lease and shall provide the Lender with the right to cure such default. | |
| (cc) |
Title Opinion – Non-Patented Mining Claims. Within 30 days from the Effective Date, the Borrower shall provide the Lender with a title opinion, in form and substance satisfactory to the Lender with respect to the non-patented mining claims set out in Schedule 9.1(cc). |
9.2 Negative Covenants.
Except with the prior written consent of the Lender (acting in its sole discretion), until the irrevocable, full and final payment and performance of the Obligations and the termination of this Agreement, none of the Borrower or any of the other Credit Parties shall:
| (a) |
Debt. Create, incur, assume or suffer to exist any Debt, other than Permitted Debt. | |
| (b) |
Liens. Create, incur, assume or suffer to exist, any Lien on any of their respective properties or assets, now owned or hereafter acquired, or assign or otherwise convey any right to receive the production, proceeds or income therefrom, other than Permitted Liens. Notwithstanding the foregoing, if a Credit Party shall xxxxx x Xxxx on any of its properties or assets in violation of this Section 9.2(b), then it shall be deemed to have simultaneously granted an equal and rateable Lien on any such properties or assets to and in favour of the Lender, to the extent that such a Lien has not already been granted to the Lender. | |
| (c) |
Mergers, Etc. Enter into any reorganization, consolidation, amalgamation, arrangement, winding-up, merger or other similar transaction or convey, lease or Dispose of all or substantially all of its assets or convey, lease or Dispose of all or any part of any Mining Property, other than the acquisition of the Columbus Silver Corporation pursuant to Section 7.3(a). | |
| (d) |
Disposal of Assets Generally. Dispose of any property or asset (including, without limitation, any securities other than a disposal resulting from securities being issued directly from such Credit Party’s treasury) other than (i) bona fide sales of inventory, in the ordinary course of business for the purpose of carrying on the Business and at fair market value, (ii) the sale of any asset (other than securities) which has no material economic value in the Business and is obsolete provided the fair market value of such asset does not exceed, when aggregated with the fair market value of all other assets sold in reliance on this Section 9.2(d), $500,000, (iii) any Disposal to an arms’ length person to the extent the related Disposal Proceeds are applied in prepayment of the Advances as contemplated under Article 5, and (iv) the disposal of Gold made in accordance with the terms of the Sandstorm Gold Supply Agreement (in the form as at the date hereof, unamended). |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (e) |
Transactions with Related Parties. Directly or indirectly enter into any agreement with, make any financial accommodation for, or otherwise enter into any transaction with, a Related Party other than the Permitted Related Party Transactions. | |
| (f) |
Change in Business. Make any change in the nature of the Business. | |
| (g) |
Distributions. Other than to the Borrower, declare, make or pay any Distribution. For purposes of this Section 9.2(g), “Distribution” includes with respect to any Person (i) any dividend or other distribution on issued shares or any other Equity Interest of the Person or any of its Subsidiaries, (ii) any purchase, redemption or retirement of any issued share, warrant or other Equity Interest or any other option or right to acquire any share or other Equity Interest of the Person or any of its Subsidiaries or (iii) any payment whether as consulting fees, management fees or otherwise to any Related Party of the Person or any of its Subsidiaries. | |
| (h) |
Financial Assistance. Provide any Financial Assistance to any Person. For the purposes of this Section 9.2(h), “Financial Assistance” includes any advances, loans or other extensions of credit, guarantees, indemnities, financial accommodations or other contingent liabilities in the nature of a guarantee or indemnity or capital contributions. | |
| (i) |
Acquisitions. Purchase any shares, stocks, bonds, notes, debentures, securities or other Equity Interests of any Person other than such Equity Interests which such Credit Party owns as of the date hereof and disclosed on Schedule 9.2(i) hereto, or acquire the undertaking of, or all or substantially all the assets of, any other Person, other than the acquisition of Columbus Silver Corporation as contemplated in Section 7.3(a). | |
| (j) |
Hedging. Enter into any Hedging Agreement on a margined or collateralized basis or of a speculative nature. | |
| (k) |
Business. Carry on the Business otherwise than through the Borrower or any Credit Party. | |
| (l) |
Charter Documents. Amend or modify its Constating Documents (or equivalent charter documents). | |
| (m) |
Change to Material Contracts. Terminate, waive or make any amendment to, or assign any interest, in any Material Contract, except with the prior written consent of the Lender. | |
| (n) |
Burdens on Production. Grant, sell, transfer, assign or convey, directly or indirectly, to any Person any royalty (of any kind or nature whatsoever, howsoever designated), production payment or other interest in any Mining Property, other than to the Lender, other than any royalty, production payment granted prior to the Effective Date. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (o) |
Limitation on the Issuance of Shares. Other than Santa Fe, sell, transfer or issue, and the Credit Parties shall cause each Subsidiary to not sell, transfer or issue, any Equity Interest. | |
| (p) |
Prepayment of Debt. Directly or indirectly, voluntarily or involuntarily, purchase, redeem, defease or repay or prepay any principal, interest or any other amount in relation to any Debt, other than to Santa Fe, except with the prior written consent of the Lender. | |
| (q) |
Lockbox Account. Withdraw funds from the Lock-Box Account (i) until completion of the Milestones in a manner satisfactory to the Lender; and (ii) for any purpose other than to make payments under the Loan, except with the prior written consent of the Lender. | |
| (r) |
Sandstorm Lockbox Account. Withdraw funds from the Sandstorm Lock-Box Account. | |
| (s) |
Mineria Sandia S.A. de C.V. Permit Mineria Sandia S.A. de C.V. to carry on any business or obtain any assets or property of any value without first becoming an Additional Guarantor and complying with the requirements set out in 9.1(w). |
