PERFORMANCE GUARANTEE by Denison Mines Corp. as Guarantor, in favour of 9373721 Canada Inc. as Beneficiary, and Anglo Pacific Group PLC as Permitted Assignee Dated as of January 31, 2017
Execution Version
PERFORMANCE
GUARANTEE
by
Xxxxxxx
Mines Corp.
as
Guarantor,
in
favour of
9373721
Canada Inc.
as
Beneficiary,
and
Anglo
Pacific Group PLC
as
Permitted Assignee
Dated
as of January 31, 2017
|
|
22949382.11
-
2
-
TABLE
OF CONTENTS
|
|
22949382.11
PERFORMANCE
GUARANTEE
THIS PERFORMANCE GUARANTEE (this
"Performance Guarantee") is
entered into as of January 31, 2017, by XXXXXXX MINES CORP., a corporation
incorporated pursuant to the laws of the Province of Ontario (the
"Performance Guarantor"), in
favour of 9373721 Canada
Inc., a corporation incorporated under the laws of Canada
(the “Beneficiary”), and upon the
permitted assignment contemplated hereunder by the Beneficiary to
Anglo Pacific Group PLC, a public company formed under the laws of
England and Wales (the “Permitted Assignee”), the
Permitted Assignee.
RECITALS
WHEREAS the Beneficiary is a
wholly-owned, special purpose subsidiary of the Performance
Guarantor and an affiliate of Xxxxxxx Mines Inc., a corporation
incorporated under the laws of the Province of Ontario
(“DMI”), and DMI
(as administrative services provider) and the Beneficiary (as
administrative services recipient) have entered into an
administrative services agreement dated as of January 31, 2017 (as
amended to the date hereof and as may be further amended, modified,
supplemented or restated from time to time, the “Administrative Services
Agreement”) providing for the provision of
administrative services by DMI to SPV;
WHEREAS the Beneficiary, as lender, and
DMI, as borrower, entered into a loan agreement dated as of January
31, 2017 (as amended to the date hereof and as may be further
amended, modified, supplemented or restated from time to time, the
“SPV Loan
Agreement”) providing for a CAD$40,800,000 secured
loan with recourse therefor being limited to certain specified
assets, including DMI’s right to be paid certain proceeds
arising out of the First Amended and Restated XXX Mill Toll Milling
Agreement, dated November 30, 2011 and entered into between the
XxXxxxx Lake Joint Venture and the Cigar Lake Joint Venture, as
amended, restated, supplemented or otherwise modified from time to
time in accordance with its terms (the “Toll Milling
Agreement”);
AND WHEREAS the Performance Guarantor
has agreed to enter into this Performance Guarantee in order to
guarantee, the performance of DMI’s obligations to the
Beneficiary pursuant to the Administrative Services Agreement and
the SPV Loan Agreement;
WHEREAS the Permitted Assignee has
agreed to lend the Beneficiary CAD $40,800,000, provided, among
other things, that the Beneficiary assigns its rights, interest and
entitlements under this Performance Guarantee, together with
certain related security, to the Permitted Assignee;
NOW THEREFORE, in consideration of the
premises and the agreements, provisions and covenants herein
contained, the parties agree as follows:
Unless
otherwise defined in this Performance Guarantee, all capitalized
terms used herein as defined terms shall have the meanings given to
them in the SPV Loan Agreement. The rules of construction and usage
set forth in sections 1.2, 1.3 and 8.21 through 8.26 of the SPV
Loan Agreement apply to this Performance Guarantee and are hereby
incorporated by reference into this Performance Guarantee as if set
forth in full herein, except that any references to the
“Borrower” in such sections shall be construed as
references to the Performance Guarantor.
(a)
The Performance
Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to:
(i)
the Beneficiary;
and
(ii)
effective upon the
assignment by the Beneficiary to the Permitted Assignee of all of
the Beneficiary’s rights, interests and entitlements under
this Performance Guarantee in accordance with Section 20(b), the
Permitted Assignee,
the
full and punctual performance of all obligations to be performed by
DMI under the Administrative Services Agreement and SPV Loan
Agreement, including the payment when due of all amounts owing by
DMI thereunder or in connection with the SPV Loan Agreement (such
obligations of DMI, collectively, the "Obligations").
