EXHIBIT 10.1
EXECUTION COPY
KINROSS GOLD CORPORATION, KINROSS GOLD U.S.A., INC.,
FAIRBANKS GOLD MINING, INC. AND ROUND MOUNTAIN GOLD CORPORATION
AS BORROWERS
AND
THE BANK OF NOVA SCOTIA
AS CO-LEAD ARRANGER AND ADMINISTRATIVE AGENT
AND
SOCIETE GENERALE
AS CO-LEAD ARRANGER AND SYNDICATION AGENT
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
------------------------------------------
CREDIT AGREEMENT
------------------------------------------
DATED AS OF FEBRUARY 1, 2003
FASKEN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
TORONTO, ONTARIO
TABLE OF CONTENTS
PAGE
ARTICLE 1 INTERPRETATION.............................................................................1
1.1 DEFINED TERMS..............................................................................1
1.2 OTHER USAGES..............................................................................31
1.3 PLURAL AND SINGULAR.......................................................................31
1.4 HEADINGS..................................................................................31
1.5 CURRENCY..................................................................................31
1.6 APPLICABLE LAW............................................................................31
1.7 TIME OF THE ESSENCE.......................................................................31
1.8 NON-BANKING DAYS..........................................................................31
1.9 CONSENTS AND APPROVALS....................................................................32
1.10 AMOUNT OF CREDIT..........................................................................32
1.11 SCHEDULES.................................................................................32
1.12 EXTENSION OF CREDIT.......................................................................32
1.13 JOINT AND SEVERAL OBLIGATIONS.............................................................32
ARTICLE 2 CREDIT FACILITY...........................................................................33
2.1 ESTABLISHMENT OF CREDIT FACILITY..........................................................33
2.2 LENDERS' COMMITMENTS......................................................................33
2.3 REDUCTION OF CREDIT FACILITY..............................................................33
2.4 TERMINATION OF CREDIT FACILITY............................................................34
ARTICLE 3 GENERAL PROVISIONS RELATING TO CREDITS....................................................34
3.1 TYPES OF CREDIT AVAILMENTS................................................................34
3.2 FUNDING OF LOANS..........................................................................34
3.3 FAILURE OF LENDER TO FUND LOAN............................................................35
3.4 FUNDING OF BANKERS' ACCEPTANCES...........................................................36
3.5 BA RATE LOANS.............................................................................38
3.6 TIMING OF CREDIT AVAILMENTS...............................................................39
3.7 INABILITY TO FUND U.S. DOLLAR ADVANCES IN CANADA..........................................39
3.8 INABILITY TO FUND LIBOR LOAN IN THE UNITED STATES.........................................40
3.9 TIME AND PLACE OF PAYMENTS................................................................41
3.10 REMITTANCE OF PAYMENTS....................................................................41
3.11 EVIDENCE OF INDEBTEDNESS..................................................................42
3.12 GENERAL PROVISIONS RELATING TO ALL LETTERS................................................42
3.13 NOTICE PERIODS............................................................................44
3.14 ADMINISTRATIVE AGENT'S DISCRETION TO ALLOCATE.............................................44
ARTICLE 4 DRAWDOWNS.................................................................................44
4.1 DRAWDOWN NOTICE...........................................................................44
ARTICLE 5 ROLLOVERS.................................................................................45
5.1 BANKERS' ACCEPTANCES......................................................................45
5.2 LIBOR LOANS...............................................................................46
5.3 ROLLOVER NOTICE...........................................................................46
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 6 CONVERSIONS...............................................................................46
6.1 CONVERTING LOAN TO OTHER TYPE OF LOAN.....................................................46
6.2 CONVERTING LOAN TO BANKERS' ACCEPTANCES...................................................47
6.3 CONVERTING BANKERS' ACCEPTANCES TO LOAN...................................................47
6.4 CONVERSION NOTICE.........................................................................47
6.5 ABSENCE OF NOTICE.........................................................................48
6.6 CONVERSION BY LENDERS.....................................................................48
ARTICLE 7 INTEREST AND FEES.........................................................................48
7.1 INTEREST RATES............................................................................48
7.2 CALCULATION AND PAYMENT OF INTEREST.......................................................49
7.3 GENERAL INTEREST RULES....................................................................49
7.4 SELECTION OF INTEREST PERIODS.............................................................50
7.5 ACCEPTANCE FEES...........................................................................51
7.6 STANDBY FEE...............................................................................51
7.7 LETTER FEES...............................................................................51
7.8 APPLICABLE RATE ADJUSTMENT................................................................52
ARTICLE 8 RESERVE, CAPITAL, INDEMNITY AND TAX PROVISIONS............................................52
8.1 CONDITIONS OF CREDIT......................................................................52
8.2 CHANGE OF CIRCUMSTANCES...................................................................52
8.3 FAILURE TO FUND AS A RESULT OF CHANGE OF CIRCUMSTANCES....................................53
8.4 INDEMNITY RELATING TO CREDITS.............................................................54
8.5 INDEMNITY FOR TRANSACTIONAL AND ENVIRONMENTAL LIABILITY...................................55
8.6 PAYMENTS FREE AND CLEAR OF TAXES..........................................................56
ARTICLE 9 REPAYMENTS AND PREPAYMENTS................................................................57
9.1 REPAYMENTS................................................................................57
9.2 EXTENSION OF MATURITY DATE................................................................57
9.3 VOLUNTARY PREPAYMENTS UNDER CREDIT FACILITY...............................................58
9.4 PREPAYMENT NOTICE.........................................................................58
9.5 REIMBURSEMENT OR CONVERSION ON PRESENTATION OF LETTERS....................................58
9.6 LETTERS SUBJECT TO AN ORDER...............................................................59
9.7 CURRENCY OF REPAYMENT.....................................................................59
9.8 REPAYMENTS OF CREDIT EXCESS...............................................................59
ARTICLE 10 REPRESENTATIONS AND WARRANTIES............................................................59
10.1 REPRESENTATIONS AND WARRANTIES............................................................59
10.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES................................................71
ARTICLE 11 COVENANTS.................................................................................71
11.1 AFFIRMATIVE COVENANTS.....................................................................71
11.2 RESTRICTIVE COVENANTS.....................................................................79
11.3 PERFORMANCE OF COVENANTS BY ADMINISTRATIVE AGENT..........................................83
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 12 CONDITIONS PRECEDENT TO OBTAINING CREDIT..................................................83
12.1 CONDITIONS PRECEDENT TO ALL CREDIT........................................................83
12.2 CONDITIONS PRECEDENT TO INITIAL DRAWDOWN..................................................84
12.3 WAIVER....................................................................................86
12.4 IMPORT OF EXISTING LETTERS................................................................87
ARTICLE 13 DEFAULT AND REMEDIES......................................................................87
13.1 EVENTS OF DEFAULT.........................................................................87
13.2 REFUND OF OVERPAYMENTS....................................................................90
13.3 REMEDIES CUMULATIVE.......................................................................90
13.4 SET-OFF...................................................................................91
ARTICLE 14 THE ADMINISTRATIVE AGENT..................................................................91
14.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.....................................91
14.2 INTEREST HOLDERS..........................................................................91
14.3 CONSULTATION WITH COUNSEL.................................................................92
14.4 DOCUMENTS.................................................................................92
14.5 ADMINISTRATIVE AGENT AS LENDER............................................................92
14.6 RESPONSIBILITY OF ADMINISTRATIVE AGENT....................................................92
14.7 ACTION BY ADMINISTRATIVE AGENT............................................................92
14.8 NOTICE OF EVENTS OF DEFAULT...............................................................93
14.9 RESPONSIBILITY DISCLAIMED.................................................................93
14.10 INDEMNIFICATION...........................................................................94
14.11 CREDIT DECISION...........................................................................94
14.12 SUCCESSOR ADMINISTRATIVE AGENT............................................................94
14.13 DELEGATION BY ADMINISTRATIVE AGENT........................................................95
14.14 WAIVERS AND AMENDMENTS....................................................................95
14.15 DETERMINATION BY ADMINISTRATIVE AGENT CONCLUSIVE AND BINDING..............................96
14.16 ADJUSTMENTS AMONG LENDERS AFTER ACCELERATION..............................................96
14.17 REDISTRIBUTION OF PAYMENT.................................................................97
14.18 DISTRIBUTION OF NOTICES...................................................................97
14.19 DETERMINATION OF EXPOSURES................................................................97
14.20 DECISION TO ENFORCE SECURITY..............................................................98
14.21 ENFORCEMENT...............................................................................98
14.22 APPLICATION OF CASH PROCEEDS OF REALIZATION...............................................99
14.23 SECURITY DOCUMENTS........................................................................99
14.24 [INTENTIONALLY DELETED]..................................................................100
14.25 SURVIVAL.................................................................................100
14.26 DISCHARGE OF SECURITY....................................................................100
ARTICLE 15 MISCELLANEOUS............................................................................100
15.1 NOTICES..................................................................................100
15.2 SEVERABILITY.............................................................................100
TABLE OF CONTENTS
(continued)
PAGE
15.3 COUNTERPARTS.............................................................................101
15.4 SUCCESSORS AND ASSIGNS...................................................................101
15.5 ASSIGNMENT...............................................................................101
15.6 ENTIRE AGREEMENT.........................................................................102
15.7 FURTHER ASSURANCES.......................................................................102
15.8 JUDGMENT CURRENCY........................................................................103
15.9 NOTICE OF REMEDIES.......................................................................104
15.10 WAIVERS OF JURY TRIAL....................................................................104
SCHEDULE A LENDERS AND INDIVIDUAL COMMITMENTS.......................................................108
SCHEDULE B COMPLIANCE CERTIFICATE...................................................................109
SCHEDULE C FORM OF ASSIGNMENT.......................................................................116
SCHEDULE D PRINCIPAL PLACE OF BUSINESS..............................................................119
SCHEDULE E FORM OF DRAWDOWN NOTICE..................................................................122
SCHEDULE F FORM OF ROLLOVER NOTICE..................................................................124
SCHEDULE G FORM OF CONVERSION NOTICE................................................................126
SCHEDULE H CORPORATE STRUCTURE......................................................................128
SCHEDULE I REIMBURSEMENT INSTRUMENT.................................................................129
SCHEDULE J APPLICABLE RATES.........................................................................130
SCHEDULE K SECURITY DOCUMENTS.......................................................................131
SCHEDULE L EXISTING LETTERS AND TEMPORARY LETTERS...................................................132
SCHEDULE M BORROWER INSTRUMENT OF ADHESION..........................................................134
SCHEDULE N LOCATION OF TANGIBLE PERSONAL PROPERTY...................................................136
TABLE OF CONTENTS
(continued)
PAGE
SCHEDULE O FORT ▇▇▇▇ DEPOSIT LEGAL DESCRIPTIONS.....................................................140
SCHEDULE P ▇▇▇▇ ▇▇▇▇ DEPOSIT LEGAL DESCRIPTIONS.....................................................141
SCHEDULE Q TRUE NORTH DEPOSIT LEGAL DESCRIPTIONS....................................................142
SCHEDULE R NON-CORE ASSETS..........................................................................143
SCHEDULE S MATERIAL CONTRACTS.......................................................................144
SCHEDULE T EXISTING MARGINED AGREEMENTS.............................................................149
CREDIT AGREEMENT dated as of February 1, 2003 among Kinross Gold
Corporation, a corporation incorporated under the laws of the Province of
Ontario ("Kinross Canada"), Kinross Gold U.S.A., Inc., a corporation
incorporated under the laws of the State of Nevada ("Kinross U.S.A."), Fairbanks
Gold Mining, Inc., a corporation incorporated under the laws of the State of
Delaware ("Fairbanks U.S.") and Round Mountain Gold Corporation, a corporation
incorporated under the laws of the State of Delaware ("Round Mountain")
(collectively, the "Initial Borrowers"), the lending institutions from time to
time parties hereto as Lenders (each a "Lender" and, collectively, the
"Lenders"), The Bank of Nova Scotia and Societe Generale, as Co-Lead Arrangers,
The Bank of Nova Scotia, as Administrative Agent, and Societe Generale, as
Syndication Agent.
WHEREAS the Initial Borrowers have requested the Lenders to establish a
certain credit facility to repay in full outstanding borrowings and to replace
or assume existing letters of credit under the Existing Credit Agreement and
otherwise to finance working capital requirements and for general operating
purposes;
AND WHEREAS the Lenders are willing to provide such credit facility to
the Initial Borrowers for the aforesaid purposes upon the terms and conditions
contained herein;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the
mutual covenants and agreements herein contained and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS
The following defined terms shall for all purposes of this agreement, or
any amendment, substitution, supplement, replacement or addition hereto, have
the following respective meanings unless the context otherwise specifies or
requires or unless otherwise defined herein:
"ADDITIONAL BORROWER" means an Additional Canadian Borrower or an
Additional U.S. Borrower.
"ADDITIONAL CANADIAN BORROWER" means any direct or indirect wholly-owned
Subsidiary of Kinross Canada which (i) is incorporated, continued,
amalgamated or otherwise created in accordance with and continues to be
governed by the laws of Canada or any province thereof, (ii) is domiciled
in Canada and (iii) has become a Borrower hereunder pursuant to Section
11.1(bb).
"ADDITIONAL GUARANTOR" means any direct or indirect Subsidiary of Kinross
Canada (other than the Borrowers and the Non-Guaranteeing Subsidiaries)
which has become a Guarantor pursuant to Section 11.1(aa).
"ADDITIONAL U.S. BORROWER" means any direct or indirect wholly-owned
Subsidiary of Kinross Canada which (i) is incorporated, continued,
organized or otherwise created in accordance with and continues to be
governed by the laws of a state of the United States, (ii) is domiciled
in the United States and (iii) has become a Borrower hereunder pursuant
to Section 11.1(bb).
"ADMINISTRATIVE AGENT" means The Bank of Nova Scotia, in its capacity as
administrative agent of the Lenders, and any successor thereto pursuant
to Section 14.12.
"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; for greater certainty for the purposes
of this definition, "body corporate" shall include a Canadian chartered
bank.
"ALTERNATE BASE RATE CANADA" means, at any particular time, the variable
rate of interest per annum, calculated on the basis of a 360-day year,
which is equal to the greater of (a) the Base Rate Canada at such time
and (b) the aggregate of (i) the Federal Funds Effective Rate at such
time and (ii) 1/2 of 1% per annum.
"ALTERNATE BASE RATE NEW YORK" means, at any particular time, the
variable rate of interest per annum, calculated on the basis of a 360-day
year, which is equal to the greater of (a) the Base Rate New York at such
time and (b) the aggregate of (i) the Federal Funds Effective Rate at
such time and (ii) 1/2 of 1% per annum.
"APPLICABLE RATE" means, for a particular Fiscal Quarter, the rate per
annum used to determine the interest rate on various types of Loans, the
rate used to calculate acceptance fees pursuant to Section 7.5, the rate
used to calculate standby fees pursuant to Section 7.6 or the rate used
to calculate Letter issuance fees pursuant to Section 7.7 by reference to
the range in which the Leverage Ratio for the second immediately
preceding Fiscal Quarter falls as set forth in Schedule J hereto,
provided that (i) changes in the Applicable Rate shall be effective as
set forth in Section 7.8, (ii) changes in the Applicable Rate shall
apply, as at the effective dates of such changes, to Bankers'
Acceptances, BA Rate Loans, LIBOR Loans and Letters outstanding on such
dates, but only for those portions of applicable terms or Interest
Periods, as the case may be, falling within those times during which the
changes in the Applicable Rate are effective, as provided above. Up to
and including the Fiscal Quarter ending September 30, 2003, the
Applicable Rate indicated for Level 4 in Schedule J hereto shall apply.
The Applicable Rate for the Fiscal Quarter commencing October 1, 2003
shall be determined based upon the Leverage Ratio using the Net
Indebtedness as at June 30, 2003 and Rolling OCF for the Fiscal Quarter
ending June 30, 2003. The Applicable Rate for each subsequent Fiscal
Quarter shall be determined based
upon the Leverage Ratio using Net Indebtedness and Rolling OCF having a
similar one Fiscal Quarter lag.
"AVAILABLE CREDIT" means, at any particular time, the amount, if any, by
which the amount of the Credit Facility at such time (without giving
effect to any temporary reduction in the availability of credit
thereunder which is referred to in Section 3.1) exceeds the amount of
credit outstanding under the Credit Facility at such time.
"BA DISCOUNTED PROCEEDS" means, in respect of any Bankers' Acceptances to
be accepted by a Canadian Lender on any day, an amount (rounded to the
nearest whole cent and with one-half of one cent being rounded up)
calculated on such day by multiplying:
(a) the aggregate face amount of such Bankers' Acceptances; by
(b) the amount determined by dividing one by the sum of one plus the
product of:
(i) the BA Rate which is applicable to such Bankers' Acceptance
(expressed as a decimal); and
(ii) a fraction, the numerator of which is the number of days
remaining in the term of such Bankers' Acceptances and the
denominator of which is 365;
with the amount as so determined being rounded up or down to the
fifth decimal place and .000005 being rounded up.
"BA PROCEEDS" means, with respect to a particular Bankers' Acceptance,
the BA Discounted Proceeds with respect thereto less the aggregate amount
of the acceptance fees in respect of such Bankers' Acceptance calculated
in accordance with Section 7.5.
"BA RATE" means:
(a) with respect to an issue of Bankers' Acceptances with the same
maturity date to be accepted by a Schedule I Lender hereunder, the
discount rate per annum, calculated on the basis of a year of 365
days, (i) equal to, as determined by the Administrative Agent, the
arithmetic average (rounded upwards to the nearest multiple of
0.01%) of the discount rates that appear on the Reuters Screen
CDOR Page at or about 10:00 a.m. (Toronto time) on the date of
issue and acceptance of such Bankers' Acceptances, for bankers'
acceptances having a comparable face value and an identical
maturity date to the face value and maturity date of such issue of
Bankers' Acceptances or (ii) if such Page does not appear, the
discount rate per annum, calculated on the basis of a year of 365
days, determined by the Administrative Agent as being the
arithmetic average (rounded upwards to
the nearest multiple of 0.01%) of the discount rates of the
Schedule I Reference Lenders determined in accordance with their
normal practices at or about 10:00 a.m. (Toronto time) on the date
of issue and acceptance of such Bankers' Acceptances, for bankers'
acceptances having a comparable face value and an identical
maturity date to the face value and maturity date of such issue of
Bankers' Acceptances; and
(b) with respect to an issue of Bankers' Acceptances with the same
maturity date to be accepted by a Schedule II Lender or a Schedule
III Lender hereunder, the lesser of (i) the discount rate per
annum, calculated on the basis of a year of 365 days, determined
by the Administrative Agent as being the arithmetic average
(rounded upwards to the nearest multiple of 0.01%) of the discount
rates of the Schedule II and III Reference Lenders determined in
accordance with their normal practices at or about 10:00 a.m.
(Toronto time) on the date of issue and acceptance of such
Bankers' Acceptances, for bankers' acceptances having a comparable
face value and an identical maturity date to the face value and
maturity date of such issue of Bankers' Acceptances and (ii) the
BA Rate with respect to an issue of Bankers' Acceptances with the
same maturity date to be accepted by a Schedule I Lender hereunder
plus 0.1% per annum.
"BA RATE LOAN" shall have the meaning ascribed thereto in Section 3.5.
"BANKERS' ACCEPTANCE" means a ▇▇▇▇ of exchange subject to the BILLS OF
EXCHANGE ACT (Canada) or a depository ▇▇▇▇ subject to the DEPOSITORY
BILLS AND NOTES ACT (Canada) (a) drawn by a Canadian Borrower and
accepted by a Canadian Lender, (b) denominated in Canadian dollars, (c)
having a term to maturity of 30 to 180 days (subject to availability and
the right of the Administrative Agent, in its discretion, to restrict the
term or maturity dates applicable to Bankers' Acceptances), (d) issued
and payable only in Canada and (e) having a face amount of not less than
Cdn. $1,000,000 or an integral multiple of Cdn. $1,000 in excess thereof.
"BANKING DAY" means any day, other than Saturday and Sunday, on which
banks generally are open for business in Montreal, Quebec, Toronto,
Ontario, New York, New York, and Atlanta, Georgia and when used in
respect of LIBOR Loans, means any day other than a Saturday or Sunday on
which banks generally are open for business in Montreal, Quebec, Toronto,
Ontario, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and on
which transactions can be carried on in the London interbank market.
"BASE RATE CANADA" means the variable rate of interest per annum
determined by the Administrative Agent from time to time as its base rate
for United States dollar loans made by the Administrative Agent in Canada
from time to time, being a variable per annum reference rate of interest
adjusted automatically upon change by the Administrative Agent,
calculated on the basis of a year of 365 or 366 days, as the case may be.
"BASE RATE CANADA LOAN" means monies lent by the Canadian Lenders to a
Canadian Borrower hereunder in United States dollars and upon which
interest accrues at a rate referable to the Alternate Base Rate Canada.
"BASE RATE NEW YORK" means the variable rate of interest per annum
determined by the Administrative Agent from time to time as its base rate
for United States dollar loans made by the Administrative Agent in the
United States from time to time, being a variable per annum reference
rate of interest adjusted automatically upon change by the Administrative
Agent, calculated on the basis of a year of 360 days.
"BASE RATE NEW YORK LOAN" means monies lent by the U.S. Lenders to a U.S.
Borrower and upon which interest accrues at a rate referable to the
Alternate Base Rate New York.
"BORROWER GUARANTEES" means the one or more guarantees to be entered into
by the Borrowers in favour of the Administrative Agent, in form and
substance satisfactory to the Co-Lead Arrangers and as the same may be
amended, modified, supplemented or replaced from time to time, and
pursuant to which each Borrower shall guarantee all of the Secured
Obligations of each other Borrower to the extent they relate to the
Secured Risk Management Agreements of such other Borrowers.
"BORROWER INSTRUMENT OF ADHESION" means an instrument in the form set
forth in Schedule M to be entered into by an Additional Borrower.
"BORROWERS" means the Canadian Borrowers and the U.S. Borrowers and
"BORROWER" means any of the Borrowers.
"BRANCH OF ACCOUNT" means the Canadian Branch of Account in the case of a
Canadian Borrower or the U.S. Branch of Account in the case of a U.S.
Borrower.
"CANADIAN BORROWERS" means Kinross Canada and each Additional Canadian
Borrower and "CANADIAN BORROWER" means any of the Canadian Borrowers.
"CANADIAN BRANCH OF ACCOUNT" means the Toronto main branch of the
Administrative Agent located at Scotia Plaza, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, or such other branch of the Administrative Agent
located in Canada as Kinross Canada and the Administrative Agent may
agree upon.
"CANADIAN DOLLAR EQUIVALENT" means the relevant Exchange Equivalent in
Canadian dollars of any amount of United States dollars.
"CANADIAN LENDERS" means the financial institutions set out and described
as such in Schedule A as amended from time to time, each of which is
resident in Canada for the purposes of the INCOME TAX ACT (Canada).
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and
including in all events all amounts expended or capitalized under Capital
Leases, but excluding any amount representing capitalized interest) by
Kinross Canada on a consolidated basis during such period that, in
conformity with generally accepted accounting principles, are or are
required to be included as additions during such period to tangible fixed
assets and other capital expenditures reflected in the consolidated cash
flow statement of Kinross Canada, provided that the term "CAPITAL
EXPENDITURES" shall not include (a) expenditures made in connection with
the replacement, substitution or restoration of assets (i) to the extent
financed from insurance proceeds paid on account of the loss of or damage
to the assets being replaced or restored or (ii) to the extent funded
with awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced, (b) the purchase price of
equipment that is purchased simultaneously with the trade-in of existing
equipment to the extent of the credit granted by the seller of such
equipment for the equipment being traded in at such time, (c) the
purchase price of tangible fixed assets and other capital expenditures
made within 60 days of the sale of any asset to the extent purchased with
the proceeds of such sale, (d) expenditures that constitute any part of
rental expenses under operating leases for real or personal property or
(e) any capital expenditures of any Greek, Russian and Zimbabwian
Subsidiaries to the extent funded from cash flow from the operations of
the Greek, Russian and Zimbabwian Subsidiaries.
"CAPITAL LEASE", as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee that,
in conformity with generally accepted accounting principles, is, or is
required to be, accounted for as a finance lease obligation on the
balance sheet of that Person.
"CASH EQUIVALENTS" means (i) United States dollars, (ii) Canadian
dollars, (iii) securities issued or directly and fully guaranteed or
insured by the United States or Canadian government or any agency or
instrumentality thereof with maturities of 12 months or less from the
date of acquisition, (iv) certificates of deposit, time deposits and
eurodollar time deposits with maturities of one year or less from the
date of acquisition, bankers' acceptances with maturities not exceeding
one year and overnight bank deposits, in each case with any commercial
bank incorporated in the United States or Canada having capital and
surplus in excess of $500,000,000, (v) repurchase obligations for
underlying securities of the types described in clauses (iii) and (iv)
entered into with any financial institution meeting the qualifications
specified in clause (iv) above, (vi) commercial paper rated A-1 or the
equivalent thereof by ▇▇▇▇▇'▇ or S&P and in each case maturing within one
year after the date of acquisition, (vii) investment funds investing at
least 95% of their assets in securities of the types described in clauses
(i) to (vi) above and (viii) readily marketable direct obligations issued
by any state of the United States or province of Canada or any political
subdivision thereof having one of the two highest rating categories
obtainable from either ▇▇▇▇▇'▇, S&P or Dominion Bond Rating Service with
maturities of 24 months or less from the date of acquisition.
"CASH PROCEEDS OF REALIZATION" means the aggregate of (i) all Proceeds of
Realization in the form of cash and (ii) all cash proceeds of the sale or
disposition of non-cash Proceeds of Realization, in each case expressed
in U.S. dollars.
"CAYMAN PI" means Cayman Participacoes Inc., a corporation incorporated
under the laws of the Cayman Islands.
"CERCLA" means the COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND
LIABILITY ACT of 1980 of the United States, as amended by the SUPERFUND
AMENDMENTS AND REAUTHORIZATION ACT and as further amended from time to
time, and any successor statute and including all regulations issued
under all such statutes.
"CODE" means the INTERNAL REVENUE CODE of 1986 of the United States, as
amended from time to time, and any successor statute and including all
regulations issued under all such statutes.
"CO-LEAD ARRANGERS" means The Bank of Nova Scotia and Societe Generale,
in their capacity as co-lead arrangers of the Credit Facility.
"COMEX" means the New York Mercantile Exchange.
"COMBINATION" means the combination involving Kinross Canada, TVX Gold
and ▇▇ ▇▇▇▇▇ on the basis set forth in the Management Information
Circular.
"COMPANIES" means, without duplication, the Obligors and the Material
Subsidiaries.
"CONTAMINANT" means any contaminant, as defined by the EPA.
"CONTROL" means, with respect to control of a body corporate by a Person,
the holding (other than by way of security only) by or for the benefit of
that Person, or Affiliates of that Person of securities of such body
corporate or the right to vote or direct the voting of securities of such
body corporate to which, in the aggregate, are attached more than 50% of
the votes that may be cast to elect directors of the body corporate,
provided that the votes attached to those securities are sufficient, if
exercised, to elect a majority of the directors of the body corporate,
and "CONTROLLED" shall have a similar meaning.