ARTICLE 10
EVENTS OF DEFAULT
10.1 Events of Default.
The occurrence of any of the following events shall constitute an “Event of Default” under this Agreement:
| (a) |
Non-Payment. A Credit Party fails to make payment of any Obligation (whether for principal, interest, costs, fees, expenses or any other amount due hereunder or under any other Credit Document) when due and payable pursuant to any of the terms of a Credit Document (whether on a payment date, by prepayment, on demand or otherwise); | ||
| (b) |
Misrepresentation. Any representation or warranty or certification made or deemed to be made by a Credit Party or any of its respective directors or officers in any Credit Document shall prove to have been incorrect, incomplete or misleading in any respect when made or deemed to be made; | ||
| (c) |
Breach of Covenants. A Credit Party fails to perform, observe or comply with: | ||
| (i) |
any of the covenants or any other provision or obligation contained in Section 9.1(v), Section 9.1(w), Section 9.1(x), Section 9.1(z), Section 9.1(aa), Section 9.1(bb) and Section 9.2; or | ||
| (ii) |
any other covenant or any other provision or obligation contained in any Credit Document to which it is a party and such failure is not capable of being remedied or, if capable of being remedied, continues for a period of five (5) Business Days, provided in such case the Credit Party is proceeding diligently to remedy such failure and the Lender is not prejudiced thereby; | ||
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (d) |
Cross-Default. A Credit Party (or any Subsidiary of any Credit Party) fails to pay the principal of, premium, if any, interest on, or any other amount relating to, any of its Debt, the principal of which Debt exceeds $100,000 (or the equivalent amount in any other currency) when such amount becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise); or any other event occurs or condition exists if its effect is to accelerate, or permit the acceleration of such Debt; or any such Debt shall be (or may be) declared to be due and payable prior to its stated maturity; | |
| (e) |
Material Contracts. A Credit Party fails to perform or observe any material term, covenant or agreement contained in any Material Contract on its part to be performed or observed; or any Material Contract is amended without the prior written consent of the Lender and such amendment could have a Material Adverse Effect; or any Material Contract is terminated or revoked or permitted to lapse (other than in accordance with its terms and not as a result of default); or any party to any Material Contract delivers a notice of termination or revocation in respect of such Material Contract and such Material Contract is subsequently terminated or revoked; | |
| (f) |
Judgments. Any judgment or order for the payment of money in excess of $250,000 (or the equivalent amount in any other currency) is rendered against a Credit Party (or any Subsidiary of any Credit Party) and either (i) enforcement proceedings have been commenced by a creditor upon the judgment or order or (ii) there is any period of ten (10) consecutive days during which a stay of enforcement of the judgment or order, by reason of a pending appeal or otherwise, is not in effect; | |
| (g) |
Bankruptcy; Insolvency. (i) Any Credit Party (or any Subsidiary of any Credit Party) shall initiate or commence any case, proceeding or other action (A) under any existing or future federal, provincial or state or other Applicable Law relating to bankruptcy, insolvency, reorganization or relief of debtors, or otherwise seeking to have it judged bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts or (B) seeking the appointment of a receiver, receiver- manager, liquidator, assignee, trustee, sequestrator, administrator, conservator or other similar official of any Credit Party (or any Subsidiary of any Credit Party), for it or for all or any part of its assets, or any Credit Party (or any Subsidiary of any Credit Party) shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Credit Party any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of thirty (30) days; or (iii) there shall be commenced against any Credit Party (or any Subsidiary of any Credit Party) any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any part of their assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within fifteen (15) days from the entry thereof; or (iv) any Credit Party (or any Subsidiary of any Credit Party) shall take any action in furtherance of, or indicating its consent to, approval of, authorization of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; (v) any Credit Party (or any Subsidiary of any Credit Party) generally shall not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due or (vi) any Credit Party (or any Subsidiary of any Credit Party) has ceased to make payment of its liabilities or the value of its assets shall be less than the aggregate of its liabilities due and accruing due; |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (h) |
Dissolution. Any application is made for, or order, judgment or decree is entered against any Credit Party decreeing, the winding-up, dissolution or bankruptcy, insolvency, reorganization, or any similar process of such Credit Party and, in the case of an application, such application remains undischarged or unstayed for any period or a resolution is passed for the winding-up, dissolution or liquidation of any of the Credit Parties (or any Subsidiary of any Credit Party); | |
| (i) |
Security Imperilled. Any Credit Document is declared by a court or tribunal of competent jurisdiction to be void, invalid, illegal or unenforceable or the validity, legality or enforceability thereof is contested by any Credit Party or any other Person party thereto (other than the Lender), or any Credit Party or any other Person party thereto denies that it has any or further obligations thereunder; | |
| (j) |
Agreed Priority of Collateral. If any one or more of the Credit Documents ceases to be in full force and effect or any Lien in the Collateral created by any Security Document is no longer effective to create in favour of the Lender, a legal, valid and perfected Lien in the Collateral with the Agreed Priority; | |
| (k) |
Change of Control. A Change of Control occurs; | |
| (l) |
Material Adverse Effect. Any event, circumstance or condition which could reasonably be expected to have a Material Adverse Effect has occurred; | |
| (m) |
Expropriation/Condemnation. An Expropriation Event shall have occurred; | |
| (n) |
Regulatory Action. Any Governmental Entity shall take or attempt to take any action with respect to a Credit Party, or with respect to any Mining Property or any Collateral subject to the Security Documents, which has, had or could reasonably be expected to have a Material Adverse Effect on a Credit Party or the ability of the Borrower or any other Credit Party to satisfy its Obligations in a timely manner unless such action is set aside, dismissed or withdrawn within five (5) days of its institution or such action is being contested in good faith, its effect is stayed during such contest, the Credit Parties are allowed to continue the development and operation of each Mining Property during such period, and the same would not be expected to have a Material Adverse Effect; | |
| (o) |
Cessation of Project Operations. Without the prior written consent of the Lender, any material Mining Property (other than the Xxxxx Property), or any portion thereof, shall be abandoned or terminated, or exploration, development or operation of the Projects or any other material Mining Property (other than the Xxxxx Property), shall be terminated or reduced materially; or | |
| (p) |
Financial Statements. The audited financial statements of any Credit Party (or any Subsidiary of any Credit Party) are qualified in any respect by such Credit Party’s or such Subsidiary’s independent auditors. For certainty, a qualification from an independent auditor that the Credit Party may not be able to remain a going concern due to a working capital deficit, shall not constitute an Event of Default. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