(b)
The Performance
Guarantor shall, and hereby guarantees and covenants to, ensure
that DMI will duly and punctually perform and observe the
Obligations. It shall not be a condition to the accrual or
enforcement of the obligation of the Performance Guarantor to
perform or observe any such Obligations (or to cause the same to be
performed or observed) that the Beneficiary or the Permitted
Assignee shall have first made any request of or demand upon or
given any notice to the Performance Guarantor or to DMI or have
initiated any action or proceeding against the Performance
Guarantor or DMI in respect thereof.
(c)
For greater
certainty, the guarantee by the Performance Guarantor of the
Obligations arising under the SPV Loan Agreement is made with
regard to, and is subject to, the limitations on recourse for
payment of the Obligations that are contained in Section 2.6 of the
SPV Loan Agreement. To the extent that such limited recourse
provisions reduce or limit the Obligations, the obligations of the
Performance Guarantor hereunder are correspondingly reduced and
limited.
(d)
The Performance
Guarantor shall have no obligation to guarantee: (i) any
obligations of the parties arising under the Toll Milling
Agreement; (ii) the existence, payment or collection of the cash
flows comprising or intended to comprise the Loan Stream; or (iii)
the performance of any obligations other than the
Obligations.
(a)
This is an
absolute, unconditional and continuing guarantee of performance of
the Obligations, and the Performance Guarantor agrees that its
obligations under this Performance Guarantee shall be irrevocable.
The dissolution, insolvency, reorganization, liquidation or
adjudication of bankruptcy of the Performance Guarantor shall not
revoke this Performance Guarantee.
(b)
No act or thing
need occur to establish the liability or obligation of the
Performance Guarantor hereunder, and no act or thing, except the
full discharge and performance of the Obligations, shall in any way
exonerate the Performance Guarantor hereunder or modify, reduce,
limit or release the liability of Performance Guarantor hereunder.
The Performance Guarantor waives all presentments, demands for
performance, notices of dishonor and notices of acceptance of this
Performance Guarantee. The Beneficiary and the Permitted Assignee
shall not be required first to enforce performance or payment of
the Obligations by DMI before enforcing this Performance Guarantee.
Until performance in full of the Obligations, the obligations of
the Performance Guarantor under this Performance Guarantee shall
not be affected, modified or impaired upon the happening from time
to time of any event, including the events described in Section
4 herein, whether or not with notice
to or the consent of the Performance Guarantor.
(c)
The Performance
Guarantor further agrees that, if any payment applied hereunder or
under the SPV Loan Agreement to the Obligations is thereafter set
aside, recovered, rescinded or required to be returned for any
reason (including the bankruptcy, insolvency, reorganization or
liquidation of DMI) or declared to be fraudulent or preferential,
the Obligations to which such payment was applied shall for the
purpose of this Performance Guarantee be deemed to have continued
in existence, notwithstanding such payment, and this Performance
Guarantee shall be enforceable as to such Obligations as fully as
if such payment had never been made. The provisions of this Section
3(c) hereof shall survive any
termination of this Performance Guarantee.
