THIS WAIVER NO. 3 TO THE REVOLVING CREDIT FACILITY (this "Waiver") is dated October 13, 2022 (the "Effective Date") and made between: RECITALS:
Exhibit 1.2
THIS WAIVER NO.
3 TO THE REVOLVING CREDIT FACILITY (this "Waiver") is dated
October 13, 2022 (the "Effective Date") and made between:
| (1) | GATOS SILVER, INC., a corporation existing under the Laws of Delaware, and its successors and permitted assigns (the “Borrower”); |
| (2) | CERTAIN SUBSIDIARIES OF THE BORROWER from time to time, (collectively, the “Guarantors”); |
| (3) | BANK OF MONTREAL, CHICAGO BRANCH and CERTAIN FINANCIAL INSTITUTIONS from time to time, as lenders (the “Lenders”); |
| (4) | BANK OF MONTREAL, CHICAGO BRANCH as bookrunner and mandated lead arranger (the “Arranger”); and |
| (5) | BANK OF MONTREAL, CHICAGO BRANCH, in its capacity as administrative agent for and on behalf of the Lenders (the "Administrative Agent"). |
RECITALS:
| (A) | Certain credit facilities were made available to the Borrower pursuant to the revolving credit facility dated as of July 12, 2021 (as amended on March 7, 2022 and August 15, 2022, the “Facility Agreement”) among, inter alia, the Borrower, as borrower, the Guarantors, as guarantors (the Borrower and the Guarantors, collectively, the “Obligors”), the Administrative Agent, as administrative agent, the Arranger, as Bookrunner and mandated lead arranger, and the Lenders, as lenders. |
| (B) | Pursuant to an amendment and waiver to the revolving credit facility dated March 7, 2022 among, inter alios, the Borrower, the Administrative Agent, and the Lenders (the “March 2022 Amendment and Waiver”), the Administrative Agent and the Lenders granted to the Borrower certain waivers of: (i) any Default or Event of Default resulting from the Mineral Reserves Overestimate (as defined in the March 2022 Amendment and Waiver), as more particularly described in the March 2022 Amendment and Waiver (the “Mineral Reserve Estimate Defaults”); and (ii) the Borrower’s obligations under Sections 11.1(b)(i) and 11.1(b)(ii) of the Facility Agreement to deliver financial statements to the Administrative Agent for the 2021 Fiscal Year and the first two Fiscal Quarters of the 2022 Fiscal Year in order to extend the delivery date of such financial statements to November 14, 2022 (the “Initial FS Waiver”). |
| (C) | The Borrower has requested a further waiver of its obligations under Sections 11.1(b)(i) and 11.1(b)(ii) of the Facility Agreement to deliver financial statements to the Administrative Agent for the 2021 Fiscal Year and the first two Fiscal Quarters of the 2022 Fiscal Year in order to extend the delivery date of such financial statements from November 14, 2022 to March 31, 2023. |
| (D) | The Administrative Agent and each of the Lenders are willing to agree, subject to the terms and conditions set forth in this Waiver, to provide certain waivers to the Facility Agreement as set forth in this Agreement. |
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
| 1 | Interpretation |
| 1.1 | Capitalized terms used in this Waiver and not otherwise defined have the meanings given to them in the Facility Agreement. |
| 1.2 | This Waiver constitutes a Credit Document under the Facility Agreement and the other Finance Documents. |
| 1.3 | The recitals and statements set out above are true and correct and are hereby incorporated into this Waiver. |
| 2 | Waiver |
In reliance by the Lenders and the Administrative Agent on the representations and warranties made by the Borrower in Section 3, and notwithstanding anything to the contrary in the Facility Agreement or any Finance Document, the Administrative Agent and the Lenders hereby waive, for the 2021 Fiscal Year and the 2022 Fiscal Year (including, without limitation, quarterly financial statements for the Fiscal Quarters ended March 31, 2022, June 30, 2022 and September 30, 2022), the Borrower’s obligations to deliver financial statements under Sections 11.1(b)(i) and 11.1(b)(ii), as such obligations have been modified by the Initial FS Waiver; provided, however, that the Borrower shall furnish the financial statements required to be furnished under Sections 11.1(b)(i) and 11.1(b)(ii) in full compliance with such Sections as soon as practicable and, in any event, no later than March 31, 2023.