10.2 Acceleration.
Upon the occurrence of an Event of Default which is continuing, the Lender may declare its commitment to advance any part of the Facility or the Revolving Credit Facility to be terminated, whereupon the same shall forthwith terminate but such termination shall not limit or affect any rights or remedies of the Lender hereunder; and the Lender may require the Borrower to repay; (i) the Loan in full by paying to the Lender an amount in cash equal to the Full Prepayment Amount divided by the product of the Pre-Milestone Discount or the Post-Milestone Discount (as applicable) multiplied by the Spot Price on the day the Lender requires such prepayment and multiplying the result thereof by such Spot Price and; (ii) the Revolving Credit Facility in full by paying to the Lender all amounts advanced and outstanding under the Revolving Credit Facility and the Aggregate Default Revolving Gold and Silver Facility Fee. Together with the repayment of the amounts set out in (i) and (ii) above, the Borrower shall simultaneously pay the Lender any accrued and unpaid interest together with all other fees including the Revolving Credit Gold Fee, charges and costs and other amounts payable hereunder and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower.
| 10.3 |
Remedies. | |
| (a) |
Upon the occurrence of an Event of Default, the Lender may commence such legal action and proceedings and exercise all rights and remedies available to it under the Credit Documents and/or Applicable Law which in its sole discretion it deems appropriate or expedient including, the commencement of foreclosure and enforcement proceedings under the Credit Documents, all without any additional notice, presentation, demand, protest, notice of dishonour, entering into of possession of any property or assets, or any other action or notice, all of which are expressly waived by each Credit Party. Upon the occurrence of an Event of Default, the Lender shall have, and may exercise, all of its rights and remedies under this Agreement and the other Credit Documents as well as all other rights and remedies available at law or in equity. | |
| (b) |
The rights and remedies of the Lender under the Credit Documents are cumulative and are in addition to, and not in substitution for, any other rights or remedies, and no right or remedy contained herein or in any other Credit Document, or otherwise at law or in equity, is intended to be exclusive. Nothing contained in the Credit Documents with respect to the liability of the Credit Parties to the Lender, nor any act or omission of the Lender with respect to the Credit Documents or its rights or remedies, shall in any way prejudice, impair, limit or otherwise affect the rights, remedies and powers of the Lender under the Credit Documents or otherwise. | |
ARTICLE 11
MISCELLANEOUS
11.1 Amendments, etc.
No amendment or waiver of any provision of any of the Credit Documents, nor consent to any departure by any Credit Party or any other Person from such provisions, is effective unless in writing and approved by the Lender. Any amendment, waiver or consent is effective only in the specific instance and for the specific purpose for which it was given.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| 11.2 |
Waiver. | |
| (a) |
No failure on the part of the Lender to exercise, and no delay in exercising, any right under any of the Credit Documents shall operate as a waiver of such right; nor shall any single or partial exercise of any right under any of the Credit Documents preclude any other or further exercise of such right or the exercise of any other right. | |
| (b) |
Except as otherwise expressly provided in this Agreement, the covenants, representations and warranties shall not merge on and shall survive each Advance and, notwithstanding any such Advance or any investigation made by or on behalf of any party, shall continue in full force and effect. | |
11.3 Evidence of Debt and Borrowing Notices.
The indebtedness of the Borrower resulting from the Advances shall be evidenced by the records of the Lender, which shall constitute prima facie evidence of such indebtedness.