The
validity and enforceability of this Performance Guarantee and the
liability of the Performance Guarantor hereunder shall not be
affected or impaired by any of the following events:
(a)
the lack of
validity or enforceability, or the discharge, disaffirmance,
settlement or compromise (by any Person, including any trustee in
bankruptcy or other similar official) of the Obligations or any
part thereof or of the Administrative Services Agreement or the SPV
Loan Agreement;
(b)
the failure or
omission to enforce or any waiver of any right, power or remedy
with respect to the Obligations or any part thereof against
DMI;
(c)
any delay or lack
of diligence in the enforcement of the Obligations, or any failure
to institute proceedings, file a claim, give any required notices
or otherwise protect the Obligations or any part
thereof;
(d)
any change of the
time, manner or place of payment or performance, or any other term
of any of the Obligations or any part thereof;
(e)
any grant of time,
renewals, extensions, modifications, compromises, concessions,
amendment, waivers, releases, discharges, substitutions and other
indulgences to DMI in respect of the Obligations or any part
thereof or any provision of any instrument or agreement relating
thereto;
(f)
any law, regulation
or order of any jurisdiction affecting any term of any of the
Obligations or any part thereof or the rights of the Beneficiary or
of the Permitted Assignee with respect thereto;
(g)
the commencement of
any bankruptcy, insolvency, reorganization, liquidation, winding-up
or similar proceeding with respect to DMI;
(h)
any full or partial
release, compromise or settlement with, or agreement not to xxx,
DMI in respect of any Obligations or any part thereof;
(i)
any full or partial
release, surrender, cancellation, waiver, subordination or
modification or other discharge, with or without consideration, of
any collateral securing the Obligations or any part
thereof;
(j)
any collection,
sale, lease or disposition of, or any other enforcement of or
realization on, all or any portion of the Collateral;
(k)
any permitted
assignment, pledge or other transfer by DMI of all or any part of
the Obligations or any evidence thereof;
(l)
any acceptance of
collateral security, guarantors, accommodation parties or sureties
for any or the Obligations;
(m)
any change in the
existing or future relationship between the Performance Guarantor
and DMI, including any sale, pledge or transfer of the securities
of DMI directly or indirectly by the Performance
Guarantor;
(n)
any change of name,
objects, businesses, assets, capital structure or constitution of
the Performance Guarantor or DMI;
(o)
any Change of
Control, merger, consolidation or amalgamation of the Performance
Guarantor or DMI;
(p)
any assignment,
delegation or subcontracting of the duties or obligations of DMI
under the Administrative Services Agreement or the SPV Loan
Agreement; or
(q)
any legal or
equitable discharge or defense of the Performance
Guarantor.
Until
the Obligations are paid and performed in full, the Performance
Guarantor shall not exercise any right of subrogation with respect
to any payments made by it pursuant to this Performance Guarantee,
provided that if the Performance Guarantor pays an amount pursuant
to this Performance Guarantee in respect of Borrower Toll Revenues
that are required to be deposited by DMI into the Loan Collateral
Account pursuant to section 5.9 of the SPV Loan Agreement, the
Performance Guarantor shall, unless a Default has occurred and is
continuing, be entitled to receive such Borrower Toll Revenues from
DMI (which shall not exceed the amount paid by the Performance
Guarantor) if and when such Borrower Toll Revenues are actually
received by DMI. Until the Obligations are paid and performed in
full, the Performance Guarantor waives any benefit of the
collateral, if any, which may from time to time secure the
Obligations or any part thereof, other than collateral security in
respect of Borrower Toll Revenues actually received by DMI and
corresponding to a payment made by the Performance Guarantor in the
circumstances contemplated in the proviso of the preceding
sentence.
Any
Person (a) into which the Performance Guarantor may be merged or
consolidated, (b) resulting from any amalgamation, merger or
consolidation to which the Performance Guarantor shall be a party,
(c) which acquires by conveyance, transfer, or lease substantially
all of the assets of the Performance Guarantor, or
(d) succeeding to the business of the Performance Guarantor,
in any of the foregoing cases shall execute an agreement of
assumption to perform every obligation of the Performance Guarantor
under this Performance Guarantee and, whether or not such
assumption agreement is executed, shall be the successor to the
Performance Guarantor under this Performance Guarantee without the
execution or filing of any document or any further act on the part
of any of the parties to this Performance Guarantee, anything in
this Performance Guarantee to the contrary notwithstanding;
provided, however, that nothing contained herein shall be deemed to
release the Performance Guarantor from any obligation as
Performance Guarantor hereunder. The Performance Guarantor shall
provide prompt notice of any amalgamation, merger, consolidation,
acquisition or succession pursuant to this Section to the
Beneficiary and the Permitted Assignee.