"CONVERSION NOTICE" shall have the meaning ascribed thereto in Section
6.4.
"CREDIT DOCUMENTS" means this agreement, the Guarantees, the Borrower
Guarantees, the Security Documents, the Environmental Indemnity
Agreement, the Fee Letters, each Borrower Instrument of Adhesion and all
instruments and agreements executed and delivered by the Obligors in
favour of the Finance Parties from time to time in connection with this
agreement or any other Credit Document, but specifically excluding
Secured Risk Management Agreements.
"CREDIT EXCESS" means, as at a particular date, the amount, if any, by
which the aggregate amount of credit outstanding under the Credit
Facility as at the close of business on such date exceeds the Total
Commitment Amount as at the close of business on such date.
"CREDIT FACILITY" means the revolving credit facility established by the
Lenders in favour of the Borrowers pursuant to Section 2.1.
"DEFAULT" means any event which is or which, with the passage of time,
the giving of notice or both, would be an Event of Default.
"DESIGNATED ACCOUNT" means, with respect to transactions in a particular
currency for a particular Borrower, the account of such Borrower
maintained by the Administrative Agent at the relevant Branch of Account
for the purposes of transactions in such currency under this agreement.
"DISTRIBUTION" means:
(a) the declaration, payment or setting aside for payment of any
dividend or other distribution on or in respect of any shares in
the capital of a Company, other than a dividend declared, paid or
set aside for payment by Kinross Canada which is payable in shares
of Kinross Canada;
(b) the redemption, retraction, purchase, retirement or other
acquisition, in whole or in part, of any shares in the capital of
a Company or any securities, instruments or contractual rights
capable of being converted into, exchanged or exercised for shares
in the capital of a Company, including, without limitation,
options, warrants, conversion or exchange privileges and similar
rights; and
(c) the payment of interest or the repayment of principal with respect
to any Indebtedness of a Company which is subordinated to the
Secured Obligations.
"$" denotes Canadian dollars or U.S. dollars as the context may permit.
"DOMESTIC CASH" means cash (in the form of Canadian dollars or United
States dollars) and Cash Equivalents which are located in Canada, the
United States or the Cayman Islands, are owned by an Obligor and are
Investment Account Collateral, provided that Domestic Cash located in the
Cayman Islands must be on deposit with a financial institution acceptable
to the Administrative Agent, acting reasonably.
"DOMESTIC CASH BALANCE" means, at any particular time, the aggregate
amount of all Domestic Cash at such time.
"DRAFT" means any draft, ▇▇▇▇ of exchange, receipt, acceptance, demand or
other request for payment drawn or issued under or in respect of a
Letter.
"DRAWDOWN NOTICE" shall have the meaning ascribed thereto in Section 4.1.
"EB INC." means Echo Bay Inc., a corporation incorporated under the laws
of the State of Delaware.
"▇▇ ▇▇▇▇▇" means Echo Bay Mines Ltd., a corporation incorporated under
the laws of Canada.
"ENVIRONMENTAL INDEMNITY AGREEMENT" means the indemnity agreement to be
entered into by the Borrowers and ▇▇▇▇▇ Creek in favour of the
Administrative Agent for the benefit of the Finance Parties, in form and
substance satisfactory to the Administrative Agent and as the same may be
amended, modified, supplemented or replaced from time to time.
"ENVIRONMENTAL LAWS" means all applicable federal, state, provincial or
local statutes, laws, ordinances, codes, rules, regulations, decrees and
orders regulating, relating to or imposing liability or standards of
conduct concerning public health or protection of the environment
(including, without limitation, CERCLA, EPA and the SURFACE MINING
CONTROL AND RECLAMATION ACT of 1977, as amended).
"EPA" means the ENVIRONMENTAL PROTECTION ACT (Ontario), as amended from
time to time, and any successor statute.
"EQUITY" means, at any particular time, the amount which would, in
accordance with generally accepted accounting principles, be classified
on the consolidated balance sheet of Kinross Canada at such time as
shareholders' equity of Kinross Canada.
"ERISA" means the EMPLOYEE RETIREMENT INCOME SECURITY ACT of 1974 of the
United States, as amended from time to time, and any successor statute
and including all regulations issued under all such statutes.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which any Borrower is a
member and which group is treated as a single employer under Section
414(b) or (c) of the Code or Section 4001 of ERISA.
"ERISA COMPANIES" means the Borrowers and the ERISA Affiliates and "ERISA
COMPANY" means any of the ERISA Companies.
"EVENT OF DEFAULT" means any one of the events set forth in Section 13.1.
"EXCHANGE EQUIVALENT" means, (A) for the purposes of Sections 3.7(c) or
3.7(d), 6.1, 6.2 and 6.3, as of any particular time on any date, with
reference to any amount (the "original amount") expressed in a particular
currency (the "original currency"), the amount expressed in another
currency which would be required to buy the original amount of the
original currency using the quoted spot rates at which the principal
office in Toronto of the Administrative Agent offers to
provide such other currency in exchange for such original currency at
such time on such date; or (B) otherwise for the purposes of this
agreement, as of any particular date, with reference to any amount (the
"original amount") expressed in a particular currency (the "original
currency"), the amount expressed in another currency which would be
required to buy the original amount of the original currency using the
quoted spot rates at which the principal office in Toronto of the
Administrative Agent offers to provide such other currency in exchange
for such original currency at 12:00 noon (Toronto time) on such date.
"EXISTING CREDIT AGREEMENT" means the credit agreement made as of March
8, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.▇.▇. and Fairbanks U.S., as
borrowers, the lenders named therein and The Bank of Nova Scotia, as
administrative agent, as amended from time to time.
"EXISTING LETTERS" means the letters of credit set out and identified as
such in Schedule L hereto.
"EXISTING MARGINED AGREEMENTS" shall have the meaning ascribed thereto in
Section 11.2(g).
"EXPLORATION EXPENDITURES" means, for any period, the aggregate of all
exploration expenditures by Kinross Canada on a consolidated basis for
such period that, in conformity with generally accepted accounting
principles, are or are required to be reflected as such in the
consolidated cash flow statement of Kinross Canada for such period.
Notwithstanding the foregoing, "Exploration Expenditures" shall not
include any exploration expenditures by any Greek, Russian and Zimbabwian
Subsidiaries to the extent funded from cash flow from the operations of
the Greek, Russian and Zimbabwian Subsidiaries.
"EXPOSURE" means, with respect to a particular Finance Party at a
particular time, the amount of the Secured Obligations owing to such
Finance Party at such time, determined by such Finance Party in good
faith in accordance with Section 14.19.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any particular day, the
variable rate of interest per annum, calculated on the basis of a year of
360 days and for the actual number of days elapsed, equal to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by Federal Funds brokers as
published for such day (or, if such day is not a Banking Day, for the
next preceding Banking Day) by the Federal Reserve Bank of New York or,
for any Banking Day on which such rate is not so published by the Federal
Reserve Bank of New York, the average of the quotations for such day for
such transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative
Agent.
"FEE LETTERS" means the fee letter dated December 2, 2002 between the
Co-Lead Arrangers, Kinross Canada, Kinross U.S.A. and Fairbanks U.S. and
the agency
fee letter dated December 2, 2002 between the Administrative Agent,
Kinross Canada, Kinross U.S.A. and Fairbanks U.S., in each case as the
same may be amended, modified, supplemented or replaced from time to
time.
"FINANCE DOCUMENTS" means the Credit Documents and the Secured Risk
Management Agreements.
"FINANCE PARTIES" means the Administrative Agent, the Lenders and the
Qualified Risk Management Lenders.
"FISCAL QUARTER" means any of the three-month periods ending on the last
day of March, June, September and December in each Fiscal Year.
"FISCAL YEAR" means the twelve-month period ending on the last day of
December in each year.
"FORT ▇▇▇▇ DEPOSIT" means the real property owned by Fairbanks U.S. and
▇▇▇▇▇ Creek and described as such in Schedule O hereto, together with all
buildings and structures therein and appurtenances thereto.
"FORT ▇▇▇▇ MINE" means the gold mine located in central Alaska, 22 miles
north of Fairbanks and, for certainty, includes the Fort ▇▇▇▇ Deposit,
True North Deposit and ▇▇▇▇ ▇▇▇▇ Deposit.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve System
of the United States or any successor thereto.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means generally accepted
accounting principles in effect in Canada from time to time consistently
applied, as recommended by the Handbook of the Canadian Institute of
Chartered Accountants.
"GLOBAL PRO RATA SHARE" means, at any particular time with respect to a
particular Lender, the ratio of the Individual Commitment of such Lender
at such time to the Total Commitment Amount at such time.
"GOLD EQUIVALENT" means the gold ounces plus the gold equivalent of
silver ounces, with silver ounces converted to gold ounces based upon the
30 day trailing average spot gold and silver prices.
"GREEK, RUSSIAN AND ZIMBABWIAN SUBSIDIARIES" means (i) TVX Hellas A.E.,
▇▇▇▇▇ ▇▇▇▇▇▇▇ Gold Corporation and Kinross Holdings Zimbabwe Limited (the
"ORIGINAL GREEK, RUSSIAN AND ZIMBABWEAN SUBSIDIARIES"); and (ii) the
existing and any future Subsidiaries of any of the Original Greek,
Russian and Zimbabwean Subsidiaries.
"GUARANTEES" means the one or more guarantees to be entered into by the
Guarantors in favour of the Administrative Agent for the benefit of the
Finance
Parties, each in form and substance satisfactory to the Administrative
Agent, and pursuant to which each Guarantor shall guarantee all of the
Secured Obligations of one or more of the Borrowers, as the same may be
amended, modified, supplemented or replaced from time to time.
"GUARANTEE OBLIGATION" of any Person (the "guaranteeing person") means
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any other
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to
assure or hold harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for
which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall
be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by Kinross Canada in good faith.
"GUARANTORS" means Kinam Canada, Kinam Gold, ▇▇▇▇▇ Creek, ▇▇ ▇▇▇▇▇, EB
Inc., TVX Gold, TVX Cayman, Newinco, TVX Newmont, TVX Newmont Holdings,
Normandy Cayman, Miicre, Macaines, IGM, Cayman PI and each Additional
Guarantor and "GUARANTOR" means any of the Guarantors.
"HAZARDOUS MATERIALS" means:
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the RESOURCE CONSERVATION AND
RECOVERY ACT of the United States, as amended from time to time,
or any successor statute;
(c) any petroleum product, asbestos, polychlorinated biphenyl (PCB),
natural gas, natural gas liquids, liquified natural gas or
synthetic gas usable for fuel;
(d) any material defined as "hazardous waste" pursuant to 40 Code of
Federal Regulations Part 261 or any "hazardous chemical" as
defined pursuant to 29 Code of Federal Regulations Part 1910; or
(e) any pollutant or contaminant or hazardous or toxic chemical,
material or substance within the meaning of any applicable
federal, state, provincial or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct
concerning any hazardous or toxic waste, substance or material or
concerning the environment or public health, all as in effect on
the applicable date.
"HEDGING AGREEMENT" means any Risk Management Agreement which constitutes
any gold, silver or commodity hedging transaction, spot or forward
foreign exchange transaction, interest rate swap transaction, currency
swap transaction, forward rate transaction, rate cap transaction, rate
floor transaction, rate collar transaction, and any other exchange or
rate protection transaction, any combination of such transactions or any
option with respect to any such transaction entered into by any Borrower.
"IGM" means International Gold Mining, a corporation incorporated under
the laws of the Cayman Islands.
"INDEBTEDNESS" of any Person means, without duplication, (i) indebtedness
of such Person for borrowed money or for the deferred purchase price of
property and services, other than trade payables incurred in the ordinary
course of business and payable in accordance with customary practices,
(ii) other indebtedness of such Person which is evidenced by a note,
bond, debenture or similar instrument, (iii) obligations of such Person
under any Capital Lease (iv) contingent obligations of such Person in
respect of any letter of credit, bank guarantee or surety bond, (v) to
the extent accelerated, obligations of any Person under any gold, silver
or commodity hedging transaction, spot or forward foreign exchange
transaction, interest rate swap transaction, currency swap transaction,
forward rate transaction, rate cap transaction, rate floor transaction,
rate collar transaction, any other exchange or rate protection, any
combination of such transactions or any option with respect to any such
transaction, and (vi) the contingent obligations of such Person under any
guarantee or other agreement assuring payment of any obligations of any
Person of the type described in the foregoing clauses (i) to (v).
"INDEPENDENT ENGINEERS" means AMEC Mining & Metal Consultants, ▇▇▇▇▇▇
▇▇▇▇▇▇ Associates Inc. and SENES Consultants Limited.
"INDIVIDUAL COMMITMENT" means, with respect to a particular Lender, the
amount set forth in Schedule A attached hereto, as reduced or amended
from time to time pursuant to Sections 2.3, 8.3 and 15.5 as the
individual commitment of such Lender with respect to the Credit Facility
or as adjusted pursuant to Section 3.10, provided that, upon the
termination of the Credit Facility pursuant to Section 2.4, the
Individual Commitment of each Lender with respect to the Credit Facility
shall thereafter be equal to the Individual Commitment of such Lender
under the Credit Facility immediately prior to the termination of the
Credit Facility.
"INDUSTRIAL REVENUE BONDS" means the revenue bonds in the initial amount
of U.S.$71,000,000 issued by Alaska Industrial Development and Export
Authority at the request of Fairbanks U.S.
"INTEREST COVERAGE RATIO" means, for any Fiscal Quarter, the ratio of (i)
Rolling OCF for such Fiscal Quarter to (ii) Rolling Interest Expenses for
such Fiscal Quarter.
"INTEREST EXPENSES" means, for any particular period, the amount which
would, in accordance with generally accepted accounting principles, be
classified on the consolidated income statement of Kinross Canada for
such period as gross interest expenses (including, for greater certainty,
issuance fees with respect to letters of credit and stamping fees with
respect to bankers' acceptances).
"INTEREST PERIOD" means, in the case of any LIBOR Loan, the applicable
period for which interest on such LIBOR Loan shall be calculated pursuant
to Article 7.
"INVESTMENT" shall mean any advance, loan, extension of credit or capital
contribution to, purchase of Shares, bonds, notes, debentures or other
securities of, purchase of assets or business unit of, or any other
investment made in, any Person. The amount of any Investment shall be the
original principal or capital amount thereof less all returns of
principal or equity, or distributions or dividends paid, thereon and
shall, if made by the transfer or exchange of property other than cash,
be deemed to have been made in an original principal or capital amount
equal to the fair value of such property at the time of such Investment,
as determined in good faith by Kinross Canada.
"INVESTMENT ACCOUNT" means, with respect to a particular Obligor, any
bank account or investment account now or hereafter maintained by such
Obligor with the Administrative Agent or any other financial institution
and provided that:
(a) such Obligor has pledged with the Administrative Agent and granted
to the Administrative Agent a security interest in all of its
Investment Account Collateral pursuant to a pledge agreement, in
form and substance satisfactory to all of the Lenders, as
continuing collateral security for the Secured Obligations of such
Obligor; and
(b) if such account is maintained with a financial institution other
than the Administrative Agent, such Obligor shall have provided to
the Administrative Agent, in form and substance satisfactory to
the Administrative Agent, an instrument of such financial
institution (i) acknowledging that a security interest in the
Investment Account Collateral has been granted to the
Administrative Agent and confirming that no such security interest
has been granted to such financial institution, (ii) agreeing not
to exercise any right of set off against such account, (iii)
agreeing to provide the Administrative Agent, upon request, with
information as to the amount on deposit in such accounts and any
investments thereof, (iv) agreeing not to permit withdrawals from
such account if so notified by the Administrative Agent and (v)
agreeing to deliver up the Investment Account Collateral to the
Administrative Agent upon notice from the Administrative Agent
that the security therein is enforceable.
"INVESTMENT ACCOUNT COLLATERAL" means, with respect to a particular
Obligor, all cash (in the form of Canadian dollars or United States
dollars) and Permitted Portfolio Investments on deposit from time to time
in all Investment Accounts of such Obligor.
"IRB LOAN AGREEMENTS" means the loan agreements dated as of May 1, 1997
between Fairbanks U.S. and the Alaska Industrial Development and Export
Authority and pursuant to which the Alaska Industrial Development and
Export Authority advanced monies to Fairbanks U.S. to finance the cost of
acquisition, purchase, construction, improvement and equipping of the
Project (as defined therein).
"ISSUING LENDER" means The Bank of Nova Scotia or any other Lender
selected by the Administrative Agent and acceptable to the Borrowers who
assumes in writing the obligation of issuing Letters under the Credit
Facility on behalf of the Lenders.
"JV ACQUISITION" means the purchase by TVX Gold and a subsidiary of TVX
Gold of the indirect interest of Newmont Mining Corporation in the TVX NA
Joint Venture on the basis described in the Management Information
Circular.
"KINAM CANADA" means Kinam (B.C.) Ltd., a corporation incorporated under
the laws of the Province of British Columbia.
"KINAM GOLD" means Kinam Gold Inc., a corporation incorporated under the
laws of the State of Nevada.
"▇▇▇▇▇ ▇▇▇▇▇▇▇" means ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., a corporation incorporated
under the laws of the State of Delaware.
"LENDERS" means, collectively, the Canadian Lenders and the U.S. Lenders
and "LENDER" shall mean any U.S. Lender or any financial institution
which, together
with its Affiliate or its separately domiciled branch, agency or lending
office, constitutes a Canadian Lender and a U.S. Lender, and, after the
Termination Date, "Lender" shall mean each Person that was a Lender
immediately prior to the Termination Date but only for so long as such
Person is a Qualified Risk Management Lender.
"LETTERS" means:
(a) standby letters of credit or letters of guarantee issued by the
Issuing Lender (i) at the request, and on the credit, of a
Canadian Borrower and (ii) on behalf of such Canadian Borrower
and, if applicable, a Subsidiary of such Canadian Borrower, each
being denominated in Canadian dollars or United States dollars,
having a term of not more than one year, being renewable in the
sole discretion of the Issuing Lender, being issued to a named
beneficiary acceptable to the Issuing Lender and being otherwise
in a form satisfactory to the Issuing Lender; and
(b) standby letters of credit issued by the Issuing Lender (i) at the
request, and on the credit, of a U.S. Borrower and (ii) on behalf
of such U.S. Borrower and, if applicable, a Subsidiary of such
U.S. Borrower, each being denominated in United States dollars,
having a term of not more than one year, being renewable in the
sole discretion of the Issuing Lender, being issued to a named
beneficiary acceptable to the Issuing Lender and being otherwise
in a form satisfactory to the Issuing Lender.
"LEVERAGE RATIO" means, for any Fiscal Quarter, the ratio of (i) Net
Indebtedness at the last day of such Fiscal Quarter to (ii) Rolling OCF
for such Fiscal Quarter.
"LIBOR LOAN" means monies lent by the Canadian Lenders to a Canadian
Borrower in United States dollars and upon which interest accrues at a
rate referable to LIBOR or monies lent by the U.S. Lenders to a U.S.
Borrower in United States dollars and upon which interest accrues at a
rate referable to LIBOR (Reserve Adjusted).
"LIBOR" means the rate of interest per annum, calculated on the basis of
a year of 360 days, determined by the Administrative Agent for a
particular Interest Period to be the rate of interest per annum that
appears as such on the Telerate Screen Page 3750 at 11:00 a.m. (London
time) on the second Banking Day prior to the commencement of such
Interest Period.
"LIBOR (RESERVE ADJUSTED)" means, for a particular Interest Period, the
rate per annum, calculated on the basis of a year of 360 days, determined
pursuant to the following formula (and rounded up to the nearest 1/16 of
1%):
LIBOR (Reserve Adjusted) = LIBOR for such Interest Period
---------------------------------------
1 - LIBOR Reserve Percentage for such
Interest Period
LIBOR (Reserve Adjusted) for any Interest Period for LIBOR Loans will be
determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent, two Banking Days before the first
day of such Interest Period.
"LIBOR RESERVE PERCENTAGE" means, for a particular Interest Period, the
reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve
requirements) specified under regulations issued from time to time by the
F.R.S. Board and then applicable to assets or liabilities consisting of
and including "Eurocurrency Liabilities", as currently defined in
Regulation D of the F.R.S. Board, having a term approximately equal or
comparable to such Interest Period.
"LIEN" means any deed of trust, mortgage, charge, hypothec, assignment,
pledge, lien, vendor's privilege, vendor's right of reclamation or other
security interest or encumbrance of whatever kind or nature, regardless
of form and whether consensual or arising by law (statutory or
otherwise), that secures the payment of any indebtedness or liability or
the observance or performance of any obligation (including any agreement
to give any of the foregoing and any filing of or agreement to give any
financing statement under the UCC, the PPSA or any similar action under
any similar law of any other jurisdiction).
"LOANS" means Prime Rate Loans, BA Rate Loans, Base Rate Canada Loans,
Base Rate New York Loans and LIBOR Loans.
"MACAINES" means Macaines Mining Properties Ltd., a corporation
incorporated under the laws of the Cayman Islands.
"MAJORITY LENDERS" means, at any particular time up to the termination of
the Credit Facility pursuant to Section 2.4, such group of Lenders (and,
if there is more than one Lender, at least two Lenders) whose Individual
Commitments aggregate at least two-thirds of the Total Commitment Amount
at such time and, at any particular time after the termination of the
Credit Facility pursuant to Section 2.4 until the Termination Date, such
group of Lenders which have, in the aggregate, extended credit which is
outstanding hereunder in an amount at least two-thirds of the aggregate
amount of credit outstanding hereunder at such time after giving effect
to all necessary adjustments pursuant to Section 14.16 and, at any
particular time after the Termination Date, such group of Lenders which
have aggregate Exposure in an amount at least two-thirds of the aggregate
Exposure of all of the Lenders at such time.
"MANAGEMENT INFORMATION CIRCULAR" means the Management Information
Circular dated December 20, 2002 and any supplement thereto accompanying
the
notice of special meeting of the shareholders of each of Kinross Canada,
TVX Gold and ▇▇ ▇▇▇▇▇.
"▇▇▇▇▇▇" means Compania ▇▇▇▇▇▇ ▇▇▇▇▇▇ de Oro, a corporation incorporated
under the laws of Chile.
"MATERIAL ADVERSE CHANGE" means any change of circumstances or event (or
any Lender becoming aware of any facts not previously disclosed or known)
which the Majority Lenders determine is reasonably likely to have a
Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" means a material adverse effect (or a series of
adverse effects, none of which is material in and of itself but which,
cumulatively, result in a material adverse effect) on the business,
property, assets, liabilities, conditions (financial or otherwise) or
prospects of the Obligors taken as a whole since December 31, 2001, on
the ability of any Obligor to perform its material obligations under any
Finance Document or on the ability of any Finance Party to enforce any of
such obligations. The Lenders acknowledge and agree that, provided and so
long as the obligations of the Greek, Russian and Zimbabwian Subsidiaries
are non-recourse to the Companies, no event or circumstance affecting any
of the Greek, Russian or Zimbabwian Subsidiaries, including any
bankruptcy or insolvency thereof, would or could reasonably be expected
to result in a Material Adverse Effect.
"MATERIAL CONTRACTS" means the contracts listed in Schedule S.
"MATERIAL SUBSIDIARIES" means, without duplication, the Borrowers (other
than Kinross Canada), the Guarantors and the Significant Material
Subsidiaries.
"MATURITY DATE" means December 31, 2005, as the same may be extended from
time to time pursuant to Section 9.2.
"▇▇▇▇▇ CREEK" means ▇▇▇▇▇ Creek Mining, Inc., a corporation incorporated
under the laws of the State of Alaska.
"MIICRE" means Miicre Mining Investments Ltd., a corporation incorporated
under the laws of the Cayman Islands.
"MINE OWNERS" means ▇▇▇▇▇▇, Rio Paracatu Mineracao S.A. and Mineracao
Serra Grande S.A. and "MINE OWNER" means any of the Mine Owners.
"MONTANA" means Montana Participacoes Ltda., a corporation incorporated
under the laws of Brazil.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor by
merger or consolidation to its business.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which any ERISA Company is making or
accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"NET INCOME" means, for any particular period, the amount which would, in
accordance with generally accepted accounting principles, be classified
on the consolidated income statement of Kinross Canada for such period as
the net income of Kinross Canada excluding any extraordinary items.
"NET INDEBTEDNESS" means, at any particular time, Total Indebtedness at
such time less the Domestic Cash Balance at such time.
"NEWINCO" means Cayman Newinco Inc., a corporation incorporated under the
laws of the Cayman Islands.
"NEWINCO BRAZIL" means Newinco Comercia e Participacoes Ltda., a
corporation incorporated under the laws of Brazil.
"NON-CORE ASSETS" means the assets of the Companies listed in Schedule R.
"NON-GUARANTEEING SUBSIDIARIES" means all of the Subsidiaries of Kinross
Canada which are not Obligors as of the date hereof (to the extent not
subsequently becoming a Significant Material Subsidiary) and any future
Subsidiaries of Kinross Canada which are designated as Non-Guaranteeing
Subsidiaries in writing by the Majority Lenders.
"NON-RECOURSE INDEBTEDNESS" means Indebtedness of any Subsidiary, direct
or indirect, of Kinross Canada (other than the Material Subsidiaries)
with respect to which no recourse may be had in any way to the Companies.
"NON-RECOURSE SUBSIDIARIES" means any Subsidiary, direct or indirect, of
Kinross Canada that has any Non-Recourse Indebtedness.
"NORMANDY CAYMAN" means Normandy Cayman Holdco Inc., a corporation
incorporated under the laws of the Cayman Islands.
"OBLIGORS" means the Borrowers and the Guarantors.
"OCF" means, for any particular Fiscal Quarter, Net Income for such
Fiscal Quarter plus, to the extent deducted in determining Net Income,
the aggregate of
(a) Interest Expenses for such Fiscal Quarter;
(b) consolidated income tax expenses of Kinross Canada for such Fiscal
Quarter; and
(c) consolidated depreciation and amortization expenses and other
non-cash expenses of Kinross Canada for such Fiscal Quarter.
The calculation of OCF shall be adjusted for non-cash revenues and
expenses of Kinross Canada on a consolidated basis including, without
limitation, deferred revenue and the difference between accrued and cash
reclamation costs. In calculating OCF, there shall be excluded any
portion thereof that is attributable to the Companies' operations in
Russia until such time as the Lenders determine, in their sole and
absolute discretion, that the political and investment situation in
Russia is stable or other than such portion of OCF which is received by
the Borrowers as Domestic Cash.
"OFFICIAL BODY" means any national government or government of any
political subdivision thereof, or any agency, authority, board, central
bank, monetary authority, commission, department or instrumentality
thereof, or any court, tribunal, grand jury, mediator, arbitrator or
referee, whether foreign or domestic.
"ORDER" means an order, judgment, injunction or other determination
restricting payment by the Issuing Lender under or in accordance with a
Letter or extending the Issuing Lender's liability beyond the expiration
date stated therein.
"PBGC" means Pension Benefit Guaranty Corporation.
"PERMITTED DEBENTURES" means the 5.5% convertible unsecured subordinated
debentures of Kinross Canada maturing December 6, 2006.