11.4 Notices, etc.
Any notice, direction or other communication to be given under this Agreement shall, except as otherwise permitted, be in writing and given by delivering it or sending it by facsimile or other similar form of recorded communication addressed:
| (a) |
to any Credit Party at: | |
|
Santa Fe Gold (Barbados) Corporation |
|
Attention: X. Xxxxxx Xxxxxx | ||
|
0000 Xxxxxxxxxxxx X.X., Xxxxx 000 | ||
|
Telephone:
(000) 000-0000
| ||
|
Email: xxxxxxxxxxxxx@xxx.xxx | ||
| (b) |
to the Lender at: | |
|
Waterton Global Value, L.P. | ||
|
Attention:
Xxxxx Xxxxx
|
Any such communication shall be deemed to have been validly and effectively given if (i) personally delivered, on the date of such delivery if such date is a Business Day and such delivery was made prior to 4:00 p.m. (Toronto time), otherwise on the next Business Day or (ii) transmitted by facsimile, electronic mail or similar means of recorded communication on the Business Day following the date of transmission. Any party may change its address for service from time to time by notice given in accordance with the foregoing and any subsequent notice shall be sent to the party at its changed address.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| 11.5 |
Costs, Expenses General Indemnity and Environmental Indemnity. | |
| (a) |
Each Credit Party shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and defend and hold the Lender, the Lender’s Affiliates and their respective directors, partners, managers, members, owners, principals, shareholders, officers, employees, agents, consultants and representatives (each an “Indemnified Person”) harmless from, and shall pay to such Indemnified Person promptly (and in any event within five (5) Business Days of demand) all amounts required to compensate the Indemnified Person for, any cost, expense, liability, obligation, loss, damage, penalty, action, judgment, fine, suit, charge, claim, taxes, payments or disbursements of any kind or nature whatsoever, including attorneys fees and expenses imposed on, incurred by, suffered by or asserted against, the Indemnified Person as a result of, connected with or arising out of (i) the preparation, execution and delivery of, preservation of rights under, enforcement of, or refinancing, renegotiation or restructuring of, any present or future Credit Document and any related amendment, waiver or consent, as well as the consummation of the transactions contemplated thereby, (ii) any advice of counsel as to the rights and duties of the Lender with respect to the administration of the Credit Documents or any transaction contemplated under the Credit Documents, (iii) any default (whether or not constituting a Default or an Event of Default) by a Credit Party, (iv) any proceedings brought by or against the Indemnified Person, or in which the Indemnified Person otherwise participates, due to its entering into or being a party to any of the Credit Documents, or by reason of its exercising or performing, or causing the exercise or performance of, any right, power or obligation under any of the Credit Documents or otherwise in connection with its interest in any Security, whether or not such proceedings are directly related to the enforcement of any Credit Document and (v) the ownership, management, administration or operation of any Mining Property, except in each case to the extent directly caused by the gross negligence or wilful misconduct of the Indemnified Person. | |
| (b) |
Each Credit Party shall, whether or not the transactions contemplated in this Agreement are completed, indemnify and hold harmless and agrees to defend the Indemnified Persons against any cost, expense, liability, obligation, loss, damage, penalty, action, judgment, fine, suit, charge, claim, taxes, payments or disbursements of any kind or nature whatsoever (including strict liability and including costs and expenses of investigation, abatement and remediation and monitoring of spills or Releases or threatened Releases of Hazardous Materials or other Contaminants, and including liabilities of the Indemnified Persons to third parties (including Governmental Entities) in respect of bodily injuries, property damage, damage to or impairment of the environment or any other injury or damage and including liabilities of the Indemnified Persons to third parties for the third parties' foreseeable and unforeseeable consequential damages) incurred as a result of or in connection with the administration or enforcement of this Agreement or any other Credit Document, including the exercise by the Lender of any rights hereunder or under any of the other Credit Documents, which result from or relate, directly or indirectly, to: | |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (i) |
the presence, Release or threatened Release of any Hazardous Material or other Contaminants, by any means or for any reason, whether or not such presence, Release or threatened Release of Hazardous Materials or other Contaminants was under the control, care or management of a Credit Party or of a previous owner, operator, tenant or other Person; | |
| (ii) |
any Release, presence, use, creation, transportation, storage or disposal of any Hazardous Material or Contaminant on or with respect to the Subject Property or the business, operations or activities of any Credit Party; | |
| (iii) |
any claim or order for any clean-up, restoration, detoxification, reclamation, repair or other securing or remedial action which relates to any Subject Property or the business, operations or activities of any Credit Party; | |
| (iv) |
any Environmental Claim with respect to any Subject Property or any Credit Party; or | |
| (v) |
the breach or violation or alleged breach or violation of any Environmental Laws by a Credit Party. |
|
For purposes of this Section, “liability” shall include (a) liability of an Indemnified Person for costs and expenses of abatement and remediation of spills and releases of Contaminants where such abatement and remediation is prudent for the continued operation of the Business or required by Environmental Laws and to the extent required to maintain the value and use of the Collateral, (b) liability of an Indemnified Person to a third party to reimburse the third party for bodily injuries, property damages and other injuries or damages which the third party suffers, including (to the extent, if any, that the Indemnified Person is liable therefor) foreseeable and unforeseeable consequential damages suffered by the third party, (c) liability of the Indemnified Person for damage suffered by the third party, (d) liability of an Indemnified Person for damage to or impairment of the environment and (e) liability of an Indemnified Person for court costs, expenses of alternative dispute resolution proceedings, and fees and disbursements of expert consultants and legal counsel on a solicitor and own client basis. | ||
| (c) |
If, with respect to the Lender, (i) any change in any law, rule, regulation, judgment or order or any change in the interpretation, application or administration of such law, rule, regulation, judgment or order, occurring or becoming effective after this date, or (ii) compliance by the Lender with any direction, request or requirement (whether or not having the force of law) of any Governmental Entity made or becoming effective after the date hereof, has the effect of causing any loss to the Lender or reducing the Lender’s rate of return by (w) increasing the cost to the Lender of performing its obligations under any of the Credit Documents (including the costs of maintaining any capital, reserve or special deposit requirements), (x) requiring the Lender to maintain or allocate any capital or additional capital or affecting its allocation of capital in respect of its obligations under any of the Credit Documents, (y) reducing any amount payable to the Lender under any of the Credit Documents or (z) causing the Lender to make any payment or to forego any return on, or calculated by reference to, any amount received or receivable by the Lender under the Credit Documents, then the Lender may give notice to the Borrower specifying the nature of the event giving rise to the loss and the Borrower shall, on demand, pay such amounts as the Lender specifies are necessary to compensate it for any such loss. A certificate as to the amount of any such loss submitted in good faith by the Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error. |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (d) |
Each Credit Party shall pay to the Lender on demand any amounts required to compensate the Lender for any loss suffered or incurred by it as a result of (i) any payment being made in respect of an Advance, (ii) the failure of the Borrower to give any notice in the manner and at the times required by this Agreement, (iii) the failure of the Borrower to effect an Advance in the manner and at the time specified in any Borrowing Notice or (iv) the failure of the Borrower to make a payment or a mandatory repayment in the manner and at the time specified in this Agreement. A certificate as to the amount of any loss submitted in good faith by the Lender to the Borrower shall be conclusive and binding for all purposes, absent manifest error. | |
| (e) |
The provisions of this Section 11.5 shall survive the termination of this Agreement and the repayment of all Obligations. Each Credit Party acknowledges that neither its obligation to indemnify nor any actual indemnification by it of the Lender or any other Indemnified Person in respect of such Person’s losses for the legal fees and expenses shall in any way affect the confidentiality or privilege relating to any information communicated by such Person to its counsel. |