Notwithstanding the
foregoing, the Performance Guarantor shall not amalgamate, merge or
consolidate with any other Person or permit any other Person to
become a successor to the Performance Guarantor's business, unless
(a) immediately after giving effect to such transaction, no
representation, warranty or covenant made pursuant to Section
7 shall have been breached (for
purposes hereof, such representations and warranties shall speak as
of the date of the consummation of such transaction) and no Event
of Default shall have occurred and be continuing, and (b) the
Performance Guarantor shall have delivered to the Beneficiary and
the Permitted Assignee an officer's certificate stating that such
amalgamation, consolidation, merger or succession and such
agreement of assumption comply with this Section and that all
conditions precedent, if any, provided for in this Performance
Guarantee relating to such transaction have been complied
with.
The
Performance Guarantor hereby represents and warrants to the
Beneficiary and the Permitted Assignee as follows:
(a)
Organization, Etc. The Performance
Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the province of its incorporation
and has the corporate power and corporate capacity to carry on its
business as it is now being conducted and to execute, deliver and
perform this Performance Guarantee. The Performance Guarantor is
duly qualified, registered or licenced in each jurisdiction in
which the nature of its assets or its business requires such
qualification, registration or licence, except where the failure to
be so qualified, registered or licenced would not have a material
adverse effect on the Performance Guarantor's ability to perform
its obligations under this Performance Guarantee.
(b)
Authorization/Valid Agreement. The
Performance Guarantor has the corporate power and capacity to
execute and deliver this Performance Guarantee and to carry out its
terms. The execution, delivery and performance of this Performance
Guarantee have been duly authorized by all required corporate or
other action on the part of the Performance Guarantor, and this
Performance Guarantee constitutes a legal, valid and binding
obligation of the Performance Guarantor, enforceable against it in
accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles.
(c)
No Conflicts. The execution, delivery
and performance by the Performance Guarantor of this Performance
Guarantee does not and will not (i) contravene its certificate or
articles of incorporation or bylaws, (ii) violate any provision of,
or require any filing, registration, consent or approval under, any
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to
the Performance Guarantor, (iii) result in a breach of or
constitute a default or require any unobtained consent under any
indenture or loan or credit agreement or any other agreement, lease
or instrument to which the Performance Guarantor is a party or by
which it or its properties or assets may be bound, or (iv) result
in, or require, the creation or imposition of any Lien upon or with
respect to any of the properties or assets now owned or hereafter
acquired by the Performance Guarantor, other than any Permitted
Liens or as otherwise provided for under the Intercreditor
Agreement.
(d)
No Proceedings. There are no
proceedings or investigations pending, or to the best knowledge of
the Performance Guarantor, threatened against the Performance
Guarantor before any governmental authority (i) asserting the
invalidity of this Performance Guarantee, (ii) seeking to prevent
the consummation of the transactions contemplated by this
Performance Guarantee, (iii) seeking any determination or
ruling that would adversely affect the performance by the
Performance Guarantor of its obligations under this Performance
Guarantee, or (iv) seeking any determination or ruling that
would adversely affect the validity or enforceability of this
Performance Guarantee.
(e)
No Consents. No consent, approval,
authorization or order of or declaration, filing or registration
with any governmental authority or other Person is required in
connection with the execution, delivery or performance of this
Performance Guarantee, except such as have been duly made or
obtained.
(f)
Benefits. The Performance Guarantor has
a direct and substantial economic interest in DMI and expects to
derive substantial benefits therefrom and from the transactions
described in the Administrative Services Agreement and SPV Loan
Agreement and this Performance Guarantee shall be effective and
enforceable by the Beneficiary and the Permitted Assignee without
regard to the receipt, nature or value of any such
benefits.
(g)
Solvency. The Performance Guarantor is
not insolvent nor will it be rendered insolvent by virtue of
entering into or carrying out this Performance
Guarantee.
The
obligations of the Performance Guarantor hereunder are undertaken
as primary obligor and independently of the obligations of DMI, and
action or actions may be brought or prosecuted directly against the
Performance Guarantor whether or not action is brought first or at
all against DMI, against any collateral security or in any other
circumstance whatsoever, and whether or not DMI is joined in any
such action or actions, or any claims or demands are made or are
not made, or any action is taken on or against DMI.