"PERMITTED INDEBTEDNESS" means any one or more of the following:
(a) the Secured Obligations;
(b) Indebtedness between the Companies provided that Section 11.1(u)
has been complied with;
(c) Indebtedness arising under Capital Leases and Purchase Money
Indebtedness provided that the aggregate amount of such
Indebtedness incurred and outstanding at any time shall not exceed
U.S.$40,000,000;
(d) Indebtedness in respect of Hedging Agreements otherwise not
prohibited hereunder and incurred in the ordinary course of
business;
(e) trade payables and other accrued liabilities incurred in the
ordinary course of business and payable in accordance with
customary practices;
(f) Indebtedness of Fairbanks U.S. under the IRB Loan Agreements;
(g) the Permitted Debentures;
(h) Permitted Temporary LC Indebtedness;
(i) Non-Recourse Indebtedness; and
(j) any other Indebtedness provided that the aggregate amount of such
other Indebtedness incurred and outstanding at any time shall not
exceed U.S. $10,000,000.
"PERMITTED LIENS" means any one or more of the following with respect to
the property and assets of the Companies:
(a) Liens for taxes, assessments or governmental charges or levies not
at the time due or delinquent or the validity of which are being
contested in good faith by appropriate proceedings and as to which
reserves are being maintained in accordance with generally
accepted accounting principles so long as forfeiture of any part
of such property or assets will not result from the failure to pay
such taxes, assessments or governmental charges or levies during
the period of such contest;
(b) the Lien of any judgment rendered or the Lien of any claim filed
which is being contested in good faith by appropriate proceedings
and as to which reserves are being maintained in accordance with
generally accepted accounting principles so long as forfeiture of
any part of such property or assets will not result from the
failure to satisfy such judgment or claim during the period of
such contest;
(c) undetermined or inchoate Liens and charges incidental to
construction or current operations which have not at such time
been filed pursuant to law or which relate to obligations not due
or delinquent;
(d) restrictions, easements, rights-of-way, servitudes or other
similar rights in land granted to or reserved by other persons
which in the aggregate do not materially impair the usefulness, in
the operation of the business of any Company, of the property
subject to such restrictions, easements, rights-of-way, servitudes
or other similar rights in land granted to or reserved by other
persons;
(e) the right reserved to or vested in any municipality or
governmental or other public authority by the terms of any lease,
licence, franchise, grant or permit acquired by any Company or by
any statutory provision, to terminate any such lease, licence,
franchise, grant or permit, or to require annual or other payments
as a condition to the continuance thereof;
(f) the Lien resulting from the deposit of cash or securities (i) in
connection with contracts, tenders or expropriation proceedings,
or (ii) to secure workers' compensation, surety or appeal bonds,
costs of litigation when required by law and public and statutory
obligations, or (iii) in connection with the discharge of Liens or
claims incidental to construction and mechanics', warehouseman's,
carriers' and other similar liens;
(g) security given to a public utility or any municipality or
governmental or other public authority when required by such
utility or other authority in connection with the operations of
any Company, all in the ordinary course of business;
(h) the reservations, limitations, provisos and conditions, if any,
expressed in any original grants from the Crown or in comparable
grants, if any, in jurisdictions other than Canada;
(i) title defects or irregularities which are of a minor nature and in
the aggregate will not materially impair the use of the property
for the purpose for which it is held;
(j) applicable municipal and other governmental restrictions affecting
the use of land or the nature of any structures which may be
erected thereon, provided such restrictions have been complied
with and will not materially impair the use of the property for
the purpose for which it is held;
(k) Liens on minerals or the proceeds of sale of such minerals arising
or granted pursuant to a processing arrangement entered into in
the ordinary course and upon usual market terms, securing the
payment of a Company's portion of the fees, costs and expenses
attributable to the processing of such minerals under any such
processing arrangement, but only insofar as such Liens relate to
obligations which are at such time not past due;
(l) any other Lien satisfaction of which has been provided for by
deposit in escrow of cash or a surety bond in an amount not
exceeding $2,000,000 at any time;
(m) Liens to secure Non-Recourse Indebtedness provided that the assets
thereby encumbered are not related to mines that have commenced
operation as at the date hereof;
(n) Liens securing Indebtedness arising under Capital Leases and
Purchase Money Indebtedness to the extent such Indebtedness is
Permitted Indebtedness;
(o) royalties on the production or profits from mining which are in
existence on the date hereof or are granted or assumed on property
hereafter acquired in accordance with the terms hereof;
(p) Liens securing Permitted Temporary LC Indebtedness;
(q) Liens set out in the title opinions referred to in Section
12.2(c)(ix) to the extent approved in writing by the
Administrative Agent;
(r) Liens granted pursuant to the Security Documents; and
(s) the extension, renewal or refinancing of any Permitted Lien,
provided that the amount so secured does not exceed the original
amount secured immediately prior to such extension, renewal or
refinancing and the Lien is not extended to any additional
property.
"PERMITTED PORTFOLIO INVESTMENTS" means Cash Equivalents and short-term
portfolio investments made in accordance with the then current investment
policy of the Board of Directors of Kinross Canada or otherwise
acceptable to the Administrative Agent.
"PERMITTED TEMPORARY L/C INDEBTEDNESS" means Indebtedness in respect of
the existing letters of credit and surety bonds issued for the credit of
the Obligors, other than the Existing Letters (such letters of credit and
surety bonds being herein called the "Temporary Letters").
"PERSON" means any natural person, corporation, firm, partnership, joint
venture, joint stock company, incorporated or unincorporated association,
government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"PLAN" shall mean any pension plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA which is maintained for
employees of any ERISA Company.
"PLEDGED SUBSIDIARIES" means those Subsidiaries of Kinross Canada the
Shares of which are pledged to the Administrative Agent pursuant to a
Security Document.
"PPSA" means the PERSONAL PROPERTY SECURITY ACT (Ontario), as amended.
"POLLUTANT" means any pollutant, as defined by EPA.
"POSTPONEMENT AND SUBORDINATION UNDERTAKING" means the postponement and
subordination undertaking to be entered into by the Subsidiaries of
Kinross Canada (other than the Obligors) in favour of the Administrative
Agent pursuant to Section 11.1(u), in form and substance satisfactory to
the Administrative Agent as the same may be amended, modified,
supplemented or replaced from time to time.
"PREPAYMENT NOTICE" shall have the meaning ascribed thereto in Section
9.4.
"PRIME RATE" means the greater of (a) the variable rate of interest per
annum equal to the rate of interest determined by the Administrative
Agent from time to time as its prime rate of Canadian dollar loans made
by the Administrative Agent in Canada from time to time, being a variable
per annum reference rate of interest adjusted automatically upon change
by the Administrative Agent calculated on the basis of a year of 365 days
and (b) the sum of (A) the BA Rate for a Schedule I Lender for a
30 day term on the date of determination and (B) 5/8 of 1% per annum.
"PRIME RATE LOANS" means monies lent by the Canadian Lenders to a
Canadian Borrower hereunder in Canadian dollars and upon which interest
accrues at a rate referable to the Prime Rate.
"PROCEEDS OF REALIZATION" means all cash and non-cash proceeds derived
from any sale, disposition or other realization of the Secured Assets (i)
after any notice by the Administrative Agent to the Borrowers pursuant to
Section 13.1 declaring all indebtedness of the Borrowers hereunder to be
immediately due and payable, (ii) upon any dissolution, liquidation,
winding-up, reorganization, bankruptcy, insolvency or receivership of any
of the Obligors (or any other arrangement or marshalling of the Secured
Assets that is similar thereto) or (iii) upon the enforcement of, or any
action taken with respect to, any of the Security Documents, Guarantees
or Borrower Guarantees. For greater certainty, prior to the Security
becoming enforceable (x) insurance proceeds derived as a result of the
loss or destruction of any of the Secured Assets or (y) cash or non-cash
proceeds derived from any expropriation or other condemnation of any of
the Secured Assets shall not constitute Proceeds of Realization.
"PROJECTED PRODUCTION" means, as at the last day of any calendar month,
the aggregate projected production (consistent with the assumptions
contained in the annual budget delivered pursuant to Section
11.1(a)(vi)), expressed in ounces of gold, from the mines owned directly
or indirectly by the Obligors for the next 18 months.
"PROJECTED REALIZED PRICE" means, as at the last day of any calendar
month and with respect to the applicable Projected Production, the
average expected sale price per ounce of gold of such Projected
Production, where
(x) unhedged Projected Production is calculated at the trailing 30-day
average COMEX, first position closing price per ounce of gold; and
(y) hedged Projected Production is calculated at the hedged price per
ounce of gold determined in accordance with customary industry
standards.
For certainty, only hedged Projected Production which has been allocated
for delivery within the relevant 18 month period shall be included in the
calculation of Projected Realized Price.
"PRO RATA SHARE" means, at any particular time:
(a) with respect to a particular Canadian Lender, the ratio of the
Individual Commitment of the Lender which includes such Canadian
Lender at such time to the aggregate of the Individual Commitments
of all Lenders which include a Canadian Lender at such time; and
(b) with respect to a particular U.S. Lender, the Global Pro Rata
Share of the Lender which includes such U.S. Lender at such time;
except as otherwise provided in Section 3.10.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness assumed by any Company
as part of, or issued or incurred by any Company to pay or provide funds
to pay, all or a part of the purchase price of any equipment hereafter or
previously acquired by such Company.
"QUALIFIED RISK MANAGEMENT LENDER" means any Person that enters into a
Risk Management Agreement at a time when such Person is a Lender,
provided that such Person ceases to be a Qualified Risk Management Lender
if and when:
(a) such Person sells all of its rights and obligations under the
Credit Documents prior to the Termination Date; or
(b) the Termination Date and the Maturity Date have both occurred.
"RECEIVER" means a receiver, receiver and manager or other person having
similar powers or authority appointed by the Administrative Agent or by a
court at the instance of the Administrative Agent in respect of the
Secured Assets or any part thereof.
"RELEASE" means a "release", as such term is defined in CERCLA.
"RESERVES" means, at any particular time, the aggregate proven and
probable recoverable reserves of gold and silver to the extent of the
interest of the Obligors therein expressed in Gold Equivalent at mines
then in production (other than those located in Russia, Greece or
Zimbabwe) and otherwise acceptable to the Administrative Agent, acting
reasonably. For purposes of greater certainty, (x) recoverable reserves
shall be based upon the Fiscal Year end recoverable reserves as reported
by Kinross Canada to the Administrative Agent but may include additional
recoverable reserves which have been added subsequent to such Fiscal Year
end to the extent acceptable to the Majority Lenders, acting reasonably,
(y) recoverable reserves shall be decreased by the ounces of gold and
silver that form part of such recoverable reserves that have been
actually mined since the beginning of the subsequent Fiscal Year until
the time of determination, and (z) the recovery factor applied in
calculating recoverable reserves must be acceptable to the Majority
Lenders, acting reasonably.
"RISK MANAGEMENT AGREEMENTS" means any present or future swap, hedging,
foreign exchange or cash management agreement or other derivative
transaction entered in by any Borrower.
"ROLLING INTEREST EXPENSES" means:
(a) for the Fiscal Quarter ending June 30, 2003, Interest Expenses for
such Fiscal Quarter multiplied by four;
(b) for the Fiscal Quarter ending September 30, 2003, Interest
Expenses for such Fiscal Quarter and the immediately preceding
Fiscal Quarter multiplied by two;
(c) for the Fiscal Quarter ending December 31, 2003, Interest Expenses
for such Fiscal Quarter and the two immediately preceding Fiscal
Quarters multiplied by 4/3; and
(d) for each Fiscal Quarter thereafter, Interest Expenses for such
Fiscal Quarter and the three immediately preceding Fiscal
Quarters.
"ROLLING OCF" means:
(a) for the Fiscal Quarter ending June 30, 2003, OCF for such Fiscal
Quarter multiplied by four;
(b) for the Fiscal Quarter ending September 30, 2003, OCF for such
Fiscal Quarter and the immediately preceding Fiscal Quarter
multiplied by two;
(c) for the Fiscal Quarter ending December 31, 2003, OCF for such
Fiscal Quarter and the two immediately preceding Fiscal Quarters
multiplied by 4/3; and
(d) for each Fiscal Quarter thereafter, OCF for such Fiscal Quarter
and for the three immediately preceding Fiscal Quarters.
"ROLLOVER NOTICE" shall have the meaning ascribed thereto in Section 5.3.
"▇▇▇▇ ▇▇▇▇ DEPOSIT" means the real property owned by Fairbanks U.S. and
described as such in Schedule P hereto, together with all buildings and
structures thereon and appurtenances thereto.
"SALE LEASEBACK" shall mean any transaction or series of related
transactions pursuant to which the Borrowers or any of the Material
Subsidiaries (a) sells, transfers or otherwise disposes of any property,
real or personal, whether now owned or hereafter acquired, and (b) as
part of such transaction, thereafter rents or leases such property or
other property that it intends to use for substantially the same purpose
or purposes as the property being sold, transferred or disposed.
"SCHEDULE I LENDERS" means the Lenders that are listed in Schedule I to
the BANK ACT (Canada).
"SCHEDULE II LENDERS" means the Lenders that are listed in Schedule II to
the BANK ACT (Canada).
"SCHEDULE III LENDERS" means the Lenders that are listed in Schedule III
to the BANK ACT (Canada).
"SCHEDULE I REFERENCE LENDERS" means the Administrative Agent and up to
two other Schedule I Lenders, which other Schedule I Lenders shall be
acceptable to the Administrative Agent and Kinross Canada acting
reasonably.
"SCHEDULE II AND III REFERENCE LENDERS" means a reference group of up to
three Schedule II Lenders and Schedule III Lenders, the composition of
which shall be acceptable to the Administrative Agent and Kinross Canada
acting reasonably.
"SECURED ASSETS" means the property, assets and undertakings of the
Obligors in which the Administrative Agent has directly or indirectly
been granted a Lien pursuant to the Security Documents.
"SECURED OBLIGATIONS" shall mean all indebtedness, obligations and
liabilities, present or future, absolute or contingent, matured or not,
at any time owing by any of the Obligors to any of the Finance Parties,
or remaining unpaid to any of the Finance Parties, under or in connection
with any of the Finance Documents and Secured Obligations of a particular
Obligor shall mean all indebtedness, obligations and liabilities, present
or future, absolute or contingent, matured or not, at any time owing by
such Obligor to any of the Finance Parties, or remaining unpaid to any of
the Finance Parties, under or in connection with any of the Finance
Documents to which such Obligor is a party. For certainty, "Secured
Obligations" shall include interest accruing subsequent to the filing of,
or which would have accrued but for the filing of, a petition for
bankruptcy, in accordance with and at the rate (including any rate
applicable upon any Default or Event of Default to the extent lawful)
specified herein, whether or not such interest is an allowable claim in
such bankruptcy proceeding.
"SECURED RISK MANAGEMENT AGREEMENTS" means Risk Management Agreements
between a Borrower on the one hand and a Lender on the other hand (but
only for so long as such Lender remains a Qualified Risk Management
Lender).
"SECURITY" means the collateral security constituted by the Security
Documents.
"SECURITY DOCUMENTS" shall mean the security documents (as the same may
be amended, modified, supplemented, restated or replaced from time to
time) which, in the reasonable opinion of the Administrative Agent, are
required to be entered into from time to time by the Obligors in favour
of the Administrative Agent for the benefit of the Finance Parties in
order to grant directly or indirectly to the Administrative Agent a Lien
on all of the present and future property, assets and undertakings, both
real and personal, of the Obligors (other than any such property, assets
and undertaking located in Greece, Russia or Zimbabwe) as continuing
collateral security for the payment and performance of the Secured
Obligations, such security documents to be in form and substance
satisfactory to the Administrative Agent and to include, without
limitation, the security documents described in Schedule K. It is
understood that, if the Co-Lead Arrangers determine that it is
impractical to take security in a joint venture interest owned by an
Obligor, the Administrative Agent will, in any event, directly or
indirectly, be granted a security interest in all of the issued and
outstanding Shares of such Obligor by the Obligor which is the owner
thereof and in the entitlement of such Obligor to all distributions to
such Obligor with respect to such joint venture interest.
"SHARES", as applied to the shares of any corporation or other entity,
means the shares or other ownership interests of every class whether now
or hereafter authorized, regardless of whether such shares or other
ownership interests shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends
and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding-up of such corporation or other
entity.
"SIGNIFICANT MATERIAL SUBSIDIARY" means any direct or indirect Subsidiary
of Kinross Canada (other than the Greek, Russian and Zimbabwian
Subsidiaries) in respect of which:
(a) the product obtained by multiplying (i) the percentage of the
equity Shares of such Subsidiary directly or indirectly owned by
Kinross Canada by (ii) the gross revenues of such Subsidiary for
the most recently completed fiscal year of such Subsidiary, is
greater than or equal to U.S. $10,000,000 or the Canadian Dollar
Equivalent thereof; or
(b) the product obtained by multiplying (i) the percentage of the
equity Shares directly or indirectly owned by Kinross Canada by
(ii) the book value of the assets of such Subsidiary as at the
last day of the most recently completed fiscal year of such
Subsidiary, is greater than or equal to U.S. $10,000,000 or the
Canadian Dollar Equivalent thereof.
"S & P" means Standard & Poor's Ratings Service or any successor by
merger or consolidation to its business.
"SUBSIDIARY" means, with respect to any Person, any corporation, company
or other similar business entity (including, for greater certainty, a
Canadian chartered bank) of which more than fifty per cent (50%) of the
outstanding Shares or other equity interests (in the case of Persons
other than corporations) having ordinary voting power to elect a majority
of the board of directors or the equivalent thereof of such corporation,
company or similar business entity (irrespective of whether at the time
Shares of any other class or classes of the Shares of such corporation,
company or similar business entity shall or might have voting power upon
the occurrence of any contingency) is at the time directly or indirectly
owned by such
Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person.
"TANGIBLE NET WORTH" means, at any particular time, the amount of Equity
at such time less the aggregate of the amounts, at such time, which
would, in accordance with generally accepted accounting principles, be
classified upon the consolidated balance sheet of Kinross Canada as
goodwill, deferred expenses and other intangible assets. For purposes of
greater certainty, Tangible Net Worth shall include (without
duplication):
(i) the Amax Gold Inc. $3.75 Series B convertible preferred
shares in the amount of approximately U.S. $12,600,000; and
(ii) the Permitted Debentures;
and shall exclude (x) the redeemable retractable preference shares of
Kinross Canada in the amount of approximately U.S.$3,000,000 and (y)
equity in Non-Recourse Subsidiaries.
"TEMPORARY LETTERS" shall have the meaning ascribed thereto in the
definition of Permitted Temporary L/C Indebtedness.
"TERMINATION DATE" means the date on which all indebtedness, obligations
and liabilities owing by the Obligors to the Finance Parties or any of
them, or remaining unpaid to the Finance Parties or any of them, under
the Credit Agreement have been satisfied in full and the Credit Facility
has terminated pursuant to Section 2.4.
"TOTAL COMMITMENT AMOUNT" means, at any particular time, the aggregate of
the Individual Commitments of all of the Lenders at such time.
"TOTAL INDEBTEDNESS" means, at any particular time, the aggregate
Indebtedness of Kinross Canada on a consolidated basis. For purposes of
greater certainty, "Total Indebtedness" shall (x) exclude that portion of
the Cdn. $200,000,000 December 1996 subordinated convertible debentures
of Kinross Canada which, in accordance with generally accepted accounting
principles, would constitute indebtedness and (y) include the redeemable
retractable preference shares of Kinross Canada in the amount of
approximately U.S. $3,000,000.
"TRANSACTION" means the Combination and the concurrent JV Acquisition.
"TRUE NORTH DEPOSIT" means the real property owned by Fairbanks U.S.
described in Schedule Q hereto, together with all buildings and
structures thereon and appurtenances thereto.
"TVX BRAZIL" means TVX Participacoes Ltda., a corporation incorporated
under the laws of Brazil.
"TVX GOLD" means TVX Gold Inc., a corporation continued under the laws of
Canada.
"TVX CAYMAN" means TVX Cayman Inc., a corporation incorporated under the
laws of the Cayman Islands.
"TVX NEWMONT" means TVX Newmont Americas (Cayman) Inc., a corporation
incorporated under the laws of the Cayman Islands.
"TVX NEWMONT HOLDINGS" means TVX Newmont Americas (Cayman) Holdings Inc.,
a corporation incorporated under the lass of the Cayman Islands.
"UCC" means the Uniform Commercial Code of the State of Alaska, as
amended.
"UNDEVELOPED PORTION OF THE FORT ▇▇▇▇ MINE" means that portion of the
Fort ▇▇▇▇ Mine to which no proven and probable recoverable reserves of
gold and silver have been attributed by the Obligors.
"UNENCUMBERED DOMESTIC CASH BALANCE" means, at any particular time, the
aggregate amount of all Domestic Cash at such time which is not subject
to a Lien other than in favour of the Administrative Agent.
"U.S." and "UNITED STATES" means the United States of America.
"U.S. BORROWERS" means Kinross U.S.A., Fairbanks U.S., Round Mountain and
each Additional U.S. Borrower and "U.S. BORROWER" means any of the U.S.
Borrowers.
"U.S. BRANCH OF ACCOUNT" means the Atlanta Agency of the Administrative
Agent located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, or such other office of the Administrative Agent located in the
United States as Kinross Canada and the Administrative Agent may agree
upon.
"U.S. DOLLAR EQUIVALENT" means the relevant Exchange Equivalent in United
States dollars of any amount of Canadian dollars.
"U.S. LENDERS" means the financial institutions set out and described as
such in Schedule A, as amended from time to time.
"WASTE" means any waste, as defined by EPA.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E or Title IV of ERISA.
1.2 OTHER USAGES
References to "this agreement", "the agreement", "hereof", "herein",
"hereto" and like references refer to this Credit Agreement and not to any
particular Article, Section or other subdivision of this agreement. Any
references herein to any agreements or documents shall mean such agreements or
documents as amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.
1.3 PLURAL AND SINGULAR
Where the context so requires, words importing the singular number shall
include the plural and vice versa.
1.4 HEADINGS
The division of this agreement into Articles and Sections and the
insertion of headings in this agreement are for convenience of reference only
and shall not affect the construction or interpretation of this agreement.
1.5 CURRENCY
Unless otherwise specified herein, all statements of or references to
dollar amounts in this agreement shall mean lawful money of the United States.
1.6 APPLICABLE LAW
This agreement shall be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein. Any legal action or proceeding with respect to this agreement may be
brought in the courts of the Province of Ontario and, by execution and delivery
of this agreement, the parties hereby accept for themselves and in respect of
their property, generally and unconditionally, the non-exclusive jurisdiction of
the aforesaid courts. Each party irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
such party to the address prescribed by Section 15.1, such service to become
effective five Banking Days after such mailing. Nothing herein shall limit the
right of any party to serve process in any manner permitted by law or to
commence legal proceedings or otherwise proceed against any other party in any
other jurisdiction.
1.7 TIME OF THE ESSENCE
Time shall in all respects be of the essence of this agreement.
1.8 NON-BANKING DAYS
Subject to Section 7.4(c), whenever any payment to be made hereunder
shall be stated to be due or any action to be taken hereunder shall be stated to
be required to be taken on a day other than a Banking Day, such payment shall be
made or such action shall be taken on the
next succeeding Banking Day and, in the case of the payment of any amount, the
extension of time shall be included for the purposes of computation of interest,
if any, thereon.
1.9 CONSENTS AND APPROVALS
Whenever the consent or approval of a party hereto is required in a
particular circumstance, unless otherwise expressly provided for therein, such
consent or approval shall not be unreasonably withheld or delayed by such party.
1.10 AMOUNT OF CREDIT
Any reference herein to the amount of credit outstanding shall mean, at
any particular time:
(a) in the case of a Prime Rate Loan or a BA Rate Loan, the U.S.
Dollar Equivalent of the principal amount thereof;
(b) in the case of a LIBOR Loan, Base Rate Canada Loan or Base Rate
New York Loan, the principal amount thereof;
(c) in the case of a Bankers' Acceptance, the U.S. Dollar Equivalent
of the face amount thereof; and
(d) in the case of a Letter denominated in U.S. dollars, the
contingent liability of the Issuing Lender thereunder (or, if the
Letter is denominated in Canadian dollars, the U.S. Dollar
Equivalent of the contingent liability of the Issuing Lender
thereunder).
1.11 SCHEDULES
Each and every one of the schedules which is referred to in this
agreement and attached to this agreement shall form a part of this agreement.
1.12 EXTENSION OF CREDIT
For the purposes hereof, each drawdown, rollover and conversion shall be
deemed to be an extension of credit to the Borrowers hereunder.
1.13 JOINT AND SEVERAL OBLIGATIONS
All obligations hereunder which are stated to be obligations of the
Borrowers or any one of them to the Lenders shall, to the extent permitted by
applicable law, be joint and several obligations of the Borrowers. The
obligation of any Borrower (hereinafter, individually in this sentence, the
"first mentioned Borrower") with respect to its joint and several liability for
the credit extended to the other Borrowers shall not be wholly or partially
satisfied by such first mentioned Borrower repaying the credit extended to such
first mentioned Borrower hereunder. With respect to the joint and several
obligations of the Borrowers, the Lenders shall not be bound to exhaust their
recourse against any Borrower or others or any security or guarantees it may at
any time hold before being entitled to payment from any Borrower and each
Borrower renounces all benefits of discussion and division.
ARTICLE 2
CREDIT FACILITY
2.1 ESTABLISHMENT OF CREDIT FACILITY
Subject to the terms and conditions hereof, the Lenders hereby establish
in favour of the Borrowers a revolving credit facility (the "Credit Facility")
in the amount of U.S. $125,000,000 or the Canadian Dollar Equivalent thereof,
provided that the aggregate amount of outstanding credit extended to the
Canadian Borrowers shall not at any time exceed the lesser of (i) U.S.
$40,000,000 and (ii) the aggregate of the Individual Commitments of the Lenders
which include Canadian Lenders or the Canadian Dollar Equivalent of such lesser
amount.
2.2 LENDERS' COMMITMENTS
Subject to the terms and conditions hereof, the Lenders severally agree
to extend credit to the Borrowers under the Credit Facility from time to time
provided that the aggregate amount of credit extended by each Lender under the
Credit Facility shall not at any time exceed the Individual Commitment of such
Lender and further provided that the aggregate amount of credit outstanding
under the Credit Facility shall not at any time exceed the amount of the Credit
Facility. All credit requested under the Credit Facility shall be made available
to the relevant Borrower contemporaneously by all of the relevant Lenders. Each
Lender shall provide to the relevant Borrower its Pro Rata Share of each credit,
whether such credit is extended by way of drawdown, rollover or conversion. No
Lender shall be responsible for any default by any other Lender in its
obligation to provide its Pro Rata Share of any credit under the Credit Facility
nor shall the Individual Commitment of any Lender be increased as a result of
any such default of another Lender in extending credit under the Credit
Facility. The failure of any Lender to make available to the relevant Borrower
its Pro Rata Share of any credit under the Credit Facility shall not relieve any
other Lender of its obligation hereunder to make available to such Borrower its
Pro Rata Share of such credit under the Credit Facility.