11.6 Release.
Upon irrevocable and indefeasible repayment and performance in full of the Obligations, including all indebtedness, obligations and liabilities (direct or indirect, absolute or contingent, matured or not, solely or jointly) of each of the Credit Parties incurred under or in connection with this Agreement and/or any other Credit Documents and the irrevocable payment to the Lender of all costs, charges, expenses and legal fees and disbursements (on a solicitor and his own client basis) incurred by the Lender in connection with the Security, each of the Credit Parties shall be entitled to a release and discharge of the Security constituted by the Security Documents, other than obligations and/or liabilities that have accrued prior to the date of such release or any other obligation which is expressly stated to survive the termination of the Security Documents, provided that the Lender no longer has any obligations (contingent or otherwise) under or in connection with this Agreement or any other Credit Document.
| 11.7 |
Taxes and Other Taxes. | |
| (a) |
Lender is free to arrange its tax affairs in whatever manner it deems fit (in its sole and absolute discretion including, funding any Advance through a special purpose vehicle) and in particular, the Lender shall not be under any obligation to claim relief from its corporate profits or similar tax liability in respect of any deduction or withholding in priority to any other relief, claims, credits or deductions available to it and the Lender shall not be obligated to disclose to the Borrower any information regarding its tax affairs, tax computations or otherwise. | |
| (b) |
The Lender, at its discretion, shall be entitled to allocate any amounts and costs which it receives hereunder to principal, interest, fees, charges and other similar payments. | |
| (c) |
The provisions of this Section 11.7 shall survive the termination of the Agreement and the repayment of all Obligations. | |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| 11.8 |
Successors and Assigns. | |
| (a) |
None of the Credit Parties shall have the right to assign or transfer any of its rights or obligations under this Agreement or any interest in this Agreement without the prior written consent of the Lender, which consent may be unreasonably withheld. | |
| (b) |
The Lender may assign or transfer any of its rights, interests or obligations (in whole or in part) under this Agreement and any other Credit Document (i) to any Affiliate of the Lender without the consent of, or notice to, any Credit Party or (ii) to any other Person with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed). If any consent is requested and no response is received by the Lender within five (5) days of such request, the Borrower shall be deemed to have given its consent. In the case of any such assignment or transfer authorized under this Section 11.8, the assignee or transferee (as the case may be) shall have, to the extent of such assignment or transfer, the same rights, benefits and obligations as it would if it were the Lender hereunder and the Lender shall be relieved of its obligations hereunder with respect to the commitments assigned or transferred; provided that an assignee or transferee (as the case may be) shall not be entitled to receive any greater payment under any provision of any Credit Document than the Lender would have been entitled to receive. Each of the Credit Parties hereby acknowledges and agrees that any assignment or transfer will give rise to a direct obligation of the Credit Parties to such assignee or transferee (as the case may be) and that such assignee or transferee (as the case may be) shall be considered to be the “Lender” hereunder. The Lender may furnish any information concerning the Credit Parties in its possession from time to time to assignees and transferees provided that any such assignee or transferee agrees to maintain the confidentiality of such information. | |
| (c) |
The Credit Parties shall provide such certificates, acknowledgments and further assurances in respect of this Agreement and the Credit Documents as the Lender may reasonably require in connection with any assignment pursuant to this Section 11.8. | |
| (d) |
Any assignment pursuant to this Section 11.8 will not constitute a repayment by the Borrower to the Lender of any Advance or a new Advance to the Borrower by the Lender or by the assignee, as the case may be, and the parties acknowledge that each Credit Party’s obligations with respect to any such Advances will continue and will not constitute new obligations. | |
11.9 Right of Set-off.
Upon the occurrence and during the continuance of any Event of Default, the Lender is authorized at any time and from time to time, to the fullest extent permitted by law (including general principles of common-law), to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by it to or for the credit or the account of any Credit Party against any and all of the obligations of any Credit Party under any of the Credit Documents, irrespective of whether or not the Lender has made demand under any of the Credit Documents and although such obligations may be unmatured or contingent. If an obligation is unascertained, the Lender may, in good faith, estimate the obligation and exercise its right of set-off in respect of the estimate, subject to providing the applicable Credit Party with an accounting when the obligation is finally determined. The Lender shall promptly notify the applicable Credit Party after any set off and application is made by it, provided that the failure to give notice shall not affect the validity of the set off and application. The rights of the Lender under this Section 11.9 are in addition to any other rights and remedies (including all other rights of set-off) which the Lender may have.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| 11.10 |
Judgment Currency. | |
| (a) |
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due to the Lender in any currency (the “Original Currency”) into another currency (the “Other Currency”), the parties agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures, the Lender could purchase the Original Currency with the Other Currency on the Business Day preceding the day on which final judgment is given or, if permitted by Applicable Law, on the day on which the judgment is paid or satisfied. | |
| (b) |
The obligations of the Credit Parties in respect of any sum due in the Original Currency from it to the Lender under any of the Credit Documents shall, notwithstanding any judgment in any Other Currency, be discharged only to the extent that on the Business Day following receipt by the Lender of any sum adjudged to be so due in the Other Currency, the Lender may, in accordance with normal banking procedures, purchase the Original Currency with such Other Currency. If the amount of the Original Currency so purchased is less than the sum originally due to the Lender in the Original Currency, the Credit Parties agree, as a separate obligation and notwithstanding the judgment, to indemnify the Lender, against any loss, and, if the amount of the Original Currency so purchased exceeds the sum originally due to the Lender in the Original Currency, the Lender shall remit such excess to the applicable Credit Parties. | |
| 11.11 |
Interest on Amounts. | |
Except as may be expressly provided otherwise in this Agreement, all amounts owed by the Credit Parties to the Lender (including interest), which are not paid when due (whether at stated maturity, on demand, by acceleration or otherwise) shall bear interest (both before and after default and judgment), from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times to the Interest Rate plus 5%.