To the
fullest extent permitted by applicable law, the Performance
Guarantor hereby waives:
(a)
any defense arising
by reason of any invalidity or unenforceability of any of DMI's
obligations in respect of the Administrative Services Agreement or
the SPV Loan Agreement and any manner in which the Beneficiary or
the Permitted Assignee has exercised (or not exercised) any rights
and remedies under the Administrative Services Agreement or the SPV
Loan Agreement, respectively;
(b)
all presentments,
demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance
of the Administrative Services Agreement or the SPV Loan
Agreement;
(c)
notice of any
indulgences, extensions, consents or waivers given to DMI, notice
of any Default or any Event of Default or other notice of any kind
whatsoever;
(d)
any right or claim
of right to cause the Beneficiary or the Permitted Assignee to
proceed against DMI in any particular order, to proceed against or
exhaust any collateral security held by the Beneficiary or the
Permitted Assignee at any time or to pursue any other right or
remedy whatsoever at any time;
(e)
any requirement of
diligence or promptness on the Beneficiary’s or the Permitted
Assignee’s part in (i) making any claim or demand on or
commencing suit against DMI, and (ii) otherwise enforcing the
Beneficiary's rights in respect of the Obligations;
(f)
any defense of
waiver, release, discharge in bankruptcy, statute of limitations,
res judicata, statute of
frauds, anti-deficiency statute, fraud, usury, illegality or
unenforceability which may be available to DMI in respect of any
Obligations; and
(g)
any duty of the
Beneficiary or the Permitted Assignee to advise the Performance
Guarantor of any information known to the Beneficiary or the
Permitted Assignee, as the case may be, regarding the financial
condition of DMI or any other circumstance, it being agreed that
the Performance Guarantor assumes responsibility for being and
keeping informed of such condition or any such
circumstance.
Without limiting
the generality of the foregoing, to the fullest extent permitted by
applicable law, the Performance Guarantor specifically waives all
defenses the Performance Guarantor may have based upon any election
of remedies by the Beneficiary or the Permitted Assignee which
destroys the Performance Guarantor's rights to proceed against DMI
for reimbursement, contribution or otherwise, including any loss of
rights that it may suffer by reason of any rights, powers, remedies
or defenses of DMI in connection with any laws limiting, qualifying
or discharging indebtedness of or remedies against DMI, and the
Performance Guarantor hereby agrees not to exercise or pursue, so
long as any of the Obligations remain unsatisfied, any right to
reimbursement, subrogation, or contribution from DMI in respect of
payments hereunder.
The
Performance Guarantor represents, warrants and agrees that each of
the waivers set forth herein are made with the Performance
Guarantor's full knowledge of its significance and consequences,
with the understanding that events giving rise to any defense
waived may diminish, destroy or otherwise adversely affect rights
which the Performance Guarantor otherwise may have against DMI, and
that under the circumstances the waivers are
reasonable.
(a)
Prior to the
assignment by the Beneficiary to the Permitted Assignee of the
Beneficiary’s rights, interests and entitlements under this
Performance Guarantee, the Performance Guarantor shall make
immediate payment to the Beneficiary of the Obligations, when due
in accordance with the terms of the SPV Loan Agreement, upon demand
for payment therefor made by the Beneficiary to the Performance
Guarantor.
(b)
Upon and following
the assignment by the Beneficiary to the Permitted Assignee of all
of the Beneficiary’s rights, interests and entitlements under
this Performance Guarantee, the Performance Guarantor shall make
immediate payment to the Permitted Assignee of the Obligations,
when due in accordance with the terms of the SPV Loan Agreement,
upon demand for payment therefor made by the Permitted Assignee to
the Performance Guarantor.
(c)
Subject to Section
12, each payment to be made by the Performance Guarantor hereunder
in respect of the Obligations shall be made without set-off or
counterclaim.