2.3 REDUCTION OF CREDIT FACILITY
The Borrowers may, from time to time and at any time, by notice in
writing to the Administrative Agent, permanently reduce the Credit Facility in
whole or in part to the extent it is not being utilized at the time such notice
is given, provided that such reduction shall not become effective until five
Banking Days after such notice has been given. The amount of the Credit Facility
will be permanently reduced with respect to repayment made in accordance with
Section 9.1. Any repayment or prepayment of credit outstanding under the Credit
Facility (other than as set forth above) shall not cause a reduction in the
amount of the Credit Facility. Any repayment of outstanding credit which forms
part of any conversion from one type of credit to another type of credit under
Article 3 or Article 6 or of any rollover under Article 5 shall not cause any
reduction in the amount of the Credit Facility. Upon any reduction of the Credit
Facility, the Individual Commitment of each Lender with respect to the Credit
Facility shall
thereupon be reduced by an amount equal to such Lender's Global Pro Rata Share
of the amount of such reduction of the Credit Facility.
2.4 TERMINATION OF CREDIT FACILITY
(a) The Credit Facility shall terminate upon the earliest to occur of:
(i) the termination of the Credit Facility in accordance with
Section 13.1;
(ii) the date on which the Credit Facility has been permanently
reduced to zero pursuant to Section 2.3; and
(iii) the Maturity Date.
(b) Upon the termination of the Credit Facility, the right of the
Borrowers to obtain any credit thereunder and all of the
obligations of the Lenders to extend credit thereunder shall
automatically terminate.
ARTICLE 3
GENERAL PROVISIONS RELATING TO CREDITS
3.1 TYPES OF CREDIT AVAILMENTS
Subject to the terms and conditions hereof, the Borrowers may obtain
credit under the Credit Facility as follows:
(a) each Canadian Borrower may obtain credit under the Credit Facility
from the Canadian Lenders through the Canadian Branch of Account
by way of one or more Prime Rate Loans, Base Rate Canada Loans,
LIBOR Loans, Bankers' Acceptances and Letters; and
(b) each U.S. Borrower may obtain credit under the Credit Facility
from the U.S. Lenders through the U.S. Branch of Account by way of
one or more Base Rate New York Loans, LIBOR Loans and U.S. dollar
denominated Letters.
Any extension of credit hereunder by way of Prime Rate Loans shall be in a
minimum amount of Cdn. $1,000,000, by way of Base Rate Canada Loans or Base Rate
New York Loans shall be in a minimum amount of U.S. $1,000,000, by way of
Bankers' Acceptance or BA Rate Loan shall be in a minimum amount of Cdn.
$1,000,000 and by way of LIBOR Loans shall be in a minimum amount of U.S.
$1,000,000. Notwithstanding any other provision hereof, the availability of
credit under the Credit Facility shall be temporarily reduced from time to time
by the amount of the Permitted Temporary L/C Indebtedness from time to time
except to the extent that an extension of credit is by way of a Letter to be
used to replace a Temporary Letter.
3.2 FUNDING OF LOANS
Each Lender shall make available to the Administrative Agent its Pro Rata
Share of the principal amount of each Loan under the Credit Facility prior to
11:00 a.m. (Toronto time)
on the date of the extension of credit. The Administrative Agent shall, upon
fulfilment by the relevant Borrower of the terms and conditions set forth in
Article 12, make such funds available to such Borrower on the date of the
extension of credit by crediting the relevant Designated Account (or causing
such account to be credited) unless otherwise irrevocably authorized and
directed in the Drawdown Notice. Unless the Administrative Agent has been
notified by a Lender at least one Banking Day prior to the date of the extension
of credit that such Lender will not make available to the Administrative Agent
its Pro Rata Share of such Loan, the Administrative Agent may assume that such
Lender has made such portion of the Loan available to the Administrative Agent
on the date of the extension of credit in accordance with the provisions hereof
and the Administrative Agent may, in reliance upon such assumption, make
available to the relevant Borrower on such date a corresponding amount. If the
Administrative Agent has made such assumption, to the extent such Lender shall
not have so made its Pro Rata Share of the Loan available to the Administrative
Agent, such Lender agrees to pay to the Administrative Agent, forthwith on
demand, such Lender's Pro Rata Share of the Loan and all reasonable costs and
expenses incurred by the Administrative Agent in connection therewith together
with interest thereon at the then prevailing interbank rate for each day from
the date such amount is made available to the relevant Borrower until the date
such amount is paid or repaid to the Administrative Agent; provided, however,
that notwithstanding such obligation, if such Lender fails so to pay, the
relevant Borrower shall, without prejudice to any rights that such Borrower
might have against such Lender, repay such amount to the Administrative Agent
forthwith after demand therefor by the Administrative Agent. The amount payable
by each Lender to the Administrative Agent pursuant hereto shall be set forth in
a certificate delivered by the Administrative Agent to such Lender and the
relevant Borrower (which certificate shall contain reasonable details of how the
amount payable is calculated) and shall constitute PRIMA FACIE evidence of such
amount payable. If such Lender makes the payment to the Administrative Agent
required herein, the amount so paid shall constitute such Lender's Pro Rata
Share of the Loan for purposes of this agreement and shall entitle the Lender to
all rights and remedies against the relevant Borrower in respect of such Loan.
3.3 FAILURE OF LENDER TO FUND LOAN
If any Lender fails to make available to the Administrative Agent its Pro
Rata Share of any Loan under the Credit Facility as required (such Lender being
herein called the "Defaulting Lender") and the Administrative Agent has not
funded pursuant to Section 3.2, the Administrative Agent shall forthwith give
notice of such failure by the Defaulting Lender to the relevant Borrower and the
other relevant Lenders and such notice shall state that any relevant Lender may
make available to the Administrative Agent all or any portion of the Defaulting
Lender's Pro Rata Share of such Loan (but in no way shall any other Lender or
the Administrative Agent be obliged to do so) in the place and stead of the
Defaulting Lender. If more than one relevant Lender gives notice that it is
prepared to make funds available in the place and stead of a Defaulting Lender
in such circumstances and the aggregate of the funds which such Lenders (herein
collectively called the "Contributing Lenders" and individually called the
"Contributing Lender") are prepared to make available exceeds the amount of the
advance which the Defaulting Lender failed to make, then each Contributing
Lender shall be deemed to have given notice that it is prepared to make
available its pro rata share of such advance based on the Contributing Lenders'
relative commitments to advance in such circumstances. If any Contributing
Lender makes funds available in the place and stead of a
Defaulting Lender in such circumstances, then the Defaulting Lender shall pay to
any Contributing Lender making the funds available in its place and stead,
forthwith on demand, any amount advanced on its behalf together with interest
thereon at the then prevailing interbank rate for each day from the date of
advance to the date of payment, against payment by the Contributing Lender
making the funds available of all interest received in respect of the Loan from
the relevant Borrower. In addition to interest as aforesaid, the relevant
Borrower shall pay all amounts owing by the relevant Borrower to the Defaulting
Lender hereunder (with respect to the amounts advanced by the Contributing
Lenders on behalf of the Defaulting Lender) to the Contributing Lenders until
such time as the Defaulting Lender pays to the Administrative Agent for the
Contributing Lenders all amounts advanced by the Contributing Lenders on behalf
of the Defaulting Lender.
3.4 FUNDING OF BANKERS' ACCEPTANCES
(a) If the Administrative Agent receives from a Canadian Borrower a
Drawdown Notice, Rollover Notice or Conversion Notice requesting a
drawdown of, a rollover of or a conversion into Bankers'
Acceptances, the Administrative Agent shall notify each Canadian
Lender, prior to 11:00 a.m. (Toronto time) on the second Banking
Day prior to the date of such extension of credit of such request
and of each Canadian Lender's Pro Rata Share of such extension of
credit. The Administrative Agent shall also at such time notify
the relevant Borrower of each Canadian Lender's Pro Rata Share of
such extension of credit. Each Canadian Lender shall, not later
than 11:00 a.m. (Toronto time) on the date of each extension of
credit by way of Bankers' Acceptance, accept drafts of the
relevant Borrower which are presented to it for acceptance and
which have an aggregate face amount equal to such Canadian
Lender's Pro Rata Share of the total extension of credit being
made available by way of Bankers' Acceptances on such date, as
advised by the Administrative Agent. Each Canadian Lender shall
purchase the Bankers' Acceptances which it has accepted for a
purchase price equal to the BA Discounted Proceeds therefor. Each
Canadian Lender may at any time and from time to time hold, sell,
rediscount or otherwise dispose of any and all Bankers'
Acceptances accepted and purchased by it.
(b) The relevant Borrower shall provide for payment to the accepting
Canadian Lenders of the face amount of each Bankers' Acceptance at
its maturity, either by payment of such amount or through an
extension of credit hereunder or through a combination of both.
The relevant Borrower hereby waives presentment for payment of
Bankers' Acceptances by the Canadian Lenders and any defence to
payment of amounts due to a Canadian Lender in respect of a
Bankers' Acceptance which might exist by reason of such Bankers'
Acceptance being held at maturity by such Canadian Lender which
accepted it and agrees not to claim from such Canadian Lender any
days of grace for the payment at maturity of Bankers' Acceptances.
(c) In the case of a drawdown by way of Bankers' Acceptance, each
Canadian Lender shall, forthwith after the acceptance of drafts of
the relevant Borrower as aforesaid, make available to the
Administrative Agent the BA Proceeds with
respect to the Bankers' Acceptances accepted by it. The
Administrative Agent shall, upon fulfilment by the relevant
Borrower of the terms and conditions set forth in Article 12, make
such BA Proceeds available to the relevant Borrower on the date of
such extension of credit by crediting the applicable Designated
Account. In the case of a rollover of or conversion into Bankers'
Acceptances, each Canadian Lender shall retain the Bankers'
Acceptance accepted by it and shall not be required to make any
funds available to the Administrative Agent for deposit to the
applicable Designated Account; however, forthwith after the
acceptance of drafts of the relevant Borrower as aforesaid, the
relevant Borrower shall pay to the Administrative Agent on behalf
of the Canadian Lenders an amount equal to the aggregate amount of
the acceptance fees in respect of such Bankers' Acceptances
calculated in accordance with Section 7.5 plus the amount by which
the aggregate face amount of such Bankers' Acceptances exceeds the
aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers' Acceptance may, at the option of the relevant
Borrower, be executed in advance by or on behalf of the relevant
Borrower, by mechanically reproduced or facsimile signatures of
any two officers of the relevant Borrower who are properly so
designated and authorized by the relevant Borrower from time to
time. Any Bankers' Acceptance so executed and delivered by the
relevant Borrower to the Canadian Lenders shall be valid and shall
bind the relevant Borrower and may be dealt with by the Canadian
Lenders to all intents and purposes as if the Bankers' Acceptance
had been signed in the executing officers' own handwriting.
(e) Each relevant Borrower shall notify the Canadian Lenders as to
those officers whose signatures may be reproduced and used to
execute Bankers' Acceptances in the manner provided in Section
3.4(d). Bankers' Acceptances with the mechanically reproduced or
facsimile signatures of designated officers may be used by the
Canadian Lenders and shall continue to be valid, notwithstanding
the death, termination of employment or termination of
authorization of either or both of such officers or any other
circumstance.
(f) The Borrowers hereby indemnify and agree to hold harmless the
Canadian Lenders against and from all losses, damages, expenses
and other liabilities caused by or attributable to the use of the
mechanically reproduced or facsimile signature instead of the
original signature of an authorized officer of a Canadian Borrower
on a Banker's Acceptance prepared, executed, issued and accepted
pursuant to this agreement, except to the extent determined by a
court of competent jurisdiction to be due to the gross negligence
or wilful misconduct of the Canadian Lenders.
(g) Each Canadian Lender agrees that, in respect of the safekeeping of
executed drafts of the Canadian Borrowers which are delivered to
it for acceptance hereunder, it shall exercise the same degree of
care which it gives to its own property, provided that it shall
not be deemed to be an insurer thereof.
(h) All Bankers' Acceptances to be accepted by a particular Canadian
Lender shall, at the option of such Canadian Lender, be issued in
the form of depository bills made payable originally to and
deposited with The Canadian Depository for Securities Limited
pursuant to the DEPOSITORY BILLS AND NOTES ACT (Canada).
(i) In order to facilitate the issuance of Bankers' Acceptances
pursuant to this agreement, each Canadian Borrower hereby
authorizes each Canadian Lender, and appoints each Canadian Lender
as such Borrower's attorney, to complete, sign and endorse drafts
or depository bills (each such executed draft or ▇▇▇▇ being herein
referred to as a "BA Draft" on its behalf in handwritten form or
by facsimile or mechanical signature or otherwise in accordance
with the applicable Drawdown Notice, Rollover Notice or Conversion
Notice and, once so completed, signed and endorsed to accept them
as Bankers' Acceptances under this agreement and then if
applicable, purchase, discount or negotiate such Bankers'
Acceptances in accordance with the provisions of this agreement.
BA Drafts so completed, signed, endorsed and negotiated on behalf
of such Borrower by such Lender shall bind such Borrower as fully
and effectively as if so performed by an authorized officer of
such Borrower. Each draft of a Bankers' Acceptance completed,
signed or endorsed by a Canadian Lender shall mature on the last
day of the term thereof.
3.5 BA RATE LOANS
If, in the sole judgement of a Canadian Lender, such Canadian Lender is
unable to extend credit by way of Bankers' Acceptances in accordance with this
agreement, such Canadian Lender shall give an irrevocable notice to such effect
to the Administrative Agent and the relevant Canadian Borrower prior to 10:00
a.m. (Toronto time) on the date of the requested credit extension and shall make
available to such Canadian Borrower prior to 11:00 a.m. (Toronto time) on the
date of such requested credit extension a Canadian dollar loan (a "BA Rate
Loan") in the principal amount equal to such Canadian Lender's Pro Rata Share of
the total credit to be extended by way of Bankers' Acceptances, such BA Rate
Loan to be funded in the same manner as a Loan is funded pursuant to Section 3.2
and 3.3. Such BA Rate Loan shall have the same term as the Bankers' Acceptances
for which it is a substitute and shall bear such rate of interest per annum
throughout the term thereof as shall permit such Canadian Lender to obtain the
same effective rate as if such Canadian Lender had accepted and purchased a
Bankers' Acceptance at the same acceptance fee and pricing at which a Schedule
II Lender would have accepted and purchased such Bankers' Acceptance at
approximately 11:00 a.m. (Toronto time) on the date such BA Rate Loan is made,
on the basis that, and each Canadian Borrower hereby agrees that, for such a BA
Rate Loan, interest shall be payable in advance on the date of the extension of
credit by the relevant Canadian Lender deducting the interest payable in respect
thereof from the principal amount of such BA Rate Loan. All BA Rate Loans to be
made by a particular Canadian Lender shall, at the option of such Canadian
Lender, be evidenced by a promissory note in the form of a depository note made
payable originally to and deposited with The Canadian Depository for Securities
Limited pursuant to the DEPOSITORY BILLS AND NOTES ACT (Canada).
3.6 TIMING OF CREDIT AVAILMENTS
No Bankers' Acceptance, BA Rate Loan or LIBOR Loan under the Credit
Facility may have a maturity date later than the Maturity Date.
3.7 INABILITY TO FUND U.S. DOLLAR ADVANCES IN CANADA
If a Canadian Lender determines in good faith, which determination shall
be final, conclusive and binding on the Canadian Borrowers, and the
Administrative Agent notifies the Canadian Borrowers that (i) by reason of
circumstances affecting financial markets inside or outside Canada, deposits of
United States dollars are unavailable to such Canadian Lender in Canada, (ii)
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided in the definition of LIBOR or Alternate Base Rate
Canada, as the case may be, (iii) the making or continuation of United States
dollar advances in Canada has been made impracticable by the occurrence of a
contingency (other than a mere increase in rates payable by such Canadian Lender
to fund the advance) which materially and adversely affects the funding of the
advances at any interest rate computed on the basis of the LIBOR or the
Alternate Base Rate Canada, as the case may be, or by reason of a change in any
applicable law or government regulation, guideline or order (whether or not
having the force of law but, if not having the force of law, one with which a
responsible Canadian chartered bank would comply) or in the interpretation
thereof by any Official Body affecting such Canadian Lender or any relevant
financial market, which results in LIBOR or the Alternative Base Rate Canada, as
the case may be, no longer representing the effective cost to such Canadian
Lender of deposits in such market for a relevant Interest Period, or (iv) any
change to present law or any future law, regulation, order, treaty or official
directive (whether or not having the force of law but, if not having the force
of law, one with which a responsible Canadian chartered bank would comply) or
any change therein or any interpretation or application thereof by any Official
Body has made it unlawful for such Canadian Lender to make or maintain or give
effect to its obligations in respect of United States dollar advances in Canada
as contemplated herein, then
(a) the right of the Canadian Borrowers to obtain any affected Base
Rate Canada Loan or LIBOR Loan from such Canadian Lender shall be
suspended until such Canadian Lender determines that the
circumstances causing such suspension no longer exist and such
Canadian Lender so notifies the Canadian Borrowers;
(b) if any affected Base Rate Canada Loan or LIBOR Loan is not yet
outstanding, any applicable Drawdown Notice shall be cancelled and
the advance requested therein shall not be made;
(c) if any LIBOR Loan is already outstanding at any time when the
right of the Canadian Borrowers to obtain credit by way of a LIBOR
Loan is suspended, it shall, subject to the Canadian Borrowers
having the right to obtain credit by way of a Base Rate Canada
Loan at such time, be converted on the last day of the Interest
Period applicable thereto (or on such earlier date as may be
required to comply with any applicable law) to a Base Rate Canada
Loan in the principal amount equal to the principal amount of the
LIBOR Loan or, if the Canadian Borrowers do not have the right to
obtain credit by way of a Base Rate Canada
Loan at such time, such LIBOR Loan shall be converted on the last
day of the Interest Period applicable thereto (or on such earlier
date as may be required to comply with any applicable law) to a
Prime Rate Loan in the principal amount equal to the Canadian
Dollar Equivalent of the principal amount of such LIBOR Loan; and
(d) if any Base Rate Canada Loan is already outstanding at any time
when the right of the Canadian Borrowers to obtain credit by way
of a Base Rate Canada Loan is suspended, it shall, subject to the
Canadian Borrowers having the right to obtain credit by way of a
LIBOR Loan at such time, be immediately converted to a LIBOR Loan
in the principal amount equal to the principal amount of the Base
Rate Canada Loan and having an Interest Period of one month or, if
the Canadian Borrowers do not have the right to obtain credit by
way of a LIBOR Loan at such time, it shall be immediately
converted to a Prime Rate Loan in the principal amount equal to
the Canadian Dollar Equivalent of the principal amount of the Base
Rate Canada Loan.
3.8 INABILITY TO FUND LIBOR LOAN IN THE UNITED STATES
If a U.S. Lender determines in good faith, which determination shall be
final, conclusive and binding on the U.S. Borrowers, and the Administrative
Agent notifies the U.S. Borrowers that (i) adequate and fair means do not exist
for ascertaining the interest rate on the basis provided in the definition of
LIBOR, (ii) the making or continuation of LIBOR Loans in the United States has
been made impracticable by the occurrence of a contingency (other than a mere
increase in rates payable by such U.S. Lender to fund the advance) which
materially and adversely affects the funding of the advances at any interest
rate computed on the basis of LIBOR, or by reason of a change since the date
hereof in any applicable law or government regulation, guideline or order
(whether or not having the force of law but, if not having the force of law, one
with which a responsible U.S. commercial bank would comply) or in the
interpretation thereof by any Official Body affecting such U.S. Lender or any
relevant financial market, which results in LIBOR no longer representing the
effective cost to such Lender of deposits in such market for a relevant Interest
Period, or (iii) any change to present law or any future law, regulation, order,
treaty or official directive (whether or not having the force of law but, if not
having the force of law, one with which a responsible U.S. commercial bank would
comply) or any change therein or any interpretation or application thereof by
any Official Body has made it unlawful for such U.S. Lender to make or maintain
or give effect to its obligations in respect of LIBOR Loans in the United States
as contemplated herein, then
(a) the right of the U.S. Borrowers to obtain any credit in United
States dollars by way of LIBOR Loans, shall be suspended until
such U.S. Lender determines, acting reasonably, that the
circumstances causing such suspension no longer exist and such
U.S. Lender so notifies the U.S. Borrowers;
(b) if any credit in United States dollars by way of LIBOR Loans is
not yet outstanding, any applicable Drawdown Notice shall be
cancelled and the advance requested therein shall not be made; and
(c) if any LIBOR Loan is already outstanding at any time when the
right of the U.S. Borrowers to obtain credit by way of a LIBOR
Loan is suspended, it shall, subject to the U.S. Borrowers having
the right to obtain credit by way of a U.S. Base Rate Loan at such
time, be converted to a U.S. Base Rate Loan on the last day of the
Interest Period applicable thereto (or on such earlier date as may
be required to comply with any applicable law).
In the event that any of the events listed above results in a limitation of the
amount of loans made by such U.S. Lender which can bear interest at LIBOR or the
amount of LIBOR Loans which such U.S. Lender can make in the United States, such
U.S. Lender agrees to use good faith to allocate, in reasonable fashion, the
available amounts amongst its borrowers as is reasonably practicable.
3.9 TIME AND PLACE OF PAYMENTS
Unless otherwise expressly provided herein, the Borrowers shall make all
payments pursuant to this agreement or pursuant to any document, instrument or
agreement delivered pursuant hereto by deposit to the applicable Designated
Account before 12:00 noon (Toronto time) on the day specified for payment and
the Administrative Agent shall be entitled to withdraw the amount of any payment
due to the Administrative Agent or the Lenders hereunder from such accounts on
the day specified for payment.
3.10 REMITTANCE OF PAYMENTS
Forthwith after the withdrawal from the applicable Designated Account by
the Administrative Agent of any payment of principal, interest, fees or other
amounts for the benefit of the relevant Lenders pursuant to Section 3.9, the
Administrative Agent shall, subject to Sections 3.3 and 8.3 remit to each
relevant Lender, in immediately available funds, such Lender's Pro Rata Share of
such payment (except to the extent such payment results from a Loan with respect
to which a Lender had failed, pursuant to Section 3.2, to make available to the
Administrative Agent its Pro Rata Share and, where any other Lender has made
funds available in the place and stead of a Defaulting Lender); provided that if
the Administrative Agent, on the assumption that it will receive, on any
particular date, a payment of principal (including, without limitation, a
prepayment), interest, fees or other amount under the Credit Facility, remits to
each relevant Lender its Pro Rata Share of such payment and the relevant
Borrower fails to make such payment, each relevant Lender agrees to repay to the
Administrative Agent, forthwith on demand, to the extent that such amount is not
recovered from the relevant Borrower on demand and after reasonable efforts by
the Administrative Agent to collect such amount (without in any way obligating
the Administrative Agent to take any legal action with respect to such
collection), such Lender's Pro Rata Share of the payment made to it pursuant
hereto together with interest thereon at the then prevailing interbank rate for
each day from the date such amount is remitted to the relevant Lenders until the
date such amount is paid or repaid to the Administrative Agent, the exact amount
of the repayment required to be made by the relevant Lenders pursuant hereto to
be as set forth in a certificate delivered by the Administrative Agent to each
relevant Lender, which certificate shall constitute prima facie evidence of such
amount of repayment. Notwithstanding the foregoing, with respect to any standby
fees paid to the Administrative Agent for the benefit of the U.S. Lenders
pursuant to Section 7.6, the Pro Rata Share with respect to
each U.S. Lender which has a related Canadian Lender shall be calculated on the
basis that (i) such Lender's Individual Commitment shall be the amount of such
Lender's Individual Commitment otherwise determined hereunder less the amount of
outstanding credit extended to the Canadian Borrowers hereunder by the related
Canadian Lender and (ii) the Total Commitment Amount shall be adjusted
accordingly.
3.11 EVIDENCE OF INDEBTEDNESS
The Administrative Agent shall maintain accounts wherein the
Administrative Agent shall record the amount of credit outstanding, each payment
of principal and interest on account of each Loan, each Bankers' Acceptance
accepted and cancelled, each Letter issued and draw upon and all other amounts
becoming due to and being paid to the Lenders or the Administrative Agent
hereunder, including acceptance fees, Letter fees and standby fees. The
Administrative Agent's accounts constitute, in the absence of manifest error,
PRIMA FACIE evidence of the indebtedness of the Borrowers pursuant to this
agreement.
3.12 GENERAL PROVISIONS RELATING TO ALL LETTERS
(a) Each relevant Borrower hereby acknowledges and confirms to the
Issuing Lender that the Issuing Lender shall not be obliged to
make any inquiry or investigation as to the right of any
beneficiary to make any claim or Draft or request any payment
under a Letter and payment by the Issuing Lender pursuant to a
Letter shall not be withheld by the Issuing Lender by reason of
any matters in dispute between the beneficiary thereof and such
Borrower. The sole obligation of the Issuing Lender with respect
to Letters is to cause to be paid a Draft drawn or purporting to
be drawn in accordance with the terms of the applicable Letter and
for such purpose the Issuing Lender is only obliged to determine
that the Draft purports to comply with the terms and conditions of
the relevant Letter.
(b) The Issuing Lender shall not have any responsibility or liability
for or any duty to inquire into the form, sufficiency (other than
to the extent provided in the preceding paragraph), authorization,
execution, signature, endorsement, correctness (other than to the
extent provided in the preceding paragraph), genuineness or legal
effect of any Draft, certificate or other document presented to it
pursuant to a Letter and each relevant Borrower unconditionally
assumes all risks with respect to the same. Each relevant Borrower
agrees that it assumes all risks of the acts or omissions of the
beneficiary of any Letter with respect to the use by such
beneficiary of the relevant Letter.
(c) The obligations of each relevant Borrower hereunder with respect
to Letters shall be absolute, unconditional and irrevocable and
shall not be reduced by any event or occurrence including, without
limitation:
(i) any lack of validity or enforceability of this agreement or
any such Letter;
(ii) any amendment or waiver of or any consent to departure from
this agreement;
(iii) the existence of any claim, set-off, defense or other
rights which such Borrower may have at any time against any
beneficiary or any transferee of any such Letter (or any
person or entities for whom any such beneficiary or any
such transferee may be acting), any Lender, the Issuing
Lender or any other person or entity;
(iv) any Draft, statement or other document presented under any
such Letter proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever;
(v) payment by the Issuing Lender under such Letter against
presentation of a sight draft or certificate which does not
comply with the terms of such Letter;
(vi) any non-application or misapplication by the beneficiary of
such Letter of the proceeds of any drawing under such
Letter;
(vii) the surrender or impairment of any Security; or
(viii) any reduction or withdrawal of the Issuing Lender's credit
rating by any rating agency.
The obligations of each relevant Borrower hereunder with respect
to Letters shall remain in full force and effect and shall apply
to any amendment to or extension of the expiration date of any
such Letter.
(d) Any action, inaction or omission taken or suffered by the Issuing
Lender or any of the Issuing Lender's correspondents under or in
connection with a Letter or any Draft made thereunder, if in good
faith and in conformity with foreign or domestic laws, regulations
or customs applicable thereto, shall be binding upon the relevant
Borrower and shall not place the Issuing Lender or any of its
correspondents under any resulting liability to such Borrower.