| 11.12 |
Governing Law and Waiver of Jury Trial. | |
| (a) |
This Agreement shall be governed by, construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. The parties hereby irrevocably attorn to the non-exclusive jurisdiction of the Courts of the Province of Ontario in the city of Toronto. Each party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any Court of the Province of Ontario. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, any forum non conveniens defence to the maintenance of such action or proceeding in any such court. | |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (b) |
Each of the Credit Parties hereby irrevocably consents to the service of any and all process in any such action or proceeding by the delivery of copies of such process to the Borrower at its address set out in Section 11.4(a) Nothing in this Section 11.12 affects the right of the Lender to serve process in any manner permitted by Applicable Law. | |
| (c) |
Each of the parties to this Agreement hereby irrevocably waives all right to a trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement, the other Credit Documents or the transactions contemplated hereby or thereby. The scope of this waiver is intended to be all-encompassing with respect to any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each of the parties hereto (a) acknowledges that this waiver is a material inducement for the parties to the Credit Documents to enter into a business relationship, that the parties to the Credit Documents have already relied on this waiver in entering into same and the transactions that are the subject thereof and that they will continue to rely on this waiver in their related future dealings and (b) warrants and represents that each has reviewed this waiver with its legal counsel and that each knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. This waiver is irrevocable and may not be modified either orally or in writing, and this waiver shall apply to any subsequent amendments, modifications, supplements, extensions, renewals and/or replacements of this Agreement. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. |
11.13 Counterparts
This Agreement and any amendments, waivers, consents, or supplements may be executed in any number of counterparts in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which counterparts together shall constitute one and the same instrument. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties. This Agreement may be validly executed and delivered by facsimile, portable document format (.pdf) or other electronic transmission, and delivery of an executed counterpart of a signature page to this Agreement, any amendment, waiver, consent or supplement, or to any other Credit Document, by facsimile, portable document format (.pdf) or other electronic delivery (including e-mail) shall be as effective and binding as delivery of a manually executed counterpart thereof.
11.14 Severability
If any provision hereof is determined to be ineffective, invalid, illegal or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect, binding on and enforceable against the parties.
11.15 Governing Language
For all purposes, this English language version of this Agreement shall be the original, governing instrument and understanding of the parties. In the event of any conflict between this English language version of the Agreement and any subsequent translation into any other language, this English language version shall govern and control.
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Execution Copy – Senior Secured Gold Stream Credit Agreement
11.16 Survival of Representations and Warranties
All representations and warranties made hereunder and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of any Advance.
11.17 Entire Agreement; Schedules and Exhibits
The Schedules to this Agreement and the Exhibits to this Agreement form an integral part of this Agreement and are incorporated herein by reference and expressly made a part hereof. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, superseding all prior statements, representations, discussions, agreements and understandings, oral or written, relating to such subject matter.
11.18 Credit Party Joint and Several Liability
Each of the Credit Parties shall be jointly and severally liable for each Obligation. The Borrower and the other Credit Parties are engaged in related businesses and are integrated to such an extent that the financial strength and flexibility of each Credit Party has a direct, tangible and immediate impact on the success of the other Credit Parties. Each Guarantor will derive substantial direct and indirect benefit from the extensions of the Advances to the Borrower hereunder. Each Guarantor waives any right to revoke, terminate or suspend its Guarantee and acknowledges that it entered into such Guarantee in contemplation of the benefits that it would receive by this Agreement.
11.19 Further Assurances
Each Credit Party shall execute, acknowledge and deliver to the Lender such other and further documents and Instruments and do or cause to be done such other acts as the Lender reasonably determines to be necessary or desirable to effect the intent of the parties to this Agreement or otherwise to protect and preserve the interests of the Lender hereunder, promptly upon request of the Lender, including the execution and delivery of any and all documents and Instruments which are necessary or advisable to create, protect or maintain in favor of the Lender, Liens (with the Agreed Priority) on all Collateral of the Credit Parties as may be required by this Agreement or any Security Document that are duly perfected in accordance with all Applicable Laws.