(d)
Notwithstanding any
other provision, in no circumstance shall the amount payable by the
Performance Guarantor collectively to the Beneficiary and Permitted
Assignee under this Performance Guarantee, together with amounts
paid by or on behalf of DMI in respect of the Obligations,
including any recoveries received by the Beneficiary and the
Permitted Assignee in connection with any action or proceeding,
exceed the amount payable by DMI in respect of such Obligations, in
each case as determined without reference to this Performance
Guarantee.
(a)
Any and all amounts
payable to the Beneficiary or the Permitted Assignee by the
Performance Guarantor under this Performance Guarantee shall be
made net of and after any deduction or withholding for any Taxes,
if any, required to be withheld or deducted by law or the
interpretation thereof by the applicable Governmental Agency
(except where the deduction or withholding arises as a direct
consequence of a breach by DMI or the Performance Guarantor of the
terms of any Loan Document). The Performance Guarantor shall not be
liable to the Beneficiary or the Permitted Assignee for such
amounts remitted by the Performance Guarantor.
(b)
Whenever any Taxes
are remitted by the Performance Guarantor on account of amounts
required to be deducted or withheld by law or the administrative
practice of the Canada Revenue Agency or other relevant taxation
authority or the interpretation thereof by the applicable
Governmental Agency, as promptly as possible thereafter the
Performance Guarantor shall send to the Beneficiary and the
Permitted Assignee a certified copy of an original or a certified
copy of an official receipt received by the Performance Guarantor
showing the remittance thereof or such other evidence of remittance
as may be reasonably satisfactory to the Beneficiary and the
Permitted Assignee.
(c)
The parties
acknowledge that they are not aware of any obligation under
applicable law or the administrative practice of the Canada Revenue
Agency or other relevant taxation authority that would require the
Performance Guarantor to withhold or remit tax in respect of any
payment made by the Performance Guarantor to the Beneficiary or the
Permitted Assignee under this Performance Guarantee.
(d)
The Permitted
Assignee shall indemnify and hold harmless the Beneficiary, DMI and
the Performance Guarantor (in this Section 12(d), each an
“APG Indemnified
Party”) within ten (10) days after written demand
therefor (specifying in reasonable detail the nature and the amount
of Taxes), for the full amount of any withholding Taxes (including
interest and penalties with respect thereto) paid or payable by an
APG Indemnified Party pursuant to an assessment or reassessment of
withholding Taxes issued to the APG Indemnified Party by a
Governmental Agency, on or with respect to any amount payable under
this Performance Guarantee arising from a failure to withhold from
any payment made thereunder on account of withholding Taxes
(including any penalties and interest with respect thereto) whether
or not such withholding Taxes were correctly or legally imposed by
the relevant Governmental Agency. A certificate as to the amount of
such payment or liability delivered to an APG Indemnified Party by
the Performance Guarantor, if accompanied by a copy of the relevant
document assessing or reassessing withholding Tax, shall be
conclusive absent manifest error. For greater certainty, this
indemnity shall apply only to withholding Taxes imposed under Part
XIII of the Income Tax Act (Canada) and similar taxes imposed by a
province of Canada, shall not apply to Taxes calculated by
reference to or imposed on the net income or net profit of any APG
Indemnified Party and shall not apply to the extent that the Taxes
resulted directly as a consequence of a breach by any APG
Indemnified Party of the terms of any Loan Document except to the
extent that such withholding obligation relates to services
considered to have been performed in Canada as contemplated by
subsection 105(1) of the Regulations to the Income Tax Act (Canada) or similar
obligation imposed by a province of Canada as well as any successor
federal or provincial provisions. To the extent that such indemnity
arises under a document to which such APG Indemnified Party is not
itself a specified party, each APG Indemnified Party thereunder who
is a specified party to such document shall, and shall be entitled
to, hold the rights and entitlements arising under such indemnity,
to the extent it is expressed to be for the benefit of such
non-party, as a trustee for and on behalf of such non-party, and
such specified party shall take commercially reasonable steps to
enforce such indemnity rights and entitlements for the benefit of
such non-party.