Without limiting the generality of the foregoing, the Issuing
Lender and its correspondents may receive, accept or pay as
complying with the terms of a Letter, any Draft thereunder,
otherwise in order which may be signed by, or issued to, the
administrator or any executor of, or the trustee in bankruptcy of,
or the receiver for any property of, or other person or entity
acting as the representative or in the place of, such beneficiary
or its successors and assigns. Each relevant Borrower covenants
that it will not take any steps, issue any instructions to the
Issuing Lender or any of its correspondents or institute any
proceedings intended to derogate from the right or ability of the
Issuing Lender or its correspondents to honour and pay any Draft
or Drafts.
(e) Each relevant Borrower agrees that the Lenders, the Issuing Lender
and the Administrative Agent shall have no liability to it for any
reason in respect of or in connection with any Letter, the
issuance thereof, any payment thereunder, or any other action
taken by the Lenders, the Issuing Lender or the Administrative
Agent
or any other person in connection therewith, other than on account
of the Issuing Lender's gross negligence or wilful misconduct.
(f) The Uniform Customs and Practice for Documentary Credits as most
recently published by the International Chamber of Commerce (the
"UCP") shall in all respects apply to each Letter and shall be
deemed for such purpose to be a part hereof as if fully
incorporated herein. In the event of any conflict between the UCP
and the laws of any jurisdiction specified in the relevant Letter,
the UCP shall prevail to the extent necessary to remove the
conflict.
3.13 NOTICE PERIODS
Each Drawdown Notice, Rollover Notice, Conversion Notice and Prepayment
Notice shall be given to the Administrative Agent:
(a) prior to 10:00 a.m. (Toronto time) on the third Banking Day prior
to the date of any voluntary prepayment or the date of a drawdown
of, rollover of, conversion into or conversion of a Bankers'
Acceptance, LIBOR Loan or the issuance of a Letter; and
(b) prior to 10:00 a.m. (Toronto time) on the second Banking Day prior
to the date of any other drawdown, rollover or conversion.
3.14 ADMINISTRATIVE AGENT'S DISCRETION TO ALLOCATE
Notwithstanding the provisions of Section 3.2, 3.4(a) and 9.5(b) with
respect to the funding of Loans and Bankers' Acceptances and reimbursing with
respect to Letters in accordance with each relevant Lender's Pro Rata Share, the
Administrative Agent shall be entitled to reallocate the funding or
reimbursement obligations among the relevant Lenders in order to ensure, to the
greatest extent practicable, that after such funding the aggregate amount of
credit extended hereunder by each Lender coincides with such Lender's Pro Rata
Share of the aggregate amount of credit extended hereunder by all of the
Lenders, provided that no such allocation shall result in the aggregate amount
of credit extended hereunder by any Lender exceeding such Lender's Individual
Commitment.
ARTICLE 4
DRAWDOWNS
4.1 DRAWDOWN NOTICE
Subject to Sections 3.1, 3.7 and 3.8 and provided that all of the
applicable conditions precedent set forth in Article 12 have been fulfilled by
the Borrowers or waived by the relevant Lenders as provided in Section 14.14,
any Borrower may, from time to time, obtain credit hereunder by giving to the
Administrative Agent an irrevocable notice in substantially the form of Schedule
E hereto ("Drawdown Notice") in accordance with Section 3.13 and specifying
(a) the applicable Borrower;
(b) the date the credit is to be obtained;
(c) whether the credit is to be obtained by way of Prime Rate Loan,
Base Rate Canada Loan, Base Rate New York Loan, LIBOR Loan,
Bankers' Acceptance or Letter;
(d) in the case of any credit to be obtained by way of a Loan, the
principal amount of the Loan;
(e) if the credit is to be obtained by way of LIBOR Loan, the
applicable Interest Period;
(f) if the credit is to be obtained by way of Bankers' Acceptances,
the aggregate face amount of the Bankers' Acceptances to be issued
and the term of the Bankers' Acceptances;
(g) if the credit is to be obtained by way of Letter, the named
beneficiary of the Letter, the maturity date and amount of the
Letter, the currency in which the Letter is to be denominated and
all other terms of the Letter (including, without limitation, (i)
the proposed form of the Letter and (ii) if the Letter is to be
issued on behalf of a Subsidiary of the applicable Borrower as
well as on behalf of the applicable Borrower, the name of such
Subsidiary); and
(h) the details of any irrevocable authorization and direction
pursuant to Section 3.2.
If credit is to be obtained by way of Letter and if such Letter is to be issued
on behalf of a Subsidiary of the applicable Borrower as well as on behalf of the
applicable Borrower, such Borrower shall ensure that accompanying such Drawdown
Notice is an instrument, substantially in the form of Schedule I hereto, and
pursuant to which such Subsidiary shall agree, without qualification, to
reimburse the Issuing Lender on demand for the full amount of each and any Draft
presented to and paid by the Issuing Lender in accordance with such Letter.
ARTICLE 5
ROLLOVERS
5.1 BANKERS' ACCEPTANCES
Provided that the relevant Canadian Borrower has, by giving notice to the
Administrative Agent in accordance with Section 5.3, requested the Canadian
Lenders to accept its drafts to replace all or a portion of outstanding Bankers'
Acceptances as they mature, each Canadian Lender shall, on the maturity of such
Bankers' Acceptances and concurrent with the payment by the relevant Canadian
Borrower to such Canadian Lender of the face amount of such Bankers' Acceptances
or the portion thereof to be replaced, accept the relevant Canadian Borrower's
draft or drafts having an aggregate face amount equal to its Pro Rata Share of
the aggregate face amount of the matured Bankers' Acceptances or the portion
thereof to be replaced in accordance with Section 3.4.
5.2 LIBOR LOANS
Subject to Sections 3.7 and 3.8 and provided that the relevant Borrower
has, by giving notice to the Administrative Agent in accordance with Section
5.3, requested the relevant Lenders to continue to extend credit by way of a
LIBOR Loan to replace all or a portion of an outstanding LIBOR Loan as it
matures, each relevant Lender shall, on the maturity of such LIBOR Loan,
continue to extend credit to such Borrower by way of a LIBOR Loan (without a
further advance of funds to such Borrower) in the principal amount equal to such
Lender's Pro Rata Share of the principal amount of the matured LIBOR Loan or the
portion thereof to be replaced.
5.3 ROLLOVER NOTICE
The notice to be given to the Administrative Agent pursuant to Section
5.1 or 5.2 ("Rollover Notice") shall be irrevocable, shall be given in
accordance with Section 3.13, shall be in substantially the form of Schedule F
hereto and shall specify: (a) the applicable Borrower; (b) the maturity date of
the maturing Bankers' Acceptances or the maturing LIBOR Loan, as the case may
be; (c) the face amount of the maturing Bankers' Acceptances or the principal
amount of the maturing LIBOR Loan, as the case may be, and the portion thereof
to be replaced; (d) in the case of a maturing LIBOR Loan, the Interest Period or
Interest Periods of the replacement LIBOR Loans; and (e) in the case of maturing
Bankers' Acceptances, the aggregate face amount of the new Bankers' Acceptances
to be issued and the term of the new Bankers' Acceptances.
ARTICLE 6
CONVERSIONS
6.1 CONVERTING LOAN TO OTHER TYPE OF LOAN
Subject to Sections 3.1, 3.7 and 3.8 and provided that the relevant
Borrower has, by giving notice to the Administrative Agent in accordance with
Section 6.4, requested the relevant Lenders to convert all or a portion of an
outstanding Loan (other than a BA Rate Loan) into another type of Loan (other
than a BA Rate Loan), each relevant Lender shall, on the date of conversion
(which, in the case of the conversion of all or a portion of an outstanding
LIBOR Loan, shall be the date on which such Loan matures), continue to extend
credit to such Borrower by way of the type of Loan into which the outstanding
Loan or a portion thereof is converted (with a repayment and a subsequent
advance of funds to such Borrower) in the aggregate principal amount equal to
such Lender's Pro Rata Share of the principal amount or the Exchange
Equivalent of the principal amount, as the case may be, of the outstanding Loan
or the portion thereof which is being converted.
6.2 CONVERTING LOAN TO BANKERS' ACCEPTANCES
Provided that the relevant Canadian Borrower has, by giving notice to the
Administrative Agent in accordance with Section 6.4, requested the Canadian
Lenders to accept its drafts to replace all or a portion of an outstanding Loan
and, if a LIBOR Loan or a BA Rate Loan is to be replaced the date of conversion
is the date on which such Loan matures, each Canadian Lender shall, on the date
of conversion and concurrent with the payment by the relevant Canadian Borrower
to each Canadian Lender of the principal amount of such outstanding Loan or the
portion thereof which is being converted, accept the relevant Canadian
Borrower's draft or drafts having an aggregate face amount equal to its Pro Rata
Share of the aggregate principal amount of such Loan or the portion thereof
which is being converted or the Canadian Dollar Equivalent thereof, as the case
may be, such acceptance to be in accordance with Section 3.4.
6.3 CONVERTING BANKERS' ACCEPTANCES TO LOAN
Each Canadian Lender shall, on the maturity date of a Bankers' Acceptance
which such Canadian Lender has accepted, pay to the holder thereof the face
amount of such Bankers' Acceptance. Subject to Sections 3.1, 3.7 and 3.8 and
provided that the relevant Canadian Borrower has, by giving notice to the
Administrative Agent in accordance with Section 6.4, requested the Canadian
Lenders to convert all or a portion of outstanding maturing Bankers' Acceptances
into a Loan, each Canadian Lender shall, upon the maturity date of such Bankers'
Acceptances and the payment by such Canadian Lender to the holders of such
Bankers' Acceptances of the aggregate face amount thereof and concurrent with
the payment by the relevant Canadian Borrower to such Canadian Lender of the
aggregate face amount of such Bankers' Acceptances, extend credit to the
relevant Canadian Borrower by way of the Loan into which the matured Bankers'
Acceptances or a portion thereof are converted in the aggregate principal amount
equal to its Pro Rata Share of the aggregate face amount or the U.S. Dollar
Equivalent of the aggregate face amount, as the case may be, of the matured
Bankers' Acceptances or the portion thereof which are being converted. Where a
particular Canadian Lender has funded the relevant Canadian Borrower by way of a
BA Rate Loan rather than by way of Bankers' Acceptances, the provisions of this
Section 6.3 as they relate to Bankers' Acceptances shall apply mutatis mutandis
to such BA Rate Loan.
6.4 CONVERSION NOTICE
The notice to be given to the Administrative Agent pursuant to Section
6.1, 6.2 or 6.3 ("Conversion Notice") shall be irrevocable, shall be given in
accordance with Section 3.13, shall be in substantially the form of Schedule G
hereto and shall specify:
(a) the applicable Borrower;
(b) whether an outstanding Loan or Bankers' Acceptances are to be
converted and, if an outstanding Loan is to be converted, the type
of Loan to be converted;
(c) the date on which the conversion is to take place;
(d) the face amount of the Bankers' Acceptances or the portion thereof
which is to be converted or the principal amount of the Loan or
the portion thereof which is to be converted;
(e) the type and amount of the Loan or Bankers' Acceptances into which
the outstanding Loan or Bankers' Acceptances are to be converted;
(f) if an outstanding Loan or Bankers' Acceptances are to be converted
into a LIBOR Loan, the applicable Interest Period; and
(g) if an outstanding Loan is to be converted into Bankers'
Acceptances, the aggregate face amount of the new Bankers'
Acceptances to be issued and the term of the new Bankers'
Acceptances.
6.5 ABSENCE OF NOTICE
Subject to Sections 3.7 and 3.8, in the absence of a Rollover Notice or
Conversion Notice within the appropriate time periods referred to herein, a
maturing LIBOR Loan in favour of a Canadian Borrower shall be automatically
converted to a Base Rate Canada Loan, a maturing LIBOR Loan in favour of a U.S.
Borrower shall automatically be converted to a Base Rate New York Loan and a
maturing Bankers' Acceptance or BA Rate Loan shall be automatically converted to
a Prime Rate Loan as though a notice to such effect had been given in accordance
with Section 6.4.
6.6 CONVERSION BY LENDERS
Upon written notice to such effect to the relevant Borrower at such time
as a Default has occurred and is continuing, the Administrative Agent may, on
the maturity date of a Bankers' Acceptance, BA Rate Loan or a LIBOR Loan,
convert such Bankers' Acceptance or BA Rate Loan into a Prime Rate Loan, convert
such LIBOR Loan in favour of a Canadian Borrower into a Base Rate Canada Loan
and convert such LIBOR Loan in favour of a U.S. Borrower into a Base Rate New
York Loan as though a notice to such effect had been given in accordance with
Section 6.4.
ARTICLE 7
INTEREST AND FEES
7.1 INTEREST RATES
The Borrowers shall pay to the relevant Lenders, in accordance with
Section 3.9, interest on the outstanding principal amount from time to time of
each Loan (other than a BA Rate Loan) and on overdue interest thereon, at the
rate per annum equal to:
(a) in the case of each Prime Rate Loan, the Prime Rate plus the
Applicable Rate;
(b) in the case of each Base Rate Canada Loan, the Alternate Base Rate
Canada plus the Applicable Rate;
(c) in the case of each Base Rate New York Loan, the Alternate Base
Rate New York plus the Applicable Rate;
(d) in the case of each LIBOR Loan in favour of a Canadian Borrower,
LIBOR plus the Applicable Rate; and
(e) in the case of each LIBOR Loan in favour of a U.S. Borrower, LIBOR
(Reserve Adjusted) plus the Applicable Rate.
7.2 CALCULATION AND PAYMENT OF INTEREST
(a) Interest on the outstanding principal amount from time to time of
each Prime Rate Loan and on overdue interest thereon shall accrue
from day to day from and including the date on which credit is
obtained by way of such Loan or on which such overdue interest is
due, as the case may be, to but excluding the date on which such
Loan or overdue interest, as the case may be, is repaid in full
(both before and after maturity and as well after as before
judgment) and shall be calculated on the basis of the actual
number of days elapsed divided by 365.
(b) Interest on the outstanding principal amount from time to time of
each LIBOR Loan, Base Rate Canada Loan and Base Rate New York Loan
and on overdue interest thereon shall accrue from day to day from
and including the date on which credit is obtained by way of such
Loan or on which such overdue interest is due, as the case may be,
to but excluding the date on which such Loan or overdue interest,
as the case may be, is repaid in full (both before and after
maturity and as well after as before judgment) and shall be
calculated on the basis of the actual number of days elapsed
divided by 360.
(c) Accrued interest shall be paid,
(i) in the case of interest on Prime Rate Loans, Base Rate
Canada Loans and Base Rate New York Loans, monthly in
arrears on the 22nd day of each calendar month; and
(ii) in the case of interest on LIBOR Loans, on the last day of
the applicable Interest Period; provided that, in the case
of Interest Periods of a duration longer than three months,
accrued interest shall be paid no less frequently than
every three months from the first day of such Interest
Period during the term of such Interest Period and on the
date on which such LIBOR Loans are otherwise required to be
repaid.
7.3 GENERAL INTEREST RULES
(a) For the purposes hereof, whenever interest is calculated on the
basis of a year of 360 or 365 days, each rate of interest
determined pursuant to such calculation
expressed as an annual rate for the purposes of the INTEREST ACT
(Canada) is equivalent to such rate as so determined multiplied by
the actual number of days in the calendar year in which the same
is to be ascertained and divided by 360 or 365 days, respectively.
(b) Interest on each Loan and on overdue interest thereon shall be
payable in the currency in which such Loan is denominated during
the relevant period.
(c) If a Borrower fails to pay any fee or other amount of any nature
payable by it to the Administrative Agent or the Lenders hereunder
(other than principal or interest) or under any document,
instrument or agreement delivered pursuant hereto on the due date
therefor, such Borrower shall pay to the Administrative Agent or
the relevant Lenders, as the case may be, interest on such overdue
amount in the same currency as such overdue amount is payable from
and including such due date to but excluding the date of actual
payment (as well after as before judgment) at the rate per annum,
calculated and compounded monthly, which is equal to:
(i) the Alternate Base Rate Canada plus 3% in the case of
overdue amounts denominated in U.S. dollars; and
(ii) the Prime Rate plus 3% in the case of all other overdue
amounts.
Such interest on overdue amounts shall become due and be paid on demand made by
the Administrative Agent.
7.4 SELECTION OF INTEREST PERIODS
With respect to each LIBOR Loan, the applicable Borrower shall specify in
the Drawdown Notice, Rollover Notice or Conversion Notice, the duration of the
Interest Period provided that:
(a) Interest Periods shall have a duration from one, two, three or six
months (subject to availability and to the aggregate number of
Interest Periods with different dates outstanding being less than
ten (10));
(b) the first Interest Period for a LIBOR Loan shall commence on and
include the day on which credit is obtained by way of such Loan
and each subsequent Interest Period applicable thereto shall
commence on and include the date of the expiry of the immediately
preceding Interest Period applicable thereto; and
(c) if any Interest Period would end on a day which is not a Banking
Day, such Interest Period shall be extended to the next succeeding
Banking Day unless such next succeeding Banking Day falls in the
next calendar month, in which case such Interest Period shall be
shortened to end on the immediately preceding Banking Day.
7.5 ACCEPTANCE FEES
(a) Upon the acceptance of any draft of a Canadian Borrower under the
Credit Facility pursuant hereto, such Borrower shall pay to the
Canadian Lenders, in the manner provided herein, in advance, an
acceptance fee calculated at the rate per annum, on the basis of a
year of 365 days, equal to the Applicable Rate on the face amount
of such Bankers' Acceptance for its term, being the actual number
of days in the period commencing on the date of acceptance of such
Borrower's draft and ending on but excluding the maturity date of
the Bankers' Acceptance; provided, however, that such fee shall
not be less than Cdn. $200 with respect to any single transaction
involving the issuance of one or more Bankers' Acceptances.
(b) With respect to each drawdown by way of Bankers' Acceptances, such
acceptance fees shall be paid by the Canadian Lenders deducting
the amount thereof from the BA Discounted Proceeds before
advancing the BA Proceeds to the Administrative Agent as provided
in Section 3.4(c). With respect to each rollover or conversion
into Bankers' Acceptances, such acceptance fees shall be paid by
the relevant Borrower to the Administrative Agent as provided in
Section 3.4(c). Each such payment is non-refundable and fully
earned when due.
7.6 STANDBY FEE
Upon the first Banking Day following the completion of each Fiscal
Quarter and on the termination of the Credit Facility, the Borrowers shall pay
to the U.S. Lenders, in arrears, a standby fee calculated at the rate per annum,
on the basis of a year of 365 days, equal to the Applicable Rate on the
Available Credit, such fee to accrue daily from the date of the execution and
delivery of this agreement to and including the date of payment.
7.7 LETTER FEES
(a) The relevant Borrower shall pay to the relevant Lenders, in
accordance with Section 3.9, an issuance fee in advance on the
date each Letter is issued and on the first day of each Fiscal
Quarter thereafter, calculated at a rate per annum equal to the
Applicable Rate on the basis of a year of 365 days and on the
amount of each such Letter for a period of time equal to the
number of days to the next payment date. Also, on the first day of
each Fiscal Quarter, there shall be an adjustment for issuance
fees paid in advance with respect to Letters which expired or were
cancelled during the immediately preceding Fiscal Quarter. In
addition, with respect to all Letters, the relevant Borrower shall
from time to time pay to the Issuing Lender its usual and
customary fees (at the then prevailing rates) for the amendment,
delivery and administration of letters of credit such as the
Letters. Each such payment is non-refundable and fully earned when
due.
(b) With respect to each Letter issued hereunder, the relevant
Borrower shall pay to the Issuing Lender, in accordance with
Section 3.9, a fronting fee quarterly in advance on the date each
Letter is issued or renewed and on the first day of each
Fiscal Quarter thereafter, calculated at a rate of 0.15% per annum
on that portion of the amount of each such Letter for which
Lenders other than the Issuing Lender have agreed to reimburse the
Issuing Lender for any amounts drawn hereunder and for a period of
time equal to its term or the next quarterly payment date,
whichever occurs first. Each such payment is non-refundable and
fully earned when due.
7.8 APPLICABLE RATE ADJUSTMENT
The changes in the Applicable Rate shall be effective as of the first day
of the applicable Fiscal Quarter, in each case based upon the compliance
certificate contemplated under Section 11.1(a)(iii) that has previously been
delivered to the Administrative Agent with respect to the second immediately
preceding Fiscal Quarter. If a new Applicable Rate becomes effective during the
term of an outstanding Bankers' Acceptance, BA Rate Loan, LIBOR Loan or Letter,
the Administrative Agent shall forthwith determine the amount of any overpayment
or underpayment of acceptance fees with respect to such Bankers' Acceptances,
interest with respect to such BA Rate Loan or LIBOR Loan or issuance fees with
respect to such Letters and notify the Borrowers and the Lenders of such
amounts. Such determination by the Administrative Agent shall constitute, in the
absence of manifest error, PRIMA FACIE evidence of the amount of such
overpayment or underpayment, as the case may be. In the event of an
underpayment, the Borrowers shall, upon receipt of such notice, pay to the
relevant Lenders in accordance with Section 3.9, the amount of such
underpayment. In the event of any overpayment, the amount of such overpayment
shall be credited to succeeding payments of acceptance fees, interest or
issuance fees, as the case may be, as they become due until such amount has been
fully applied.
ARTICLE 8
RESERVE, CAPITAL, INDEMNITY AND TAX PROVISIONS
8.1 CONDITIONS OF CREDIT
The obtaining or maintaining of credit hereunder shall be subject to the
terms and conditions contained in this Article 8.
8.2 CHANGE OF CIRCUMSTANCES
If, with respect to any type of credit, the introduction or adoption of
any law, regulation, guideline, request or directive (whether or not having the
force of law) of any governmental authority, central bank or comparable agency
("Restraint") or any change therein or in the application thereof to any
Borrower or to any Lender or in the interpretation or administration thereof or
any compliance by any Lender therewith:
(a) prohibits or restricts extending or maintaining such type of
credit or the charging of interest or fees in connection
therewith, such Borrower agrees that such Lender shall have the
right to comply with such Restraint, shall have the right to
refuse to permit such Borrower to obtain such type of credit and
shall have the right to require, at the option of such Borrower,
the conversion of such outstanding credit to another type of
credit to permit compliance with the Restraint or repayment in
full of such credit together with accrued interest thereon on the
last day on which it is lawful for such Lender to continue to
maintain and fund such credit or to charge interest or fees in
connection therewith, as the case may be; or
(b) shall impose or require any reserve, special deposit requirements
or tax (excluding taxes measured with reference to the net income
of such Lender or capital taxes or receipts and franchise taxes),
shall establish an appropriate amount of capital to be maintained
by such Lender or shall impose any other requirement or condition
which results in an increased cost to such Lender of extending or
maintaining a credit or obligation hereunder or reduces the amount
received or receivable by such Lender with respect to any credit
under this agreement or reduces such Lender's effective return
hereunder or on its capital or causes such Lender to make any
payment or to forego any return based on any amount received or
receivable hereunder, then, on notification to such Borrower by
such Lender, such Borrower shall pay immediately to such Lender
such amounts as shall fully compensate such Lender for all such
increased costs, reductions, payments or foregone returns which
accrue up to and including the date of receipt by such Borrower of
such notice and thereafter, upon demand from time to time, such
Borrower shall pay such additional amount as shall fully
compensate such Lender for any such increased or imposed costs,
reductions, payments or foregone returns. Such Lender shall notify
the relevant Borrower of any actual increased or imposed costs,
reductions, payments or foregone returns forthwith on becoming
aware of same and shall concurrently provide to such Borrower a
certificate of an officer of such Lender setting forth the amount
of compensation to be paid to such Lender and the basis for the
calculation of such amount. Notwithstanding this Section 8.2(b),
no Borrower shall be liable to compensate such Lender for any such
cost, reduction, payment or foregone return occurring more than 60
days before receipt by such Borrower of the aforementioned
notification from such Lender; provided, however, that the
aforementioned limitation shall not apply to any such cost,
reduction, payment or foregone return of a retroactive nature.
8.3 FAILURE TO FUND AS A RESULT OF CHANGE OF CIRCUMSTANCES
If any Lender but not all of the Lenders who have Individual Commitments
seeks additional compensation pursuant to Section 8.2(b) (the "Affected
Lender"), then the relevant Borrowers may indicate to the Administrative Agent
in writing that they desire to replace the Affected Lender with one or more of
the other relevant Lenders, and the Administrative Agent shall then forthwith
give notice to the other relevant Lenders that any such Lender or Lenders may,
in the aggregate, advance all (but not part) of the Affected Lender's Pro Rata
Share of the affected credit and, in the aggregate, assume all (but not part) of
the Affected Lender's Individual Commitments and obligations under the Credit
Facility and acquire all (but not part) of the rights of the Affected Lender and
assume all (but not part) of the obligations of the Affected Lender under each
of the other Credit Documents to the extent they relate to the Credit Facility
(but in no event shall any other relevant Lender or the Administrative Agent be
obliged to do so). If one or more relevant Lenders shall so agree in writing
(herein collectively called the "Assenting Lenders" and individually called an
"Assenting Lender") with respect to such advance, acquisition and assumption,
the Pro Rata Share of such credit of each Assenting Lender
and the Individual Commitments and the obligations of such Assenting Lender
under the Credit Facility and the rights and obligations of such Assenting
Lender under each of the other Credit Documents to the extent they relate to the
Credit Facility shall be increased by its respective pro rata share (based on
the relative Individual Commitments of the Assenting Lenders) of the Affected
Lender's Pro Rata Share of such credit and Individual Commitments and
obligations under the Credit Facility and rights and obligations under each of
the other Credit Documents to the extent they relate to the Credit Facility on a
date mutually acceptable to the Assenting Lenders and the relevant Borrower. On
such date, the Assenting Lenders shall extend to the relevant Borrower the
Affected Lender's Pro Rata Share of such credit and shall prepay to the Affected
Lender the advances of the Affected Lender then outstanding, together with all
interest accrued thereon and all other amounts owing to the Affected Lender
hereunder, and, upon such advance and prepayment by the Assenting Lenders, the
Affected Lender shall cease to be a "Lender" for purposes of this agreement and
shall no longer have any obligations hereunder, subject always to its continuing
obligations pursuant to Section 9.5. Upon the assumption of the Affected
Lender's Individual Commitments as aforesaid by an Assenting Lender, Schedule A
hereto shall be deemed to be amended to increase the Individual Commitment of
such Assenting Lender by the respective amounts of such assumption.
8.4 INDEMNITY RELATING TO CREDITS
Upon notice from the Administrative Agent to the relevant Borrower (which
notice shall be accompanied by a detailed calculation of the amount to be paid
by such Borrower), such Borrower shall pay to the Administrative Agent or the
relevant Lenders such amount or amounts as will compensate the Administrative
Agent or the relevant Lenders (including, for certainty, the Issuing Lender) for
any loss, cost or expense incurred by them:
(a) in the liquidation or redeposit of any funds acquired by the
relevant Lenders to fund or maintain any portion of a LIBOR Loan
or a BA Rate Loan as a result of:
(i) the failure of such Borrower to borrow or make repayments
on the dates specified under this agreement or in any
notice from such Borrower to the Administrative Agent
(provided that if any notice specifies the repayment of a
LIBOR Loan or a BA Rate Loan at any time other than its
maturity date, then such Borrower shall be responsible for
any loss, costs or expenses referred to above); or
(ii) the repayment or prepayment of any amounts on a day other
than the payment dates prescribed herein or in any notice
from such Borrower to the Administrative Agent (provided
that if any notice specifies the repayment of a LIBOR Loan
or a BA Rate Loan at any time other than its maturity date,
then such Borrower shall be responsible for any loss, costs
or expenses referred to above); or
(b) with respect to any Bankers' Acceptance or Letter, arising from
claims or legal proceedings, and including reasonable legal fees
and disbursements, respecting the collection of amounts owed by
such Borrower hereunder in respect of such Bankers' Acceptance or
Letter or the enforcement of the Administrative Agent or
the Lenders' rights hereunder in respect of such Bankers'
Acceptance or Letter including, without limitation, legal
proceedings attempting to restrain the Administrative Agent or the
Lenders from paying any amount under such Bankers' Acceptance or
Letter.