11.20 Acknowledgements
Each of the parties hereto hereby acknowledges that:
| (a) |
it has been advised by its own legal counsel in the negotiation, preparation, execution and delivery of this Agreement and each other Credit Document; | |
| (b) |
this Agreement and the other Credit Documents shall not be construed against any party or more favourably in favour of any party based upon which party drafted the same, it being agreed and acknowledged that all parties contributed substantially to the negotiation and preparation of this Agreement and the other Credit Documents; | |
| (c) |
the Lender has no fiduciary relationship with or duty to the Borrower or any other Credit Party arising out of or in connection with this Agreement, or any other agreement, arrangement or Instrument, and the relationship between the Lender, on one hand, and the Borrower and the other Credit Parties, on the other hand, in connection herewith is solely that of creditor and debtor; |
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Execution Copy – Senior Secured Gold Stream Credit Agreement
| (d) |
neither this Agreement nor any other Credit Document or other Instrument between any Credit Party and the Lender creates a joint venture or partnership among the parties hereto, and no joint venture or partnership exists, or shall be deemed to exist, among the Lender and the Borrower or among the Lender and the other Credit Parties; and | |
| (e) |
each of the Credit Documents are confidential in nature and none of the parties hereto shall disclose any part of the Credit Documents to any third party (other than each party’s respective financial and legal advisors), without the prior written consent of the other parties hereto, unless such party is required to do so by a Governmental Entity. If a Governmental Entity expressly mandates the disclosure of any part of the Credit Documents, the Lender shall be provided with written notice, five (5) Business Days prior to the scheduled date of disclosure and shall be permitted to redact certain portions of the Credit Documents which will be disclosed. |
11.21 Language
The parties acknowledge that they have required that this Agreement, as well as all documents, notices and legal proceedings executed, given or instituted pursuant or relating directly or indirectly hereto, be drawn up in English (except as the parties may otherwise agree in writing). Les parties reconnaissent avoir exigé la rédaction en anglais de cet acte, ainsi que de tous documents exécutés, xxxx xxxxxx et procédures judiciaires intentées, directment ou indirectment, à la suite de ou relativement au présent acte.
[Signatures on following page.]
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Execution Copy – Senior Secured Gold Stream Credit Agreement
IN WITNESS WHEREOF the parties have executed this Senior Secured Gold Stream Credit Agreement.
| Lender: | Borrower: | |||
| WATERTON GLOBAL VALUE, L.P., | SANTA FE GOLD (BARBADOS) | |||
| by its Investment Manager, Altitude Management Limited | CORPORATION | |||
| By: | By: | |||
| Authorized Signing Officer | Authorized Signing Officer | |||
| Guarantors: | ||||
| AZCO MICA, INC. | ||||
| By: | ||||
| Authorized Signing Officer | ||||
| THE LORDSBURG MINING COMPANY | ||||
| By: | ||||
| Authorized Signing Officer | ||||
| SANTA FE GOLD CORPORATION | ||||
| By: | ||||
| Authorized Signing Officer | ||||
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EXHIBIT A
BORROWING NOTICE
Reference is made to that certain senior secured gold stream credit agreement dated as of December ____, 2011 among Santa Fe Gold (Barbados) Corporation (the “Borrower”), the Guarantors of the Borrower from time to time (the “Guarantors”) and Waterton Global Value, L.P., by its Investment Manager, Altitude Management Limited (the “Lender”) (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Credit Agreement”). Capitalized terms used herein without definition are so used as defined in the Credit Agreement.
The undersigned hereby gives irrevocable notice, as required pursuant to Section 2.4 or Section 3.7 (as applicable) of the Credit Agreement, of a request hereby for the following Advance to be made under the Loan or the Revolving Credit Facility:
Advance under the Facility or Revolving Credit Facility: ________________
Amount: $__________
Date of Advance: __________
The
Advance will be, as permitted by Section 2.5 or Section 3.3 (as applicable) of
the Credit Agreement, utilized to:
_______________________________________________________________________.
The undersigned hereby certifies that on the date hereof and on the date of the requested Advance, set forth above, and after giving effect to the Advance requested hereby: (i) the representations and warranties of the Credit Parties in the Credit Documents shall be true and correct on the date of and upon giving effect to such Advance (except for representations and warranties expressly stated to relate to a specific earlier date); (ii) no Default or Event of Default has occurred and is continuing on the date hereof or after giving effect to the Advance and the Lender has received a certificate of a senior financial officer of the Borrower so certifying to the Lender; (iii) all conditions precedent in the Credit Agreement have been satisfied for the First Advance and/or the Second Advance, as the case may be; and (iv) there has been no change, event or occurrence that has, had or could reasonably be expected to have a Material Adverse Effect before or after the requested Advance.
The undersigned hereby irrevocably authorizes and directs the Lender to deliver the advance by wire transfer as set out below:
| Beneficiary Name | Santa Fe Gold (Barbados) Corporation |
| Bank Name | |
| Account Number | |
| Swift Code | |
| Transit Number |
- 1 -
IN WITNESS WHEREOF, the Borrower has caused this Borrowing Notice to be executed and delivered by its duly authorized officer to the Lender on this ____ day of December, 2011.
SANTA FE GOLD (BARBADOS) CORPORATION
Per: ________________________
Name:
Title:
- 2 -
EXHIBIT B
COMPLIANCE CERTIFICATE
This ____ day of _____________, 20___.
TO: WATERTON GLOBAL VALUE L.P., BY ITS INVESTMENT MANAGER, ALTITUDE MANAGEMENT LIMITED (THE “LENDER”)
The undersigned refers to the senior secured gold stream credit agreement dated December ____, 2011 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Credit Agreement”) among Santa Fe Gold (Barbados) Corporation (the “Borrower”), the Guarantors of the Borrower from time to time (the “Guarantors”) and the Lender. Capitalized terms used herein without definition are so used as defined in the Credit Agreement.