(e)
If an APG
Indemnified Party receives a refund of any withholding Taxes for
which they have been indemnified by the Permitted Assignee, the APG
Indemnified Party shall pay over such refund to the Permitted
Assignee, net of all reasonable out-of-pocket expenses of such APG
Indemnified Party and without interest (other than any interest
paid by the applicable Governmental Authority with respect to such
refund); provided, that the Permitted Assignee, upon the request of
the APG Indemnified Party, agrees to repay the amount paid over to
the Permitted Assignee to the APG Indemnified Party in the event
such APG Indemnified Party is required to repay such refund to such
Governmental Authority.
(f)
The relevant APG
Indemnified Party shall (i) notify the Permitted Assignee promptly
following receipt of any assessment or reassessment on account of
taxes for which the Permitted Assignee would have an
indemnification obligation pursuant to this Section 12 and (ii)
contest such assessment or reassessment through appropriate
filings, notices or proceedings if instructed to do so by the
Permitted Assignee (acting reasonably). The APG Indemnified Party
may refrain from acting in accordance with any instructions from
the Permitted Assignee until it has received indemnification and/or
security that it may reasonably require for any out-of-pocket
expenses which it may incur in complying with the Permitted
Assignee’s instructions. the Permitted Assignee and the APG
Indemnified Party shall consult in good faith on the steps to be
taken in order to contest the assessment or reassessment. The
appointment of any professional advisors by the APG Indemnified
Party shall be subject to approval by the Permitted Assignee
(acting reasonably).
(g)
The agreements in
this Section 12 shall survive the termination of this Performance
Guarantee and the payment and satisfaction of the
Obligations.
The
Performance Guarantor shall pay or reimburse all reasonable legal
fees and legal expenses incurred by or on behalf of the Beneficiary
or the Permitted Assignee in connection with the protection,
defense or enforcement of this Performance Guarantee in any
litigation, bankruptcy or insolvency proceedings.
(a)
Nonpetition. The Performance Guarantor
shall not petition or otherwise invoke, or join any other Person in
petitioning or invoking, the process of any governmental authority
for the purpose of commencing or sustaining a case against the
Beneficiary under any bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator, other similar official of the Beneficiary or any
substantial part of its respective property, or ordering the
winding up or liquidation of the affairs of the
Beneficiary.
(b)
Notification. The Performance Guarantor
shall promptly notify the Beneficiary and the Permitted Assignee of
any (i) default in the observance or performance of any of its
obligations under this Performance Guarantee and (ii) breach of a
representation or warranty in Section 7, if in either case, such default or breach
could reasonably be expected to materially adversely affect its
ability to perform its obligations under this Performance
Guarantee.
(c)
DMI Intercompany Liabilities. The
Performance Guarantor hereby undertakes that, notwithstanding any
provision of any agreement or instrument which documents the terms
of any DMI Intercompany Liabilities (as defined below), it will
not, prior to the termination of the SPV Loan Agreement, without
the prior written consent of the Permitted Assignee:
(i)
assign, transfer,
create any Lien over (other than any Permitted Encumbrances) or
otherwise dispose of, any Indebtedness of DMI to the Performance
Guarantor under any inter-company loan agreement or other
inter-company payable owing from time to time (the
“DMI Intercompany
Liabilities”), except to, or at the direction of, The
Bank of Nova Scotia (or its permitted assign or successor) pursuant
to the BNS Loan Documents (as defined in the Intercreditor
Agreement; or
(ii)
commence any
proceedings against DMI or take any action for or in respect of the
recovery of any of the DMI Intercompany Liabilities or any part
thereof (including, without limitation, any action or step with a
view to commencing bankruptcy or insolvency proceedings against
DMI),
provided that, for
greater certainty: (i) DMI may make payments to the Performance
Guarantor; and (ii) the Performance Guarantor may accept payments
from DMI, in each case with respect to a DMI Intercompany Liability
if DMI has adequate funds available to it at such time to make such
payment.
This
Performance Guarantee may not be waived, modified, amended or
otherwise changed except as agreed in writing by the Performance
Guarantor, the Beneficiary and the Permitted Assignee. This
Performance Guarantee may not be terminated except in accordance
with Section 23. The Performance
Guarantor may not assign its obligations hereunder without the
prior written consent of the Beneficiary and the Permitted
Assignee.