8.5 INDEMNITY FOR TRANSACTIONAL AND ENVIRONMENTAL LIABILITY
(a) The Borrowers hereby agree to indemnify and hold the
Administrative Agent, each Lender, the Issuing Lender and each of
their respective shareholders, officers, directors, employees, and
agents (collectively, the "Indemnified Parties") free and harmless
from and against any and all claims, demands, actions, causes of
action, suits, losses, costs, charges, liabilities and damages,
and expenses in connection therewith (irrespective of whether such
Indemnified Party is a party to the action for which
indemnification hereunder is sought), and including, without
limitation, reasonable legal fees and out of pocket disbursements
and amounts paid in settlement which are approved by the Borrowers
(collectively in this Section 8.5(a), the "Indemnified
Liabilities"), incurred or suffered by, or asserted against, the
Indemnified Parties or any of them as a result of, or arising out
of, or relating to (i) the extension of credit contemplated
herein, (ii) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any
credit extended hereunder, (iii) any actual or threatened
investigation, litigation or other proceeding relating to any
credit extended or proposed to be extended as contemplated herein
or (iv) the execution, delivery, performance or enforcement of the
Credit Documents and any instrument, document or agreement
executed pursuant hereto, except for any such Indemnified
Liabilities that a court of competent jurisdiction determined
arose on account of the relevant Indemnified Party's gross
negligence or willful misconduct.
(b) Without limiting the generality of the indemnity set out in the
preceding clause (a), the Borrowers hereby further agree to
indemnify and hold the Indemnified Parties free and harmless from
and against any and all claims, demand, actions, causes of action,
suits, losses, costs, charges, liabilities and damages, and
expenses in connection therewith, including, without limitation,
reasonable legal fees and out of pocket disbursements and amounts
paid in settlement which are approved by the Borrowers, of any and
every kind whatsoever paid (collectively in this Section 8.5(b),
the "Indemnified Liabilities"), incurred or suffered by, or
asserted against, the Indemnified Parties or any of them for, with
respect to, or as a direct or indirect result of, (i) the presence
on or under, or the escape, seepage, leakage, spillage, discharge,
emission or release from, any real property legally or
beneficially owned (or any estate or interest which is owned),
leased, used or operated by any Company of any Hazardous Material,
Contaminant, Pollutant or Waste, and (ii) any other violation of
an Environmental Law by any Company, and regardless of whether
caused by, or within the control of, such Company, except for any
such Indemnified Liabilities that a court of competent
jurisdiction determined arose on
account of the relevant Indemnified Party's gross negligence or
willful misconduct.
(c) All obligations provided for in this Section 8.5 shall survive
indefinitely the permanent repayment of the outstanding credit
hereunder and the termination of the Credit Agreement. The
obligations provided for in this Section 8.5 shall not be reduced
or impaired by any investigation made by or on behalf of the
Administrative Agent or any of the Lenders.
(d) The Borrowers hereby agree that, for the purposes of effectively
allocating the risk of loss placed on the Borrowers by this
Section 8.5, the Administrative Agent and each Lender shall be
deemed to be acting as the agent or trustee on behalf of and for
the benefit of their respective shareholders, officers, directors,
employees and agents.
(e) If, for any reason, the obligations of the Borrowers pursuant to
this Section 8.5 shall be unenforceable, the Borrowers agree to
make the maximum contribution to the payment and satisfaction of
each obligation that is permissible under applicable law.
8.6 PAYMENTS FREE AND CLEAR OF TAXES
Any and all payments made hereunder or under any other Credit Document by
any Borrower to or for the benefit of the Administrative Agent, the Lenders or
any of them ("Applicable Payments") shall be made free and clear of, and without
deduction for, any and all present or future taxes, levies, imposts, deductions,
charges, fees, duties or withholding or other charges of any nature imposed by
any taxing authority, and all liabilities with respect thereto, imposed by any
jurisdiction (the "Applicable Jurisdiction") as a consequence or result of any
action taken by such Borrower, including the making of any Applicable Payment
but excluding, in the case of the Administrative Agent, the Lenders or any of
them, taxes imposed on its net income or capital taxes or receipts and franchise
taxes (all such non-excluded taxes, levies, imposts, deductions, charges, fees,
duties, withholdings and liabilities being hereinafter referred to as "Taxes").
If any Borrower shall be required by law to deduct any Taxes from or in respect
of any Applicable Payment to the Administrative Agent, the Lenders or any of
them, the sum so payable to the Administrative Agent, the Lenders or any of them
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.6) the Administrative Agent, the Lenders or any of them receives
an amount equal to the sum it would have received had no such deductions been
made. Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements and obligations of the Borrowers contained in this
Section 8.6 shall survive indefinitively the permanent repayment of the
outstanding credit hereunder and the termination of the Credit Agreement. This
Section 8.6 shall not apply, unless an Event of Default has occurred and is
continuing, with respect to any payment made hereunder or under any other Credit
Document by a Canadian Borrower to or for the benefit of the Administrative
Agent or a particular Lender if the Administrative Agent or such Lender, as the
case may be, is not a resident of Canada for the purposes of the INCOME TAX ACT
(Canada) or with respect to any payment made hereunder or under any other Credit
Document by a U.S. Borrower to or for the
benefit of the Administrative Agent or a particular Lender if the Administrative
Agent or such Lender, as the case may be, is not a "United States Person" as
defined in Section 7701(a)(30) of the Internal Revenue Code (United States) (a
"Non-U.S. Lender") and fails to provide two duly completed copies of either (x)
Internal Revenue Service Form W-8BEN or applicable successor form claiming
eligibility of the Non-U.S. Lender for benefits of an income tax treaty to which
the United States is a party, (y) Internal Revenue Service Form W-8ECI or
applicable successor form, or (z) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in clause (x) or (y), Internal
Revenue Service Form W-8BEN or applicable successor form and a certificate of a
duly authorized officer of such Non-U.S. Lender to the effect that such Non-U.S.
Lender is not (A) a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (B) a "10 percent shareholder" of any U.S. Borrower within the meaning of
Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
ARTICLE 9
REPAYMENTS AND PREPAYMENTS
9.1 REPAYMENTS
The Borrowers shall repay to the Lenders in full the outstanding credit
under the Credit Facility on the Maturity Date together with all accrued and
unpaid interest thereon and all accrued and unpaid fees with respect thereto. As
concerns any Letter which, on the Maturity Date, has an expiry date later than
the Maturity Date, the Borrowers shall pay to the Issuing Lender, on the
Maturity Date, the then contingent liability of the Issuing Lender thereunder
(to be held solely for the purpose of satisfying any draw under such Letter and
to be held subject to Section 13.2). Following such payment by the Borrowers to
the Issuing Lender, the Borrowers shall have no further liability to the Lenders
with respect to any such Letter.
9.2 EXTENSION OF MATURITY DATE
Kinross Canada may request, by written request given to the
Administrative Agent (the "Extension Request") not earlier than August 31st of
each year nor later than September 30th of each year, that this agreement be
amended to extend the then current Maturity Date to a date one year later than
the then current Maturity Date (the "Extension Amendment"). A copy of the
Extension Request shall be provided by the Administrative Agent to each Lender
in accordance with Section 14.18. Each Lender shall notify the Administrative
Agent as to whether or not it irrevocably consents to the Extension Amendment
within 30 days following receipt of the Extension Request, which consent shall
be in such Lender's full and absolute discretion. If any Lender does not provide
such notice within such time, such Lender shall be deemed to have not consented
to the Extension Amendment. Where the Extension Request has been consented to by
all of the Lenders, then on the 30th day following the receipt of the Extension
Request, the then current Maturity Date shall be extended one additional year;
otherwise, the then current Maturity Date shall not be extended.
9.3 VOLUNTARY PREPAYMENTS UNDER CREDIT FACILITY
Subject to Section 9.4, the Borrowers shall be entitled to prepay all or
any portion of the outstanding Loans under the Credit Facility (other than the
prepayment of Bankers' Acceptances or BA Rate Loans on any day other than the
last day of their term) at any time, without penalty, provided that Section
8.4(a) shall be complied with in connection with any such prepayment. Amounts
which are prepaid as aforesaid may be reborrowed.
9.4 PREPAYMENT NOTICE
The Borrowers shall give written notice to the Administrative Agent of
each voluntary prepayment pursuant to Section 9.3. Such notice (a "Prepayment
Notice") shall be irrevocable, shall be given in accordance with Section 3.13
and shall specify:
(a) the date on which the prepayment is to take place; and
(b) the type and principal amount of the Loan or the portion thereof
which is to be prepaid.
9.5 REIMBURSEMENT OR CONVERSION ON PRESENTATION OF LETTERS
(a) On presentation of a Letter and payment thereunder by the Issuing
Lender, the relevant Borrower shall forthwith pay to the
Administrative Agent for the account of the Issuing Lender, and
thereby reimburse the Issuing Lender for, all amounts paid by the
Issuing Lender pursuant to such Letter; failing such payment, the
relevant Borrower shall be deemed to have effected a conversion of
such Letter into a Base Rate Canada Loan (if such Letter was
denominated in U.S. dollars and issued on behalf of and at the
request of a Canadian Borrower), a Base Rate New York Loan (if
such Letter was denominated in U.S. dollars and issued on behalf
of and at the request of a U.S. Borrower) or a Prime Rate Loan (if
such Letter was denominated in Canadian dollars) to the extent of
the payment of the Issuing Lender thereunder.
(b) If the Issuing Lender makes payment under any Letter and the
relevant Borrower does not fully reimburse the Issuing Lender on
or before the date of payment, then Section 9.5(a) shall apply to
deem a Loan to be outstanding to the relevant Borrower under this
agreement in the manner therein set out. Each relevant Lender
shall, on request by the Issuing Lender, immediately pay to the
Issuing Lender an amount equal to such Lender's Pro Rata Share of
the amount paid by the Issuing Lender such that each relevant
Lender is participating in the deemed Loan in accordance with its
Pro Rata Share.
(c) Each relevant Lender shall immediately on demand indemnify the
Issuing Lender to the extent of such Lender's Pro Rata Share of
any amount paid or liability incurred by the Issuing Lender under
each Letter issued by it to the extent that the relevant Borrower
does not fully reimburse the Issuing Lender therefor.
(d) For certainty, the obligations in this Section 9.5 shall continue
as obligations of the Persons who were Lenders at the time each
such Letter was issued notwithstanding that such Lender may assign
its rights and obligations hereunder, unless the Issuing Lender
specifically releases such Lender from such obligations in writing
or consents to such assignment pursuant to Section 15.5(c).
9.6 LETTERS SUBJECT TO AN ORDER
Subject to Section 13.2, the relevant Borrower shall pay to the Issuing
Lender an amount equal to the maximum amount available to be drawn under any
unexpired Letter which becomes the subject of any Order; payment in respect of
each such Letter shall be due forthwith upon demand.
9.7 CURRENCY OF REPAYMENT
All payments and repayments of outstanding credit hereunder shall be made
in the currency of such outstanding credit.
9.8 REPAYMENTS OF CREDIT EXCESS
The Borrowers shall repay to the relevant Lenders on demand the amount of
any Credit Excess. Each such repayment shall first be applied to repay
outstanding Prime Rate Loans, Base Rate Canada Loans and Base Rate New York
Loans as selected by Kinross Canada and, to the extent that the amount of such
repayment exceeds the aggregate amount of credit outstanding by way of such
Loans which have been repaid, shall then be deposited by the Administrative
Agent in a segregated account and held in trust for the relevant Lenders to be
applied to repay outstanding BA Rate Loans or LIBOR Loans or to satisfy
reimbursement obligations with respect to outstanding Bankers' Acceptances or
Letters as such Loans or Bankers' Acceptances mature or as such Letters are
drawn upon, as the case may be.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.1 REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Administrative Agent to enter into this
agreement and to induce the Lenders to extend credit hereunder, the Borrowers
hereby represent and warrant to the Lenders and the Administrative Agent, as of
the date of this agreement, as of the date of each extension of credit hereunder
and as of the last day of each Fiscal Quarter, as follows and acknowledge and
confirm that the Lenders and the Administrative Agent are relying upon such
representations and warranties in entering into this agreement and in extending
credit hereunder:
(a) STATUS AND POWER OF OBLIGORS. Each Obligor is a corporation duly
incorporated and organized and validly subsisting in good standing
under the laws of its jurisdiction of incorporation. Each Obligor
is duly qualified, registered or licensed in all jurisdictions
where such qualification, registration or licensing is required.
Each Obligor has all requisite corporate capacity, power and
authority
to own, hold under licence or lease its properties, to carry on
its business as now conducted and to otherwise enter into, and
carry out the transactions contemplated by, the Credit Documents
to which is a party.
(b) AUTHORIZATION AND ENFORCEMENT. All necessary action, corporate or
otherwise, has been taken to authorize the execution, delivery and
performance by each Obligor of the Credit Documents to which it is
a party. Each Obligor has duly executed and delivered the Credit
Documents to which it is a party. The Credit Documents to which
each Obligor is a party are legal, valid and binding obligations
of such Obligor, enforceable against such Obligor in accordance
with its terms, except to the extent that the enforceability
thereof may be limited by (i) applicable bankruptcy, insolvency,
moratorium, reorganization and other laws of general application
limiting the enforcement of creditors' rights generally, (ii) the
fact that the courts may deny the granting or enforcement of
equitable remedies and (iii) the fact that, pursuant to the
CURRENCY ACT (Canada), no court in Canada may make an order
expressed in any currency other than lawful money of Canada.
(c) COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance by each Obligor of the Credit Documents to which it is
a party, and the consummation of the transactions contemplated
herein and therein, do not and will not conflict with, result in
any material breach or violation of, or constitute a material
default under, the terms, conditions or provisions of the charter
or constating documents or by-laws of, or any shareholder
agreement or declaration relating to, such Obligor or of any law,
regulation, judgment, decree or order binding on or applicable to
such Obligor or to which its property is subject or of any
material agreement, lease, licence, permit or other instrument to
which such Obligor is a party or is otherwise bound or by which
such Obligor benefits or to which its property is subject and do
not require the consent or approval of any Official Body or any
other party.
(d) FINANCIAL STATEMENTS. The consolidated financial statements of
Kinross Canada for the most recently completed Fiscal Quarter or
Fiscal Year, as the case may be (and for the period prior to the
completion of the Transaction, for each of Kinross Canada, ▇▇
▇▇▇▇▇ and TVX Gold as set out in the Management Information
Circular), were prepared in accordance with generally accepted
accounting principles and no Material Adverse Change has occurred
in the condition, financial or otherwise, of Kinross Canada since
the date of such financial statements. The consolidated balance
sheet of the aforesaid financial statement presents a fair
statement of the financial condition and assets and liability of
Kinross Canada as at the date thereof and the consolidated
statement of income and retained earnings and changes in cashflow
contained in the aforesaid consolidated financial statements
fairly presents the results of the operations of Kinross Canada
throughout the period covered thereby. Except to the extent
reflected or reserved against in the aforesaid balance sheet
(including the notes thereto) and except as incurred in the
ordinary and usual course of the business of Kinross Canada,
Kinross Canada does not have any outstanding indebtedness or
any liability or obligations (whether accrued, absolute,
contingent or otherwise) of a nature customarily reflected or
reserved against in a balance sheet (including the notes thereto)
prepared in accordance with generally accepted accounting
principles.
(e) LITIGATION. There are no actions, suits, inquiries, claims or
proceedings (whether or not purportedly on behalf of any Company)
pending or threatened in writing against or affecting any Company
before any Official Body which in any case or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
(f) TITLE TO ASSETS. Each Company has good title to its property,
assets and undertaking, free from any Lien other than the
Permitted Liens and title defects or irregularities that could not
reasonably be expected to have a Material Adverse Effect.
(g) CONDUCT OF BUSINESS. No Company is in violation of any agreement,
mortgage, franchise, licence, judgment, decree, order, statute,
statutory trust, rule or regulation relating in any way to itself
or to the operation of its business or to its property or assets
(including, without limitation, Environmental Laws) and which
could reasonably be expected to have a Material Adverse Effect.
Each Company holds all licenses, certificates of approval,
approvals, registrations, permits and consents which are required
to operate its businesses where they are currently being operated
except where the failure to have such licenses, certificates of
approval, approvals, registrations, permits and consents could not
reasonably be expected to have a Material Adverse Effect.
(h) OUTSTANDING DEFAULTS. No event has occurred which constitutes or
which, with the giving of notice, lapse of time or both, would
constitute a default under or in respect of any material
agreement, undertaking or instrument to which any Company is a
party or to which its respective property or assets may be
subject, and which could reasonably be expected to have a Material
Adverse Effect.
(i) SOLVENCY PROCEEDINGS. No Company has:
(i) admitted its inability to pay its debts generally as they
become due or failed to pay its debts generally as they
become due;
(ii) in respect of itself, filed an assignment or petition in
bankruptcy or a petition to take advantage of any
insolvency statute;
(iii) made an assignment for the benefit of its creditors;
(iv) consented to the appointment of a receiver of the whole or
any substantial part of its assets;
(v) filed a petition or answer seeking a reorganization,
arrangement, adjustment or composition in respect of itself
under applicable bankruptcy
laws or any other applicable law or statute of Canada, the
United States or other applicable jurisdiction or any
subdivision thereof; or
(vi) been adjudged by a court having jurisdiction a bankrupt or
insolvent, nor has a decree or order of a court having
jurisdiction been entered for the appointment of a
receiver, liquidator, trustee or assignee in bankruptcy of
any Company with such decree or order having remained in
force and undischarged or unstayed for a period of 30 days.
(j) TAX RETURNS AND TAXES. Each Company has filed all tax returns and
tax reports required by law to have been filed by it and has paid
all taxes and governmental charges thereby shown to be owing,
except any such taxes or charges which are being diligently
contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with generally accepted accounting
principles shall have been set aside on its books.
(k) EXPROPRIATION. There is no present or threatened (in writing)
expropriation of the property or assets of any Company, which
expropriation could reasonably be expected to have a Material
Adverse Effect.
(l) ENVIRONMENTAL COMPLIANCE.
(i) All facilities and property (including underlying
groundwater) owned, leased, used or operated by any Company
have been, and continue to be, owned or leased in
compliance with all Environmental Laws where any such
non-compliance could reasonably be expected to have a
Material Adverse Effect;
(ii) There are no pending or threatened (in writing)
(A) claims, complaints, notices or requests for
information received by any Company with respect to
any alleged violation of any Environmental Law
which, if proved, could reasonably be expected to
have a Material Adverse Effect;
(B) complaints, notices or inquiries to any Company
regarding potential liability under any
Environmental Law which liability could reasonably
be expected to have a Material Adverse Effect;
(iii) There have been no Releases of any Hazardous Materials or
any escape, seepage, leakage, spillage, discharge, emission
or release of any Contaminants, Pollutants or Waste at, on,
under or from any property now or previously owned,
operated, used or leased by any Company that, singly or in
the aggregate, have, or could reasonably be expected to
have, a Material Adverse Effect;
(iv) Each Company has been issued and is in compliance with all
permits, certificates, approvals, licenses and other
authorizations under any
Environmental Laws to carry on its business except where
any such non-issuance or non-compliance could not
reasonably be expected to have a Material Adverse Effect;
and
(v) No conditions exist at, on or under any property now or
previously owned, operated, used or leased by any Company
which, with the passage of time, or the giving of notice or
both, would give rise to liability under any Environmental
Law which liability could reasonably be expected to have a
Material Adverse Effect.
(m) FRENCH FORM OF CORPORATE NAME. Except as reported or to be
reported to the Administrative Agent in accordance with Section
11.1(i), there is no French form of the corporate name of any
Obligor.
(n) PRINCIPAL PLACES OF BUSINESS; JURISDICTIONS OF INCORPORATION.
Except as reported or to be reported to the Administrative Agent
in accordance with Section 11.1(i), the only place of business, or
if an Obligor has more than one place of business, the principal
place of business of each Obligor (for the purposes of the PPSA or
any similar law of any other jurisdiction) and the jurisdiction of
incorporation of each Obligor is as set out in Schedule D hereto.
(o) LOCATIONS OF TANGIBLE PERSONAL PROPERTY. Except as reported or to
be reported to the Administrative Agent in accordance with Section
11.1(i), the addresses of all locations of the inventory,
equipment and other tangible personal property of each of the
Obligors are as set out in Schedule N hereto.
(p) CONSENTS, APPROVALS, ETC. No consents, approvals,
acknowledgements, undertakings, non-disturbance agreements,
directions or other documents or instruments are required to be
entered into by any Person, to make effective the Security created
or intended to be created by the Obligors in favour of the
Administrative Agent pursuant to the Security Documents and to
ensure the perfection and the intended priority of such Security,
except as provided in the Material Contracts relating to ownership
of the Shares of Newinco Brazil. None of the Obligors is an
"investment company" within the meaning of the INVESTMENT COMPANY
ACT of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company",
within the meaning of the PUBLIC UTILITY HOLDING COMPANY ACT of
1935, as amended.
(q) CAPITAL OF PLEDGED SUBSIDIARIES. As at the date hereof, and
hereafter, except as such information may change as a result of a
transaction permitted hereby and reported to the Administrative
Agent in accordance with Section 11.1(i):
(i) The authorized capital of ▇▇ ▇▇▇▇▇ consists of (A) an
unlimited number of common shares with no par value, of
which 541,272,675 shares have been issued and are
outstanding as fully paid and non-assessable; and (B) an
unlimited number of preferred shares, issueable in series,
none of
which are outstanding. Kinross Canada is the owner of
record of all of the issued and outstanding shares of ▇▇
▇▇▇▇▇. There are no outstanding warrants, options or other
agreements which require or may require the issuance of any
shares of ▇▇ ▇▇▇▇▇ or the issuance of any debt or
securities convertible into shares of ▇▇ ▇▇▇▇▇, there are
no outstanding debt or securities convertible into shares
of ▇▇ ▇▇▇▇▇ and there are no shares of ▇▇ ▇▇▇▇▇ allotted
for issuance.
(ii) The authorized capital of ▇▇▇▇▇ Creek consists of
10,000,000 shares with a par value of $0.01 each, of which
100,000 shares have been issued and are outstanding as
fully paid and non-assessable. Kinam Canada is the owner of
record of all of the issued and outstanding shares of ▇▇▇▇▇
Creek. There are no outstanding warrants, options or other
agreements which require or may require the issuance of any
shares of ▇▇▇▇▇ Creek or the issuance of any debt or
securities convertible into shares of ▇▇▇▇▇ Creek, there
are no outstanding debt or securities convertible into
shares of ▇▇▇▇▇ Creek and there are no shares of ▇▇▇▇▇
Creek allotted for issuance.
(iii) The authorized capital of Fairbanks U.S. consists of 1,000
shares with a par value of $100.00 each, of which 10 shares
have been issued and are outstanding as fully paid and
non-assessable. Kinam Gold is the owner of record of all of
the issued and outstanding shares of Fairbanks U.S. There
are no outstanding warrants, options or other agreements
which require or may require the issuance of any shares of
Fairbanks U.S. or the issuance of any debt or securities
convertible into shares of Fairbanks U.S., there are no
outstanding debt or securities convertible into shares of
Fairbanks U.S. and there are no shares of Fairbanks U.S.
allotted for issuance.
(iv) The authorized capital of ▇▇▇▇▇ ▇▇▇▇▇▇▇ consists of 1,000
common shares with a par value of U.S.$100 each, of which
10 common shares have been issued and are outstanding as
fully paid and non-assessable. Kinam Gold is the owner of
record of all of the issued and outstanding shares of ▇▇▇▇▇
▇▇▇▇▇▇▇ There are no outstanding warrants, options or other
agreements which require or may require the issuance of any
shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ or the issuance of any debt or
securities convertible into shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇, there
are no outstanding debt or securities convertible into
shares of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and there are no shares of ▇▇▇▇▇
▇▇▇▇▇▇▇ allotted for issuance.
(v) The authorized capital of Normandy Cayman consists of
150,000,000 ordinary shares with a par value of U.S.$1.00
each, of which 91,309,917 ordinary shares have been issued
and are outstanding as fully paid and non-assessable. TVX
Gold is the owner of record of all of the issued and
outstanding shares of Normandy Cayman. There are no
outstanding warrants, options or other agreements which
require or may require the issuance of any shares of
Normandy Cayman or the issuance of any debt or securities
convertible into shares of Normandy Cayman, there are no
outstanding debt or securities convertible into shares of
Normandy Cayman and there are no shares of Normandy Cayman
allotted for issuance.
(vi) The authorized capital of EB Inc. consists of 10,000 common
shares with no par value of which 2,000 common shares have
been issued and are outstanding as fully paid and
non-assessable. ▇▇ ▇▇▇▇▇ is the owner of record of all of
the issued and outstanding shares of EB Inc. There are no
outstanding warrants, options or other agreements which
require or may require the issuance of any shares of EB
Inc. or the issuance of any debt or securities convertible
into shares of EB Inc., there are no outstanding debt or
securities convertible into shares of EB Inc. and there are
no shares of EB Inc. allotted for issuance.
(vii) The authorized capital of TVX Gold consists of an unlimited
number of common shares of which two common shares have
been issued and are outstanding as fully paid and
non-assessable. Kinross Canada is the owner of record of
all of the issued and outstanding shares of TVX Gold. There
are no outstanding warrants, options or other agreements
which require or may require the issuance of any shares of
TVX Gold or the issuance of any debt or securities
convertible into shares of TVX Gold, there are no
outstanding debt or securities convertible into shares of
TVX Gold and there are no shares of TVX Gold allotted for
issuance.
(viii) The authorized capital of Kinross U.S.A. consists of 25,000
common shares with a par value of U.S.$1.00 each and
666,666 preferred shares with a par value of U.S.$0.01
each, of which 13,200 common shares have been issued and
are outstanding as fully paid and non-assessable. Kinross
Canada is the owner of record of all of the issued and
outstanding shares of Kinross U.S.A. There are no
outstanding warrants, options or other agreements which
require or may require the issuance of any shares of
Kinross U.S.A. or the issuance of any debt or securities
convertible into shares of Kinross U.S.A., there are no
outstanding debt or securities convertible into shares of
Kinross U.S.A. and there are no shares of Kinross U.S.A.
allotted for issuance.