| 3 | Representations and Warranties |
| 3.1 | Each Obligor represents and warrants to the Administrative Agent and the Lenders as follows: |
| (a) | the recitals to this Waiver are true and complete; |
| (b) | the representations and warranties of the Obligors contained in the Finance Documents are true and complete and are not misleading as of the Effective Date, other than to the extent such representations and warranties of the Obligors are not true and complete as a result solely of the Mineral Reserve Estimate Defaults, including, without limitation, any action, suit, inquiry, claim or other proceeding arising out of the Mineral Reserve Estimate Defaults for which no judgment or award has been granted against any Obligor, and which is being diligently contested in good faith by appropriate proceedings by the Borrower; |
| (c) | each Obligor is in full compliance with all of its covenants in the Finance Documents, other than as waived by the Facility Agreement and herein; and |
| (d) | no Default or Event of Default, other than as waived by the Facility Agreement and herein, has occurred or is continuing or would result from the execution and delivery of this Waiver. |
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| 4 | Continuing Obligations |
| 4.1 | The matters granted in this Waiver are strictly limited to the matters and upon the conditions set out herein and shall not be construed as the granting of or a right to any waiver of any other provision. |
| 4.2 | Except as expressly provided in Section 2 above, nothing in this Waiver shall constitute an amendment, waiver, consent or release of any provision of, or any right or remedy of any party to the Facility Agreement, nor otherwise prejudice any right or remedy of any Finance Party under the Facility Agreement or any Finance Document. |
| 4.3 | Save to the extent varied or amended by this Waiver, the Facility Agreement remains in full force and effect in accordance with its terms and shall be read and construed with this Waiver as one instrument. |
| 5 | References to and Effect on Other Finance Documents |
| 5.1 | On and after the effectiveness of this Waiver, each reference in the Facility Agreement to "this Agreement", "the Revolving Credit Facility", "hereunder", "hereof" or words of like import referring to the Facility Agreement, and each reference in the other Finance Documents to "Facility Agreement", “Credit Agreement”, "thereunder", "thereof" or words of like import referring to the Facility Agreement, shall mean and be a reference to the Facility Agreement, as modified by this Waiver. |
| 5.2 | The Facility Agreement, as specifically modified by this Waiver, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Security Documents shall continue to secure the payment of all obligations of the Obligors and Gatos Canada under the Finance Documents, as modified by this Waiver. |
| 5.3 | The execution, delivery and effectiveness of this Waiver shall not, except as expressly provided herein: (i) operate as a waiver of any right, power or remedy of any of the Finance Parties under any of the Finance Documents, nor constitute a waiver of any provision of any of the Finance Documents, (ii) prejudice any other right, power or remedy which the Finance Parties now have or may have in the future under or in connection with the Facility Agreement or the other Finance Documents, (iii) operate as a forbearance with respect to any of its rights or remedies concerning any Events of Default which may have occurred or are continuing as of the date hereof or which may occur after the date hereof (other than the Mineral Reserve Estimate Defaults, which have been waived in accordance with the terms of the March 2022 Amendment and Waiver), or (iv) be a novation of the obligations of the Obligors or Gatos Canada under any of the Finance Documents. |
| 6 | Incorporation by Reference |
Sections 1.5 (Currency), 1.6 (Applicable Law), 1.7 (Time of the Essence), 16.15 (Waivers and Amendments), 18.2 (Severability), 18.3 (Counterparts), 18.8 (Waiver of Jury Trial), and 18.10 (No Third-Party Beneficiaries) of the Facility Agreement are hereby incorporated by reference herein, mutatis mutandis.
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IN WITNESS WHEREOF, the parties to this Waiver have executed and delivered this Waiver on the date first written above.
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as Borrower | ||
| Per: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: CEO | ||
| Per: | /s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ | ||
| Title: CFO | ||
| BANK OF MONTREAL, CHICAGO BRANCH, as Lender | ||
| Per: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Vice President, Corporate Banking | ||
| BANK OF MONTREAL, CHICAGO BRANCH, as Administrative Agent | ||
| Per: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇ | ||
| Title: Vice President, Corporate Banking | ||