This
Performance Guarantee shall be governed by, and construed in
accordance with, the law of the Province of Ontario and the federal
laws of Canada applicable therein (without giving effect to the
conflict of laws principles thereof).
Any
legal action or proceeding with respect to this Performance
Guarantee may be brought in the courts of the Province of Ontario
and by execution and delivery of this Performance Guarantee, the
Performance Guarantor consents, for itself and in respect of its
property, to the non-exclusive jurisdiction of those courts. The
Performance Guarantor irrevocably waives, to the maximum extent
permitted by law, any objection, including any objection to the
laying of venue or based on the grounds of forum non convenience, which it may now
or hereafter have to the bringing of any action or proceeding in
such jurisdiction in respect of this Performance Guarantee or any
document related hereto. The Performance Guarantor waives personal
service of any claim, notice of motion or application, summons,
complaint or other process, which may be made by any other means
permitted by Ontario law. The Performance Guarantor hereby
irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Performance
Guarantee, the transactions contemplated hereby or the actions of
the Beneficiary or the Permitted Assignee in the negotiation,
administration, performance or enforcement hereof.
The
Performance Guarantor may deliver an executed copy of this
Performance Guarantee by any electronically scanned method of
delivery and it shall promptly deliver to the Beneficiary and the
Permitted Assignee an originally executed copy of this Performance
Guarantee.
Any
invalidity or unenforceability of any provision or application of
this Performance Guarantee shall not affect other lawful provisions
and the application hereof, and to this end the provisions of this
Performance Guarantee are declared to be severable.
(a)
This Performance
Guarantee shall be effective as of the date hereof, without further
act, condition or acceptance by DMI, the Beneficiary or the
Permitted Assignee, shall be binding upon the Performance Guarantor
and the permitted successors and assigns of the Performance
Guarantor and shall inure to the benefit of the Beneficiary and the
Permitted Assignee and each of their respective successors and
permitted assigns.
(b)
The assignment by
the Beneficiary of its rights, interests and entitlements under
this Performance Guarantee shall be made and effected under a
written instrument of assignment duly executed by the parties to
this Performance Guarantee, and shall become effective upon the
delivery of such executed instrument of assignment to the
Performance Guarantor.
Any
payment to be made by the Performance Guarantor hereunder shall be
paid in Canadian dollars.
22.
The
Performance Guarantee, including all documents contemplated hereby,
constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior negotiations,
undertakings, representations and understandings.
This
Performance Guarantee shall terminate upon (a) indefeasible payment
in full in cash of all Obligations (other than indemnification
obligations for which no claim or demand for payment, whether oral
or written, has been made at such time), and (b) cash
collateralization of indemnification obligations of DMI to the
Beneficiary in respect of the Obligations for claims that have been
made, threatened or may reasonably be expected to be successful;
provided, however, that the provisions of Sections 3(c),12, 14, 16
and 167 hereof shall survive any
termination of this Performance Guarantee.
[signature page follows]
|
|
22949382.11
-
2
-
IN WITNESS WHEREOF the parties have
caused this Performance Guarantee to be executed by their
respective duly authorized officers as of the date first written
above.
|
XXXXXXX MINES CORP.
|
|
|
|
|
|
|
|
|
By:
|
(signed)
“Xxxxx
Xxxxx”
|
|
|
Name:
Xxxxx Xxxxx
Title:
President & CEO
|
|
9373721 CANADA INC.
|
|
|
|
|
|
|
|
|
By:
|
(signed)
“Xxxxx
Xxxxx”
|
|
|
Name:
Xxxxx Xxxxx
Title:
President
|
|
ANGLO PACIFIC GROUP PLC
|
|
|
|
|
|
|
|
|
By:
|
(signed)
“Xxxxxx
Xxxxxx”
|
|
|
Name:
Xxxxxx Xxxxxx
Title:
Director
|
|
|
22949382.11