(ix) The authorized capital of Kinam Gold consists of
200,000,000 common shares with a par value of U.S.$0.01
each and 10,000,000 preferred shares with a par value of
U.S.$1.00 each, , of which 92,213,988 common shares and
1,840,000 preferred shares designated as U.S.$3.75 Series B
Preferred Stock ("Series B Shares") have been issued and
are outstanding as fully paid and non-assessable. Kinross
U.S.A. is the owner of record of all of the issued and
outstanding common shares of Kinam Gold and of 1,616,372
Series B Shares and Kinross Canada is the owner of 100
Series B Shares. There are no outstanding warrants, options
or other agreements which require or may require the
issuance of any shares of Kinam Gold or the issuance of any
debt or securities convertible into shares of Kinam
Gold, there are no outstanding debt or securities
convertible into shares of Kinam Gold and there are no
shares of Kinam Gold allotted for issuance.
(x) The authorized capital of Kinam Canada consists of
100,000,000 common shares with no par value and 100,000,000
preference shares with no par value, of which 1 common
share has been issued and is outstanding as fully paid and
non-assessable. Kinam Gold is the owner of record of all of
the issued and outstanding shares of Kinam Canada. There
are no outstanding warrants, options or other agreements
which require or may require the issuance of any shares of
Kinam Canada or the issuance of any debt or securities
convertible into shares of Kinam Canada, there are no
outstanding debt or securities convertible into shares of
Kinam Canada and there are no shares of Kinam Canada
allotted for issuance.
(xi) The authorized capital of Round Mountain consists of 1,000
common shares with a par value of U.S.$0.01 each, of which
1,000 common shares have been issued and are outstanding as
fully paid and non-assessable. EB Inc. is the owner of
record of all of the issued and outstanding shares of Round
Mountain. There are no outstanding warrants, options or
other agreements which require or may require the issuance
of any shares of Round Mountain or the issuance of any debt
or securities convertible into shares of Round Mountain,
there are no outstanding debt or securities convertible
into shares of Round Mountain and there are no shares of
Round Mountain allotted for issuance.
(xii) The authorized capital of TVX Cayman consists of 50,000
common shares with a par value of U.S.$1.00 each and
1,000,000 preference shares with a par value of U.S. $1.00
each, of which 100 common shares and 1,000,000 preference
shares have been issued and are outstanding as fully paid
and non-assessable. TVX Gold is the owner of record of all
of the issued and outstanding shares of TVX Cayman. There
are no outstanding warrants, options or other agreements
which require or may require the issuance of any shares of
TVX Cayman or the issuance of any debt or securities
convertible into shares of TVX Cayman, there are no
outstanding debt or securities convertible into shares of
TVX Cayman and there are no shares of TVX Cayman allotted
for issuance.
(xiii) The authorized capital of Newinco consists of 50,000 shares
with a par value of U.S.$1.00 each, of which 100 shares
have been issued and are outstanding as fully paid and
non-assessable. TVX Cayman is the owner of record of all of
the issued and outstanding shares of Newinco. There are no
outstanding warrants, options or other agreements which
require or may require the issuance of any shares of
Newinco or the issuance of any debt or securities
convertible into shares of Newinco, there are no
outstanding debt or securities convertible into shares of
Newinco and there are no shares of Newinco allotted for
issuance.
(xiv) The authorized capital of TVX Newmont consists of
100,000,000 Newinco preferred shares, 200,000,000 voting
preferred shares and 200,000,000 common shares, in each
case with a par value of U.S.$0.01 each, of which
41,239,500 Newinco preferred shares, 93,943,500 voting
preferred shares and 93,943,600 common shares have been
issued and are outstanding as fully paid and
non-assessable. TVX Cayman is the owner of record of
93,943,600 common shares of TVX Newmont and Normandy Cayman
is the owner of record of 41,239,500 Newinco preferred
shares and 93,943,500 voting preferred shares of TVX
Newmont. There are no outstanding warrants, options or
other agreements which require or may require the issuance
of any shares of TVX Newmont or the issuance of any debt or
securities convertible into shares of TVX Newmont, there
are no outstanding debt or securities convertible into
shares of TVX Newmont and there are no shares of TVX
Newmont allotted for issuance.
(xv) The authorized capital of Newinco Brazil consists of
R$10,817,000 (reals), divided into 10,817,000 quotas with a
par value of R$1.00 (one real) each, of which 10,817,000
quotas have been issued and are outstanding as fully paid
and non-assessable. Newinco is the owner of record of
10,816,999 quotas of Newinco Brazil and TVX Brazil is the
owner of record of 1 quota of Newinco Brazil. There are no
outstanding warrants, options or other agreements which
require or may require the issuance of any shares of
Newinco Brazil or the issuance of any debt or securities
convertible into shares of Newinco Brazil, there are no
outstanding debt or securities convertible into shares of
Newinco Brazil and there are no shares of Newinco Brazil
allotted for issuance.
(xvi) The authorized capital of TVX Newmont Holdings consists of
50,000 shares with a par value of U.S.$1.00 each, of which
40,002 shares have been issued and are outstanding as fully
paid and non-assessable. TVX Newmont is the owner of record
of all of the issued and outstanding shares of TVX Newmont
Holdings. There are no outstanding warrants, options or
other agreements which require or may require the issuance
of any shares of TVX Newmont Holdings or the issuance of
any debt or securities convertible into shares of TVX
Newmont Holdings, there are no outstanding debt or
securities convertible into shares of TVX Newmont Holdings
and there are no shares of TVX Newmont Holdings allotted
for issuance.
(xvii) The authorized capital of Miicre consists of 900,000
ordinary shares with a par value of U.S.$1.00 each,
100,000,000 redeemable 5% non-cumulative preferred shares
with a par value of U.S.$1.00 each, and 140,000,000
redeemable retractable 10% non-cumulative preferred shares
with a par value of Cdn.$1.00 each, of which 128,760,000
Cdn.$ preferred and 1 ordinary share have been issued and
are outstanding as fully paid and non-assessable. TVX
Newmont Holdings is the owner of record of all of the
issued and outstanding shares of Miicre. There are no
outstanding
warrants, options or other agreements which require or may
require the issuance of any shares of Miicre or the
issuance of any debt or securities convertible into shares
of Miicre, there are no outstanding debt or securities
convertible into shares of Miicre and there are no shares
of Miicre allotted for issuance.
(xviii) The authorized capital of Cayman PI consists of 50,000
shares with a par value of U.S.$1.00 each, of which 101
shares have been issued and are outstanding as fully paid
and non-assessable. TVX Newmont Holdings is the owner of
record of all of the issued and outstanding shares of
Cayman PI. There are no outstanding warrants, options or
other agreements which require or may require the issuance
of any shares of Cayman PI or the issuance of any debt or
securities convertible into shares of Cayman PI, there are
no outstanding debt or securities convertible into shares
of Cayman PI and there are no shares of Cayman PI allotted
for issuance.
(xix) The authorized capital of Macaines consists of 500,000,000
ordinary shares with a par value of U.S.$1.00 each ranking
pari passu with the existing shares, of which 158,000,100
shares have been issued and are outstanding as fully paid
and non-assessable. Miicre is the owner of record of all of
the issued and outstanding shares of Macaines. There are no
outstanding warrants, options or other agreements which
require or may require the issuance of any shares of
Macaines or the issuance of any debt or securities
convertible into shares of Macaines, there are no
outstanding debt or securities convertible into shares of
Macaines and there are no shares of Macaines allotted for
issuance.
(xx) The authorized capital of ▇▇▇▇▇▇ consists of 3,500,000
shares with no par value, of which 3,500,000 shares have
been issued and are outstanding as fully paid and
non-assessable. Macaines is the owner of record of
1,750,000 of the issued and outstanding shares of ▇▇▇▇▇▇.
Except as provided in the Material Contracts, there are no
outstanding warrants, options or other agreements which
require or may require the issuance of any shares of ▇▇▇▇▇▇
or the issuance of any debt or securities convertible into
shares of ▇▇▇▇▇▇, there are no outstanding debt or
securities convertible into shares of ▇▇▇▇▇▇ and there are
no shares of ▇▇▇▇▇▇ allotted for issuance.
(xxi) The authorized capital of Montana consists of
R$12,743,000.00 (reals), divided into 12,743,000 quotas
with a par value of R$1.00 (one real) each, of which
12,743,000 quotas have been issued and are outstanding. IGM
is the owner of record of all of the issued and outstanding
shares of Montana. There are no outstanding warrants,
options or other agreements which require or may require
the issuance of any shares of Montana or the issuance of
any debt or securities convertible into shares of Montana,
there are no outstanding debt or securities convertible
into shares of Montana and there are no shares of Montana
allotted for issuance.
(xxii) The authorized capital of TVX Brazil consists of
R$31,204,847.00 (reals), divided into 23,479,141 quotas,
with a par value of R$1.33 (one real thirty three cents)
each, of which 23,479,141 quotas have been issued and are
outstanding. Cayman PI is the owner of record of 13,339,491
quotas of TVX Brazil and Montana is the owner of record of
10,139,650 quotas of TVX Brazil. Expect as provided in the
Material Contracts, there are no outstanding warrants,
options or other agreements which require or may require
the issuance of any shares of TVX Brazil or the issuance of
any debt or securities convertible into shares of TVX
Brazil, there are no outstanding debt or securities
convertible into shares of TVX Brazil and there are no
shares of TVX Brazil allotted for issuance.
(xxiii) The authorized capital of IGM consists of 900,000 ordinary
shares with a par value of U.S.$1.00 each, 60,000,000
redeemable 5% non-cumulative preferred shares with a par
value of U.S.$1.00 each and 40,000,000 redeemable
retractable 10% non-cumulative preferred shares with a par
value of Cdn.$1.00 each, of which 5,012 ordinary shares and
19,363,000 Cdn.$ preferred shares have been issued and are
outstanding as fully paid and non-assessable. TVX Newmont
Holding is the owner of record of all of the issued and
outstanding shares of IGM. There are no outstanding
warrants, options or other agreements which require or may
require the issuance of any shares of IGM or the issuance
of any debt or securities convertible into shares of IGM,
there are no outstanding debt or securities convertible
into shares of IGM and there are no shares of IGM allotted
for issuance.
(r) IRB LOAN AGREEMENT. As of the date hereof, the aggregate
outstanding principal amount of the advances under the IRB Loan
Agreement is U.S. $25,000,000.
(s) SIGNIFICANT MATERIAL SUBSIDIARIES AND PARTNERSHIPS. There are no
Significant Material Subsidiaries other than the Obligors and
those Significant Material Subsidiaries which are hereafter
identified in compliance certificates delivered to the
Administrative Agent pursuant to Section 11.1(a)(iii). No Company
is, directly or indirectly, a member of, or a partner or
participant in, any partnership, joint venture or syndicate where
the joint liability arising from such membership or participation
could reasonably be expected to have a Material Adverse Effect.
(t) CORPORATE STRUCTURE. As at the date hereof, and hereafter, except
as such information may change as a result of a transaction
permitted hereby and reported to the Administrative Agent in
accordance with Section 11.1(a)(iii), the chart attached hereto as
Schedule H accurately sets out the corporate structure of the
Borrowers and all of their Subsidiaries and evidences (i)
intercorporate share ownership and (ii) ownership of mines.
(u) SOLVENCY AFTER DRAWDOWN. On an unconsolidated basis,
(i) the assets of each U.S. Borrower shall exceed its
respective liabilities, including contingent liabilities;
(ii) the capital of each U.S. Borrower shall not be unreasonably
small to conduct its respective business; and (iii) no U.S.
Borrower shall have incurred debts, nor shall have intended
to incur debts, beyond its respective ability to pay such
debts as they mature.
(v) EMPLOYEE BENEFIT PLANS. Each of the ERISA Companies has
fulfilled in all material respects its obligations under
the minimum funding standards of Section 302 of ERISA and
Section 412 of the Code with respect to each Plan and is in
material compliance with all other applicable provisions of
ERISA. No U.S. Borrower nor any ERISA Affiliate has
incurred any Withdrawal Liability that could reasonably
expected to have a Material Adverse Effect. None of the
ERISA Companies has received any notification that any
Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA.
(w) REGULATION U OR X. None of the Borrowers is engaged in the
business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any credit obtained
hereunder shall be used for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or X. Terms for which
meanings are provided in F.R.S. Board Regulation U or X or any
regulations substituted therefor, as from time to time in effect,
are used in this Section with such meanings.
(x) ASSETS INSURED. The property and assets of the Companies are
insured with insurers, in amounts, for risks and otherwise which
are reasonable in relation to such property and assets (subject to
the amount of such deductibles as are reasonable and normal in the
circumstances) against loss or damage, and there has been no
default or failure by the party or parties insured under the
provisions of such policies of insurance maintained which would
prevent the recovery by the Companies insured thereunder of the
full amount of any material insured loss.
(y) REAL PROPERTY. As at the date hereof, and hereafter, except as
such information may change as a result of a transaction permitted
hereby and reported to the Administrative Agent in accordance with
Section 11.1(i), none of the Obligors, other than ▇▇▇▇▇ Creek,
Fairbanks U.S., TVX Gold, ▇▇ ▇▇▇▇▇ and Kinross Canada, own any
material real property, ▇▇▇▇▇ Creek owns no material real property
other than its 51% interest in the Fort ▇▇▇▇ Deposit, Fairbanks
U.S. owns no material real property other than (i) its 49%
interest in the Fort ▇▇▇▇ Deposit and (ii) its 100% interest in
the True North Deposit and in the ▇▇▇▇ ▇▇▇▇ Deposit, TVX Gold owns
no material real property other than its joint venture interest in
respect of the gold mine near Pickle Lake, Ontario known as the
▇▇▇▇▇▇▇▇▇▇▇ Mine and its joint venture interest in respect of the
gold mine near Snow Lake, Manitoba known as the New Britannia
Mine, ▇▇ ▇▇▇▇▇ owns no material real property other than the gold
mine located in Nunavut Territory and
known as the Lupin Mine, and Kinross Canada owns no material real
property other than its joint venture interest in respect of the
gold mine near Timmins, Ontario known as the Dome Mine and the
Hoyle Pond Mine.
(z) MATERIAL CONTRACTS. Each of the Material Contracts is in full
force and effect, and, except as disclosed in the Management
Information Circular, the Borrowers, as at the date hereof, are
not aware of any actual or alleged outstanding material defaults
thereunder.
(aa) EXISTING MARGINED AGREEMENTS. There are no Existing Margined
Agreements other than those described in Schedule T.
(bb) TEMPORARY LETTERS. Schedule L fully describes all Temporary
Letters as of the date hereof and the amount of the contingent
liability of the Obligors thereunder as of the date hereof.
(cc) GUARANTEE OBLIGATIONS. There are no Guarantee Obligations of any
Obligor which have been incurred other than in the ordinary course
of the relevant Obligor's business.
(dd) NO OMISSIONS. None of the representations and statements of fact
set forth in this Section 10.1 omits to state any material fact
necessary to make any such representation or statement of fact not
misleading in any material respect.
10.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the Borrowers contained in
Section 10.1 shall survive the execution and delivery of this agreement until
all credit outstanding hereunder has been repaid in full and the Credit Facility
has been terminated, notwithstanding any investigation made at any time by or on
behalf of the Administrative Agent or any of the Lenders.
ARTICLE 11
COVENANTS
11.1 AFFIRMATIVE COVENANTS
The Borrowers hereby covenant and agree with the Administrative Agent and
the Lenders that, until all credit outstanding hereunder has been repaid in full
and the Credit Facility has been terminated, and unless waived in writing in
accordance with Section 14.14:
(a) FINANCIAL REPORTING. The Borrowers shall furnish the
Administrative Agent with the following statements and reports
(with sufficient copies for all of the Lenders):
(i) within 120 days after the end of each Fiscal Year, copies
of the audited consolidated financial statements of Kinross
Canada for such Fiscal Year and the auditors' report
thereon together with unaudited segmented
financial statements for such Fiscal Year in respect of
specified entities and mines, in form and substance
satisfactory to the Administrative Agent, and a chart
setting out the corporate structure of the Borrowers and
all of their Subsidiaries, whether direct or indirect, and
evidencing (i) intercorporate share ownership and (ii) mine
ownership;
(ii) within 45 days after the end of each Fiscal Quarter, copies
of the unaudited consolidated financial statements of
Kinross Canada together with unaudited segmented financial
statements for such Fiscal Quarter in respect of specified
entities and mines, in form and substance satisfactory to
the Administrative Agent;
(iii) concurrent with the deliveries of financial statements
pursuant to clauses (i) and (ii) above, a duly executed and
completed compliance certificate, in the form attached as
Schedule B hereto and signed by a senior financial officer
of Kinross Canada;
(iv) within 45 days after the end of each Fiscal Quarter, a
report summarizing the commodity, interest rate and foreign
exchange risk management activities of the Companies;
(v) within 120 days after the end of each Fiscal Year from and
including the Fiscal Year ending December 31, 2003, a
report, prepared by Kinross Canada and reviewed by one of
the Independent Engineers, detailing Kinross Canada's
estimated consolidated future reclamation and closure
costs;
(vi) within 120 days after the end of each Fiscal Year, an
annual budget (including a cash flow forecast, gold
production projections and a capital expenditures plan) of
Kinross Canada in respect of the next period of three
Fiscal Years including the then current Fiscal Year;
(vii) within 15 days after the end of each calendar month, a
detailed report on the Unencumbered Domestic Cash Balance
as at the last day of such calendar month;
(viii) concurrent with disclosure provided to U.S. regulatory
authorities on an annual basis, copies of such disclosure
as it relates to Guarantee Obligations of the Obligors; and
(ix) such other statements, reports and information as the
Administrative Agent on the instructions of the Majority
Lenders may reasonably request from time to time.
(b) COPIES OF PUBLIC FILINGS. Kinross Canada shall, upon request,
furnish the Administrative Agent with copies of all documents
which are filed by any of the Companies with the Ontario
Securities Commission or with any similar Official Body in any
other jurisdiction in compliance with applicable securities
legislation.
(c) USE OF PROCEEDS. The Borrowers shall apply all of the proceeds of
the credit obtained under the Credit Facility to repay in full the
Existing Credit Agreement (other than the Existing Letters and
accrued fees thereon) and to assume outstanding letters of credit
as Letters or issue Letters to replace outstanding letters of
credit and otherwise for working capital requirements and general
operating purposes.
(d) INSURANCE. The Borrowers shall, and shall cause each Guarantor to,
insure and keep insured, with insurers, for risks, in amounts and
otherwise upon terms (including, without limitation, the
undertaking of the insurer to give the Administrative Agent 30
days' written notice of the cancellation of the policy)
satisfactory to the Administrative Agent acting reasonably, all of
the Secured Assets, with the Administrative Agent, for and on
behalf of the Finance Parties, named as loss payee and additional
insured as their interest may appear with respect to all property,
boiler and machinery insurance. The Borrowers shall deliver to the
Administrative Agent certificates of insurance (Accord form or
equivalent) or if required certified copies of all of the
insurance policies, riders and endorsements relating to the
aforesaid insurance. The covenants contained in this Section
11.1(d) shall, without duplication, be in addition to any
covenants relating to insurance which are contained in any of the
Security Documents. The Borrowers shall promptly notify the
Administrative Agent of any material loss, damage, or destruction
to the Secured Assets or arising from their use, whether or not
covered by insurance. In the absence of any Default or Event of
Default, and provided that the aggregate amount of such proceeds
does not exceed $5,000,000, or such proceeds exceed $5,000,000 but
the Borrowers have promptly provided to the Administrative Agent a
detailed report on the proposed uses of such proceeds, the
Borrowers shall have the right to determine whether, and to what
extent, such insurance proceeds shall be used for repair or
replacement. If, however, any Default or Event of Default shall be
continuing, or the aggregate amount of such insurance proceeds
exceeds $5,000,000 and the Borrowers have not promptly provided to
the Administrative Agent a detailed report on the proposed uses of
such proceeds, the Majority Lenders may determine, in their sole
discretion, whether the proceeds shall be used for repair or
replacement. If neither an Event of Default nor a Default exists,
and aggregate proceeds of such insurance do not exceed $5,000,000
or such proceeds exceed $5,000,000 but the Borrowers have promptly
provided to the Administrative Agent a detailed report on the
proposed uses of such proceeds, the Borrowers or any Guarantor, as
the case may be, may negotiate a settlement regarding such
proceeds with the insurance company and the Administrative Agent
shall forward such proceeds to the Borrower or Guarantor, as the
case may be. If, however, an Event of Default or a Default exists,
or the aggregate amount of insurance proceeds exceeds $5,000,000
and the Borrowers have not promptly provided to the Administrative
Agent a detailed report on the proposed uses of such proceeds, the
Administrative Agent shall collect such insurance proceeds
directly and no Obligor shall enter into any settlement agreement
with the applicable insurance company without the prior written
consent of the Administrative Agent, which consent shall not be
unreasonably withheld. At any time that the Security has become
enforceable,
such insurance proceeds shall be treated as Proceeds of
Realization and applied as provided herein.
(e) ACCESS TO SENIOR FINANCIAL OFFICERS. Upon the request of the
Administrative Agent at reasonable intervals, the Borrowers shall,
and shall cause each Material Subsidiary to, make available its
senior financial officers to answer questions concerning such
Company's business and affairs.
(f) REIMBURSEMENT OF EXPENSES. The Borrowers shall (i) reimburse the
Co-Lead Arrangers and Administrative Agent, on demand, for all
reasonable out-of-pocket costs, charges and expenses incurred by
or on behalf of the Administrative Agent (including, without
limitation, the reasonable fees, disbursements and other charges
of one primary counsel and any local or special counsel to the
Co-Lead Arrangers and the Administrative Agent, of the Independent
Engineers and of any mining title consultant retained by the
Administrative Agent as well the costs of any engineering reports
and environmental audits and studies as required by the
Administrative Agent) in connection with the negotiation,
preparation, execution, delivery, syndication, administration and
interpretation of the Credit Documents and the closing
documentation ancillary to the completion of the transactions
contemplated hereby and any amendments and waivers hereto (whether
or not consummated or entered into), the charges of Intralinks and
any lien search fees and lien registration fees and (ii) reimburse
the Co-Lead Arrangers, the Administrative Agent and the Lenders,
on demand, for all reasonable out-of-pocket costs, charges and
expense incurred by or on behalf of any of them (including the
fees, disbursements and other charges of counsel) in connection
with the enforcement of the Credit Documents.
(g) NOTICE OF EXPROPRIATION OR CONDEMNATION. The Borrowers shall
promptly notify the Administrative Agent of the commencement or
the written threat of any expropriation or condemnation of any of
the Secured Assets or of the institution of any proceedings
related thereto.
(h) INSPECTION OF ASSETS AND OPERATIONS. The Borrowers shall, and
shall cause each Material Subsidiary to, permit representatives of
the Administrative Agent from time to time and representatives of
the Lenders (but no more than once in any particular Fiscal Year
with respect to any particular Lender) to inspect the Secured
Assets and for that purpose to enter on any property which is
owned and controlled by the Borrowers or the Material Subsidiaries
and where any of the Secured Assets may be situated during
reasonable business hours and, unless a Default has occurred and
is continuing, upon reasonable notice.
(i) CHANGE OF NAME, OFFICE OR OTHER INFORMATION. The Borrowers shall
notify the Administrative Agent in writing (i) promptly of any
change in (A) the corporate name of any Obligor; (B) the location
of the principal place of business, chief executive office or head
office of any Obligor; (C) the jurisdiction of incorporation of
any Obligor; or (D) the jurisdictions in which tangible property
of any Obligor is located; (ii) not less than 10 Banking Days
prior to the closing
thereof, of any transaction permitted hereby which will result in
any change in the information set out in the representations made
in Section 10.1(q); and (iii) at the time that they deliver their
next Compliance Certificate, the description of any additional
real property acquired by any Obligor.
(j) CORPORATE EXISTENCE. Other than as permitted pursuant to the
proviso in Section 11.2(b), the Borrowers shall, and shall cause
each Material Subsidiary to, maintain its corporate existence in
good standing and qualify and remain duly qualified to carry on
business and own property in each jurisdiction in which such
qualification is necessary.
(k) CONDUCT OF BUSINESS. The Borrowers shall, and shall cause each
Material Subsidiary to, conduct its business in such a manner so
as to comply with all laws and regulations (including, without
limitation, Environmental Laws), so as to observe and perform all
its obligations under leases, licences and agreements necessary
for the proper conduct of its business and so as to preserve and
protect its property and assets and the earnings, income and
profits therefrom where such non-compliance, non-observance or
non-performance could reasonably be expected to have a Material
Adverse Effect. The Borrowers shall, and shall cause each Material
Subsidiary to, perform all obligations incidental to any trust
imposed upon it by statute and shall ensure that any breaches of
the said obligations and the consequences of any such breach shall
be promptly remedied. The Borrowers shall, and shall cause each
Material Subsidiary to, obtain and maintain all licenses, permits,
government approvals, franchises, authorizations and other rights
necessary for the operation of its business where failure to do so
could reasonably be expected to have a Material Adverse Effect.
(l) TAXES. The Borrowers shall pay, and shall cause each Material
Subsidiary to pay, all material taxes, rates, government fees and
dues levied, assessed or imposed upon it and upon its property or
assets or any part thereof, as and when the same become due and
payable, save and except when and so long as the validity of any
such taxes, rates, fees, dues, levies, assessments or imposts is
being contested in good faith by appropriate proceedings and
reserves are being maintained in accordance with generally
accepted accounting principles while forfeiture of any part of its
property or assets may result from the failure to so pay during
the period of any such contest.
(m) NOTICE OF LITIGATION. The Borrowers shall promptly notify the
Administrative Agent of any actions, suits, inquiries, claims or
proceedings (whether or not purportedly on behalf of any Company)
commenced or threatened in writing against or affecting any
Company before any Official Body which in any case or in the
aggregate could reasonably be expected to have a Material Adverse
Effect.
(n) ENVIRONMENTAL MATTERS. The Borrowers shall, and shall cause each
Material Subsidiary to, as soon as practicable and in any event
within 30 days, notify the Administrative Agent and provide copies
upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and
properties or compliance with Environmental Laws, which claims,
complaints, notices or inquiries relate to matters which could
reasonably be expected to have a Material Adverse Effect, and
shall proceed diligently to resolve any such claims, complaints,
notices or inquiries relating to compliance with Environmental
Laws and provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section 11.1(n).
(o) TANGIBLE NET WORTH. The Borrowers shall, as at the last day of
each Fiscal Quarter, maintain Tangible Net Worth in an amount
greater than the aggregate of:
(i) an amount expressed in U.S. dollars which is equal to 80%
of the Tangible Net Worth of Kinross Canada as at January
31, 2003, following the completion of the Transaction, as
shown on the opening consolidated balance sheet of Kinross
Canada ; and
(ii) the aggregate of 50% of Net Income for each Fiscal Quarter
after the Fiscal Quarter ending March 31, 2003 which has
been completed on or before the date of determination and,
for the purposes of this covenant, (x) if Net Income for
any Fiscal Quarter is a negative amount, it shall be deemed
to be equal to zero and (y) Net Income shall be calculated
for Kinross Canada on a consolidated basis.
(p) INTEREST COVERAGE RATIO. The Borrowers shall, for each Fiscal
Quarter, maintain the Interest Coverage Ratio in an amount greater
than or equal to 4.5:1.
(q) LEVERAGE RATIO. The Borrowers shall, for each Fiscal Quarter,
maintain the Leverage Ratio in an amount less than or equal to
3.0:1.