I, the undersigned, __________________, Chief Financial Officer of the Borrower, certify, without personal liability, to the Lender, that on this ____ day of __________, 20___ (the “Determination Date”):
1. I have read the provisions of the Credit Agreement which are relevant to this certificate and have made such examinations or investigations as are necessary to enable me to express an informed opinion on the matters contained in this certificate.
| 2. |
As at this date: | ||
| (a) |
The representations and warranties referred to in Article 8 of the Credit Agreement are true and correct as though made on this date; | ||
| (b) |
The Borrower and each of the Credit Parties (if any) have duly performed all the covenants in Article 9 of the Credit Agreement; | ||
| (c) |
The Borrower and the Credit Parties (if any) are not in breach of any of the covenants, terms and/or conditions of the Credit Agreement; | ||
| (d) |
There have been no changes to the corporate structure as set out in Section 8.1(x) of the Credit Agreement; | ||
| (e) |
No Default or Event of Default has occurred which is continuing; | ||
| (f) |
The attached financial information is true and correct in all material respects; and | ||
| (g) |
The financial statements delivered pursuant to Section 9.1(a)(i) or 9.1(a)(ii), as applicable, have been prepared in accordance with GAAP in effect on the date of such financial statements and the information contained therein is true and correct in all respects, subject only to year end audit adjustments, and present fairly and consistently the results of operations and changes in the financial position of the Borrower, on a consolidated basis, as of and to this date. | ||
- 3 -
3. I acknowledge and agree on behalf of the Borrower that this certificate constitutes a “Credit Document” for the purposes of the Credit Agreement.
DATED this ______day of ____________, 20__.
____________________________________
Name:
Title:
- 4 -
EXHIBIT C
THE PROJECTS
See Attached.
- 5 -
EXHIBIT D
SOLVENCY CERTIFICATE
TO : WATERTON GLOBAL VALUE L.P., BY ITS INVESTMENT MANAGER, ALTITUDE MANAGEMENT LIMITED (the “Lender”)
The undersigned refers to the senior secured gold stream credit agreement dated December ____, 2011 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Credit Agreement”) among Santa Fe Gold (Barbados) Corporation (the “Borrower”), the Guarantors of the Borrower from time to time (the “Guarantors”) and the Lender. Capitalized terms used herein without definition are so used as defined in the Credit Agreement.
I, the undersigned, _______________________, Chief Financial Officer of the Borrower, certify, without personal liability, to the Lender, that on this ____ day of __________, 20___:
1. I have read Section 7.1(a)(xi) and other provisions of the Credit Agreement which are relevant to this certificate and have made such examinations or investigations as are necessary to enable me to express an informed opinion on the matters contained in this certificate.
| 2. |
As at this date the Credit Parties: | ||
| (a) |
may legally enter into and perform the obligations under the Credit Documents to which they are a party; | ||
| (b) |
are able to pay their debts and meet their obligations as they become due in the ordinary course of business; | ||
| (c) |
will not be rendered insolvent by virtue of any Advance to be made under the Credit Agreement; | ||
| (d) |
will not engage, and are not about to engage, in business or transactions which will cause them to be left with an unreasonably small amount of capital; | ||
| (e) |
have not incurred Debt or liabilities beyond their ability to pay on a timely basis; and | ||
| (f) |
are otherwise solvent under Applicable Law. | ||
3. I acknowledge and agree on behalf of the Borrower that this certificate constitutes a “Credit Document” for the purposes of the Credit Agreement.
- 6 -
DATED this ______day of ____________, 20__.
_____________________________________
Name:
Title:
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SCHEDULE 1.1(A) - MONTHLY REPAYMENT FIGURES
See Attached.
- 8 -
SCHEDULE 1.1(B) – MATERIAL CONTRACTS
See Attached.
- 9 -
SCHEDULE 1.1(C) – CASH FLOW MODEL CONSOLIDATED
See Attached.
- 10 -
SCHEDULE 1.1(D) – MINING PROPERTIES
See Attached.
- 11 -
SCHEDULE 1.1(E) – XXXXX PROPERTY
See Attached
- 12 -
SCHEDULE 1.1(F) – PERMITTED LIENS
See Attached.
- 13 -
SCHEDULE 1.1(G) – PERMITTED RELATED PARTY TRANSACTIONS
See Attached.
- 14 -
SCHEDULE 8.1(A) – INCORPORATION & QUALIFICATION
See Attached.
- 15 -
SCHEDULE 8.1(J) – OWNERSHIP OF PROPERTY
See Attached.
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SCHEDULE 8.1(L) – LEASES
See Attached.
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SCHEDULE 8.1(J)(V) – LIENS
See Attached.
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SCHEDULE 8.1(X) – CORPORATE STRUCTURE
See Attached.
- 19 -
SCHEDULE 8.1(Y) – SUBSIDIARIES
See Attached.
- 20 -
SCHEDULE 8.1(AA) – PERMITTED DEBT
See Attached.
- 21 -
SCHEDULE 8.1(CC) – LITIGATION
See Attached.
- 22 -
SCHEDULE 8.1(DD) – SCHEDULE DISCLOSURE
See Attached.
- 23 -
SCHEDULE 8.1(GG) – BROKER’S FEES
See Attached.
- 24 -
SCHEDULE 8.1(II) – CEASE TRADE ORDERS
See Attached.
- 25 -
SCHEDULE 8.1(JJ) – AFFILIATE TRANSACTIONS
See Attached.
- 26 -
SCHEDULE 8.1(LL) – PROJECT PERMITS
See Attached.
- 27 -
SCHEDULE 9.1(CC) – TITLE OPINION – NON-PATENTED MINING CLAIMS
See Attached.
- 28 -
SCHEDULE 9.1(M) – INSURANCE
See Attached.
- 29 -
SCHEDULE 9.1(R) – CREDIT PARTY ACCOUNTS
See Attached.
- 30 -
SCHEDULE 9.1(Y) – LANDLORD CONSENTS
See Attached.
- 31 -
SCHEDULE 9.2(I) – ACQUISITIONS
See Attached.
HBdocs - 11562827v11
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