(r) UNENCUMBERED DOMESTIC CASH BALANCE. The Borrowers shall, and shall
cause other Obligors to, at all times, maintain an Unencumbered
Domestic Cash Balance of greater than or equal to the aggregate
of:
(i) (A) up to and including December 31, 2003, the Total
Commitment Amount at such date less U.S.$95,000,000, (B)
from January 1, 2004 to December 31, 2004, the Total
Commitment Amount at such date less U.S.$80,000,000, and
(C) from and after January 1, 2005, the Total Commitment
Amount at such date less U.S.$65,000,000; and
(ii) the product obtained by multiplying (A) the greater of (i)
zero and (ii) U.S.$280 less the Projected Realized Price at
such date, by (B) the Projected Production at such date.
(s) PROVEN AND PROBABLE RESERVES. As at the last day of each Fiscal
Quarter, the forecast of the aggregate Reserves from producing
properties to the extent of the interests of the Companies therein
(excluding those properties located in Russia, Greece or Zimbabwe)
which will exist on the date immediately following the Maturity
Date shall exceed 5,000,000 ounces.
(t) FORT ▇▇▇▇ MINE. Kinross Canada shall, directly or indirectly, at
all times maintain 100% ownership of the Fort ▇▇▇▇ Mine.
(u) INTERCOMPANY INDEBTEDNESS. The Borrowers shall cause all
Indebtedness owing by any Obligor to any direct or indirect
Subsidiary of Kinross Canada (other than to another Obligor) to be
subordinated and postponed, pursuant to the Postponement and
Subordination Undertaking, to the Secured Obligations of such
Obligor for so long as a Default has occurred and is continuing.
(v) INVESTMENT ACCOUNTS. The Borrowers shall, and shall cause each
Guarantor to, maintain all cash and Cash Equivalents in the
Investment Accounts. The Borrowers shall forthwith notify the
Administrative Agent of any Investment Account established after
the date hereof with a financial institution other than the
Lenders and shall further provide to the Administrative Agent the
requested form of acknowledgement from such other financial
institution with respect to such Investment Account. The Borrowers
shall cause the Non-Guaranteeing Subsidiaries, other than the
Greek, Russian and Zimbabwian Subsidiaries, and the Obligors that
do not maintain an Investment Account to promptly Distribute all
cash balances, subject to appropriate working capital reserves, to
an Obligor that maintains an Investment Account.
(w) ERISA. The Borrowers shall, and shall cause each ERISA Affiliate
to, furnish to the Administrative Agent:
(i) promptly after receipt thereof (but in no event later than
30 days after such receipt), a copy of any notice any ERISA
Company receives after the date of this agreement from the
PBGC relating to the intention of the PBGC to terminate any
Plan or Plans or to appoint a trustee to administer any
Plan or Plans, if such termination or appointment would
result in a Material Adverse Effect;
(ii) within 10 days after the due date for filing with the PBGC
pursuant to Section 412(n) of the Code of a notice of
failure to make a required instalment or other payment with
respect to a Plan, a statement of a financial officer
setting forth details as to such failure and the action
proposed to be taken with respect thereto, together with a
copy of such notice given to the PBGC, but only if such
failure to make a required instalment would result in a
Material Adverse Effect; and
(iii) promptly and in any event within 30 days after receipt
thereof by any ERISA Company from the sponsor of a
Multiemployer Plan, a copy of each notice received by any
ERISA Company concerning (A) the imposition of any
Withdrawal Liability or (B) a determination that a
Multiemployer Plan is, or is expected to be, terminated or
in reorganization, in each case within the meaning of Title
IV of ERISA, but only if the imposition of such withdrawal
liability, in the case of
clause (A), or such termination or reorganization, in the
case of clause (B), would result in a Material Adverse
Effect.
(x) BOOKS AND RECORDS. The Borrowers shall, and shall cause the
Material Subsidiaries to, keep proper books of account and records
covering all its business and affairs on a current basis, make
full, true and correct entries of its transactions in such books,
set aside on its books from their earnings all such proper
reserves as required by generally accepted accounting principles
and permit representatives of the Administrative Agent to inspect
such books of account, records and documents and to make copies
therefrom during reasonable business hours and upon reasonable
notice and to discuss the affairs, finances and accounts of such
Company with its auditors during reasonable business hours and
upon reasonable notice.
(y) NOTICE OF DEFAULT OR EVENT OF DEFAULT. Upon the occurrence of
either a Default or an Event of Default of which any Borrower is
aware, such Borrower shall promptly deliver to the Administrative
Agent a notice specifying the nature and date of occurrence of
such Default or Event of Default, such Borrower's assessment of
the duration and effect thereof and the action which such Borrower
proposes to take with respect thereto.
(z) MATERIAL CONTRACTS. The Borrower shall provide to the
Administrative Agent a copy of each amendment to any of the
provisions of any of the Material Contracts at the time that it
delivers its next Compliance Certificate pursuant to Section
11.1(a).
(aa) ADDITIONAL GUARANTORS. Upon the direct or indirect formation or
acquisition by Kinross Canada of a Material Subsidiary or upon a
Subsidiary of Kinross Canada becoming a Material Subsidiary,
unless such Subsidiary is already an Obligor, one of the Greek,
Russian and Zimbabwian Subsidiaries or such Subsidiary is
designated in writing as a Non-Guaranteeing Subsidiary by the
Majority Lenders, Kinross Canada shall forthwith cause such
Subsidiary to deliver to the Administrative Agent all of the
documents referred to in Sections 12.2(b), (c), (h), (i), (j) and
(k) as such documents would relate to such Subsidiary as a
Guarantor, whereupon such Subsidiary shall become an Additional
Guarantor for all purposes of this agreement.
(bb) ADDITIONAL BORROWERS. By written notice given to the
Administrative Agent with the written consent of all of the
Lenders in their sole and absolute discretion, Kinross Canada may
designate any wholly-owned Subsidiary as an Additional Borrower
and such Subsidiary shall become an Additional Borrower upon the
delivery to the Administrative Agent of all of the documents
referred to in Sections 12.2(b), (c), (h), (i), (j) and (k) as
such documents would relate to such Subsidiary as a Borrower and a
duly executed Borrower Instrument of Adhesion.
(cc) TEMPORARY LETTERS. The Borrowers shall use commercially reasonable
efforts to replace all of the Temporary Letters with Letters on or
prior to July 31, 2003.
11.2 RESTRICTIVE COVENANTS
The Borrowers hereby covenant and agree with the
Administrative Agent and the Lenders that, until all credit outstanding
hereunder has been repaid in full and the Credit Facility has been terminated,
and unless waived in writing in accordance with Section 14.14:
(a) LIENS. The Borrowers shall not, and shall not permit or suffer any
Material Subsidiary to, enter into or grant, create, assume or
suffer to exist any Lien affecting any of their respective
properties, assets or undertaking, whether now owned or hereafter
acquired, save and except only for the Permitted Liens.
(b) CORPORATE EXISTENCE. The Borrowers shall not, and shall not permit
or suffer any Material Subsidiary to, take part in any
amalgamation, merger, dissolution, winding up, corporate
reorganization, capital reorganization or similar proceeding or
arrangement or discontinue any businesses; provided, however, that
the foregoing shall not prohibit amalgamations or corporate
reorganizations solely between two or more Obligors or solely
between two or more Material Subsidiaries that are not Obligors
provided (x) notice of such amalgamation or corporate
reorganization (and reasonable details thereof) has been provided
by the Borrowers to the Administrative Agent ten Banking Days
before the proposed implementation date of such amalgamation or
corporate reorganization and (y) the Administrative Agent is
satisfied, in its sole discretion acting reasonably, that the
completion of such amalgamation or corporate reorganization would
not adversely affect any rights of the Administrative Agent or any
of the Lenders under any Guarantee or any Security Document and
(z) no Default or Event of Default has occurred and is continuing
at the time of such proposed implementation and no Default or
Event of Default would arise immediately thereafter.
(c) DISPOSITION OF ASSETS. Kinross Canada shall not suffer or permit
the sale or other disposition of all or substantially all of the
assets of any operating mine which is owned by any Company or all
or substantially all of the direct or indirect interest of any
Company in any operating mine. Kinross Canada shall not suffer or
permit the sale or other disposition of any of the shares of the
Companies. The Borrowers shall not, and shall not suffer or permit
any of the Material Subsidiaries to, sell or otherwise dispose of
any of their respective assets by way of Sale Leaseback, other
than in connection with Capital Leases permitted hereby. The
foregoing prohibitions and any prohibitions in any Security
Documents on sale or other disposition shall not prohibit (x) the
Companies allowing mineral claims to lapse on the Undeveloped
Portion of the Fort ▇▇▇▇ Mine or (y) the Companies selling or
granting participating interests (by way of joint venture,
farm-out or otherwise) with respect to the Undeveloped Portion of
the Fort ▇▇▇▇ Mine. Notwithstanding any prohibitions herein or in
any Security Documents in respect of the sale or other disposition
of any property of the Companies, the Companies shall be entitled
to sell or otherwise dispose of, free and clear of the Security,
(A) inventory and worn out, unserviceable or obsolete equipment in
the ordinary course of business, (B) Non-Core Assets for their
fair market value
provided that no Default has occurred and is continuing at the
time of such sale or disposition and (C) other assets in the
ordinary course of business for fair market value, provided that
no Default has occurred and is continuing at the time of such sale
or disposition and the aggregate gross proceeds of such sales and
dispositions do not exceed $10,000,000 in any Fiscal Year. The
Administrative Agent shall execute and deliver, at the sole
expense of the Borrowers, all such partial releases and discharges
as the Borrowers may reasonably require in respect of any sale or
other disposition of property permitted hereunder.
(d) CAPITAL AND EXPLORATION EXPENDITURES. The aggregate amount of
Capital Expenditures and Exploration Expenditures during any
Fiscal Year shall not exceed $80,000,000.
(e) GOLD HEDGING CONTRACTS. The Borrowers shall not, and shall not
suffer or permit the Material Subsidiaries to, have outstanding
any gold hedging contracts which create matured or contingent
obligations to deliver gold in the aggregate in excess of 75% of
the projected production of the Companies in any future 12 month
period, such projected production (x) to be based upon the most
recent budget of Kinross Canada delivered to the Administrative
Agent pursuant to Section 11.1(a)(vi), such budget to be in
substantially the form previously delivered by Kinross Canada to
the Administrative Agent and (y) to be based on assumptions
acceptable to the Majority Lenders, acting reasonably.
(f) REGULATION U OR X. The Borrowers shall not, and shall not suffer
or permit any Material Subsidiary to, engage in the business of
extending credit for the purpose of purchasing or carrying margin
stock. The Borrowers shall not use any of the proceeds of any
credit extended hereunder to "purchase" or "carry" any "margin
stock" as defined in Regulation U of the F.R.S. Board.
(g) HEDGING AGREEMENTS. The Borrowers shall not, and shall not suffer
or permit any Material Subsidiary to, enter into any Hedging
Agreement or derivative contract for speculative purposes or enter
into any Hedging Agreement with any counterparty on a margined
basis. This covenant shall not apply to any Hedging Agreements
(collectively, the "EXISTING MARGINED AGREEMENTS") entered into on
a margined basis by any of TVX Gold, ▇▇ ▇▇▇▇▇ or their respective
Subsidiaries prior to the completion of the Transaction, provided
there are no further trades under any particular Existing Margined
Agreement after the date hereof until such Existing Margined
Agreement ceases to be on a margined basis. The Borrowers shall,
on or prior to July 31, 2003, terminate the Existing Margined
Agreements or amend them so that they are no longer on a margined
basis. Each Lender hereby consents to all Liens created by any
Security Documents in any rights of any Obligors in or to any
Hedging Agreements to which such Lender is a party.
(h) AMENDMENTS. The Borrowers shall not suffer or permit any
amendment, modification, supplement, replacement, waiver or
termination to or of any provision of the IRB Loan Agreements to
the extent such amendments relate to rate, amortization, term or
security and are adverse to the interests of the
Borrowers. The Borrowers shall not suffer or permit any
termination of any of the Material Contracts and, except in
accordance with commercially reasonable and prudent mining
practices, shall not suffer or permit any amendment, modification,
supplement, replacement or waiver of a material nature to or of
any provision of any Material Contract. The Borrowers shall not,
and shall not suffer or permit any of the Material Subsidiaries
to, amend their articles of incorporation, other than to effect a
transaction permitted hereunder or for changes that are to be
reported to the Administrative Agent pursuant hereto, provided
that the Borrowers are not in default of such reporting
obligation.
(i) DISTRIBUTIONS. Except as set forth in the following sentence, the
Borrowers shall not, and shall not suffer or permit the Material
Subsidiaries to, make any Distribution (except to an Obligor). The
Borrowers may make, suffer or permit the following Distributions:
(i) scheduled payments of interest with respect to any
Indebtedness of an Obligor which is subordinated to the
Secured Obligations of such Obligor;
(ii) Distributions not to exceed U.S. $3,100,000 in the
aggregate with respect to the redemption of the redeemable,
retractable preferred shares of Kinross Canada, provided
always that any such Distribution is in accordance with the
terms of such shares as they existed as of March 8, 2000
and the source of funds for such Distributions is the
issuance of common equity;
(iii) Distributions with respect to the Series B Shares of Kinam
Gold, provided always that any such Distribution is in
accordance with terms of such shares as they existed at the
date hereof and such Distributions to Persons other than
Obligors do not exceed U.S. $1,500,000 in the aggregate in
any Fiscal Year;
(iv) Distributions with respect to the payment of dividends with
respect to the redeemable, retractable preferred shares of
Kinross Canada, provided always that any such Distribution
is in accordance with the terms of such shares as they
existed as of March 8, 2000; and
(v) Distributions in any Fiscal Year in respect of defeasance
or repurchase transactions relating to the Permitted
Debentures (A) not exceeding $5,000,000 in any Fiscal Year
if the source of funds for such Distributions is the
issuance of common equity prior to the date hereof; and (B)
without limit in any Fiscal Year if the source of the funds
for such Distribution is the issuance of common equity
after the date hereof;
in each case provided (x) no Default has occurred and is
continuing at the time of making any such Distribution and (y) no
Default would arise immediately after the making of any such
Distribution.
(j) INDEBTEDNESS. The Borrowers shall not, and shall not suffer or
permit any Material Subsidiary to, create, incur, assume or suffer
to exist any Indebtedness other than Permitted Indebtedness.
(k) INVESTMENTS. The Borrowers shall not, and shall not permit any of
the Material Subsidiaries to, make any Investments in any Person,
except:
(i) extensions of trade credit and asset purchases in the
ordinary course of business;
(ii) Permitted Portfolio Investments;
(iii) to the extent permitted by applicable law, loans and
advances to officers, directors and employees of any
Company (i) to finance the purchase of Shares of Kinross
Canada provided that the aggregate principal amount of such
loans and advances made in connection with all such
acquisitions shall not exceed U.S. $1,000,000 and (ii) for
additional purposes not contemplated by clause (i) above in
an aggregate principal amount at any time outstanding with
respect to this clause (ii) not exceeding U.S. $2,000,000.
(iv) Investments constituting non-cash proceeds of sales,
transfers and other dispositions of assets to the extent
permitted by Section 11.2(c);
(v) Investments in any Obligor;
(vi) additional Investments (including Investments constituting
the acquisition of business units) in an aggregate amount
not in excess of $20,000,000 in any Fiscal Year provided
that any such Investment is made (A) to pay for
environmental obligations; or (B) in the ordinary course of
business, in the same line of business as the Obligors, for
fair market value; and in each case, at a time when no
Default has occurred and is continuing or would arise as a
result of such Investment; (vii) Investments to the extent
that payment for such Investments is made solely with
Shares of Kinross Canada; and
(viii) Capital Expenditures and Exploration Expenditures to the
extent permitted under Section 11.2(d).
11.3 PERFORMANCE OF COVENANTS BY ADMINISTRATIVE AGENT
The Administrative Agent may, on the instructions of the Majority Lenders
and upon notice by the Administrative Agent to the Borrowers, perform any
covenant of the Borrowers under this agreement which the Borrowers fail to
perform or cause to be performed and which the Administrative Agent is capable
of performing, including any covenants the performance of which requires the
payment of money, provided that the Administrative Agent shall not be obligated
to perform any such covenant on behalf of the Borrowers and no such
performance by the Administrative Agent shall require the Administrative Agent
to further perform the Borrowers' covenants or shall operate as a derogation of
the rights and remedies of the Administrative Agent and the Lenders under this
agreement or as a waiver of such covenant by the Administrative Agent. Any
amounts paid by the Administrative Agent as aforesaid shall be reimbursed by the
Lenders in their Global Pro Rata Shares and shall be repaid by the Borrowers to
the Administrative Agent on behalf of the Lenders on demand.
ARTICLE 12
CONDITIONS PRECEDENT TO OBTAINING CREDIT
12.1 CONDITIONS PRECEDENT TO ALL CREDIT
The obligation of the Lenders to extend credit hereunder is subject to
fulfilment of the following conditions precedent on the date such credit is
extended:
(a) the relevant Borrower shall have complied with the requirements of
Article 4, Article 5 or Article 6, as the case may be, in respect
of the relevant credit;
(b) no Default has occurred and is continuing or would arise
immediately after giving effect to or as a result of such
extension of credit;
(c) the representations and warranties of the Borrowers contained in
Section 10.1 shall be true and correct in all respects on the date
such credit is extended as if such representations and warranties
were made on such date (representations and warranties made as of
the date hereof shall continue to refer to the date of this
agreement and not to the date that the representations and
warranties are deemed to have been repeated and representations
and warranties that will change as a result of a transaction
permitted hereby shall be deemed to have been amended to reflect
such change provided that the Borrowers are not in default of
their obligations to provide written notice thereof in accordance
with Section 11.1(a) or (i)); and
(d) the Credit Facility has not been terminated pursuant to Section
2.4.
12.2 CONDITIONS PRECEDENT TO INITIAL DRAWDOWN
The obligation of the Lenders to extend credit for the first time
hereunder is subject to fulfilment of the following conditions precedent on or
before March 31, 2003:
(a) the conditions precedent set forth in Section 12.1 have been
fulfilled;
(b) as continuing collateral security for the Secured Obligations,
each Obligor has duly executed and delivered to the Administrative
Agent the Security Documents to which it is a signatory, the
Guarantors have duly executed and delivered to the Administrative
Agent the Guarantees and the Borrowers have duly executed and
delivered to the Administrative Agent the Borrower Guarantees;
(c) the Administrative Agent has received, in form and substance
satisfactory to the Administrative Agent:
(i) a duly certified copy of the articles of incorporation,
articles of amalgamation or similar documents and by-laws
of each Obligor;
(ii) a certificate of status or good standing for each Obligor
issued by the appropriate governmental body or agency of
the jurisdiction in which such Obligor is incorporated;
(iii) a duly certified copy of the resolution of the board of
directors of each Obligor authorizing it to execute,
deliver and perform its obligations under each Credit
Documents to which such Obligor is a signatory and a duly
certified copy of the resolution of the board of directors
(if required under the constating documents or by-laws of
the Subsidiary) of each Pledged Subsidiary authorizing the
pledge of all of its issued and outstanding shares to the
Administrative Agent and any subsequent disposition thereof
by the Administrative Agent in realizing on the security
therein constituted by the relevant Security Documents;
(iv) a certificate of an officer of each Obligor, in such
capacity, setting forth specimen signatures of the
individuals authorized to sign the Credit Documents to
which such Obligor is a signatory;
(v) a certificate of a senior officer of Kinross Canada, in
such capacity, certifying that, to the best of his
knowledge after due inquiry, no Default has occurred and is
continuing or would arise immediately after giving effect
to or as a result of such extension of credit;
(vi) share certificates representing all of the issued and
outstanding shares of each of the Pledged Subsidiaries, in
each case duly endorsed in blank for transfer or attached
to duly executed stock transfers and powers of attorney;
(vii) copies of insurance policies, riders and endorsements,
insurance binders, certificates of insurance and statements
of coverage with respect to the insurance referred to in
Section 11.1(d);
(viii) an opinion of each Obligor's counsel addressed to the
Lenders, the Administrative Agent and its counsel, relating
to the status and capacity of each Obligor, the due
authorization, execution and delivery and the validity and
enforceability of the Credit Documents to which such
Obligor is a party in the jurisdiction of incorporation of
such Obligor and in the Province of Ontario and such other
matters as the Administrative Agent may reasonably request;
(ix) opinions of counsel to ▇▇▇▇▇ Creek and Fairbanks U.S. with
respect to the title to the Fort ▇▇▇▇ Deposit, True North
Deposit and ▇▇▇▇ ▇▇▇▇ Deposit, respectively;
(x) an opinion of the Administrative Agent's counsel with
respect to such matters as may be reasonably required by
the Administrative Agent in connection with the
transactions hereunder (including, without limitation, the
legality, validity and binding nature of the obligations of
the Obligors under, and the enforceability against the
Obligors of, the Credit Documents which are governed by the
laws of the Province of Ontario);
(xi) certified copies of the IRB Loan Agreements, each of the
trust indentures under which the Industrial Revenue Bonds
are issued and each of the Material Contracts; and
(xii) a true copy of the Management Information Circular;
(d) there has not occurred a Material Adverse Change;
(e) all commitments of all lenders under the Existing Credit Agreement
shall have been terminated and any collateral security therefor
released and discharged;
(f) the Co-Lead Arrangers shall be satisfied, in their sole and
absolute discretion, with:
(i) their review of all agreements evidencing Indebtedness of
the Borrowers and their Subsidiaries;
(ii) their review of all matters relating to the Transaction and
to the Obligors and their respective assets, including a
review of all joint venture documentation to which any
Obligor is a party and an analysis of each such Obligor's
access to cash flow from the relevant joint ventures and
any restrictions on the ability of each such Obligor to
sell or grant security in its interest in the relevant
joint ventures;
(iii) the results of the technical due diligence review of
Kinross Canada's consolidated operating and closure
properties conducted by the Independent Engineers,
encompassing a comprehensive audit of the data and
assumptions underlying Kinross Canada's financial
projections and life of mine plans as well as an
environmental review of Kinross Canada's closure plans and
associated reclamation cost projections; and
(iv) Kinross Canada's base case financial projections and
capitalization;
(g) the Combination and the JV Transaction shall have been completed
on the basis set forth in the Management Information Circular;
(h) the Administrative Agent has received the Postponement and
Subordination Undertaking and the Environmental Indemnity
Agreement, duly executed by all parties thereto;
(i) the Administrative Agent and its counsel shall be satisfied,
acting reasonably, that all necessary approvals, acknowledgements,
directions and consents have been given and that all relevant laws
have been complied with in respect of all agreements and
transactions (including the Transaction) referred to herein;
(j) all documents and instruments shall have been properly registered,
recorded and filed in all places which, searches shall have been
conducted in all jurisdictions which, and deliveries of all
consents, approvals, acknowledgements, undertakings, directions,
negotiable documents of title and other documents and instruments
to the Administrative Agent shall have been made which, in the
opinion of the Administrative Agent's counsel, acting reasonably,
are desirable or required to make effective the Security created
or intended to be created by the Obligors in favour of the
Administrative Agent pursuant to the Security Documents and to
ensure the perfection and the intended first-ranking priority of
such security;
(k) the Borrowers shall have paid to the Co-Lead Arrangers, the
Administrative Agent and the Lenders all fees and expenses
required to be paid on or before such initial extension of credit
pursuant to the Credit Documents. Such fees shall include, without
limitation, with respect to each Existing Letter, the payment by
the relevant Borrowers of an amount equal to the amount that would
have been payable by such Borrowers if such Existing Letter had
been initially issued under this agreement (for the balance of its
term); and
(l) all current account documentation shall have been completed to the
satisfaction of the Administrative Agent.
12.3 WAIVER
The terms and conditions of Sections 12.1 and 12.2 are inserted for the
sole benefit of the Administrative Agent and the Lenders, and the Lenders may
waive them in accordance with Section 14.14, in whole or in part, with or
without terms or conditions, in respect of any extension of credit, without
prejudicing their right to assert the terms and conditions of Section 12.1 in
whole or in part in respect of any other extension of credit.
12.4 IMPORT OF EXISTING LETTERS
The parties acknowledge that the Issuing Lender has previously issued the
Existing Letters for the account of Kinross Canada, Kinross U.S.A. and the other
Companies under the Existing Credit Agreement and other credit arrangements. The
parties hereby agree that, upon the date of the completion of the fulfilment of
the conditions precedent set forth in Sections 12.1(b) to (d) and 12.2(b) to
(l), all Existing Letters shall be deemed to be Letters issued by the Issuing
Lender under the Credit Facility, the provisions of this agreement shall
henceforth apply thereto and supersede the Existing Credit Agreement and such
other credit arrangements
and any other reimbursement agreement previously executed by Kinross Canada in
respect thereof and such deeming shall constitute the initial drawdown
hereunder. For the purpose of Section 7.7, such letters shall be deemed to have
been issued hereunder on the aforesaid date for a term equal to the balance of
the term of the corresponding Existing Letter of Credit.
ARTICLE 13
DEFAULT AND REMEDIES
13.1 EVENTS OF DEFAULT
Upon the occurrence of any one or more of the following events, unless
expressly waived in writing in accordance with Section 14.14:
(a) the breach by any Borrower of the provisions of Section 9.1;
(b) the failure of any Obligor to pay any amount due under the Credit
Documents (other than amounts due pursuant to Section 9.1) within
three Banking Days after the payment is due;
(c) the commencement by any Company or Mine Owner or by any other
Person of proceedings for the dissolution, liquidation or winding
up of such Company or Mine Owner or for the suspension of
operations of such Company or Mine Owner (other than such
proceedings commenced by another Person which are diligently
defended and are discharged, vacated or stayed within thirty days
after commencement);
(d) if any Company or Mine Owner ceases or threatens to cease to carry
on its business or is adjudged or declared bankrupt or insolvent
or admits its inability to pay its debts generally as they become
due or fails to pay its debts generally as they become due or
makes an assignment for the benefit of creditors, petitions or
applies to any tribunal for the appointment of a receiver or
trustee for it or for any part of its property (or such a receiver
or trustee is appointed for it or any part of its property), or
commences (or any other Person commences) any proceedings relating
to it under any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law
or statute of any jurisdiction whether now or hereafter in effect
(other than such proceedings commenced by another Person which are
diligently defended and are discharged, vacated or stayed within
thirty days after commencement), or by any act indicates its
consent to, approval of, or acquiescence in, any such proceeding
for it or for any part of its property, or suffers the appointment
of any receiver or trustee, sequestrator or other custodian;
(e) if any representation or warranty made by any Obligor in this
agreement or in any other document, agreement or instrument
delivered pursuant hereto or referred to herein or any material
information furnished in writing to the Administrative Agent by
any Obligor proves to have been incorrect in any material respect
when made or furnished and continues to be incorrect in any
material respect for thirty days after the Administrative Agent
has given Kinross Canada notice thereof;
(f) if a writ, execution, attachment or similar process is issued or
levied against all or any portion of the property of Obligor in
connection with any judgment against it in an amount of at least
$10,000,000, and such writ, execution, attachment or similar
process is not released, bonded, satisfied, discharged, vacated or
stayed within thirty days after its entry, commencement or levy;
(g) the breach or failure of due observance or performance by any
Obligor of any covenant or provision of any Credit Document (other
than those previously referred to in this Section 13.1) or of any
other document, agreement or instrument delivered pursuant hereto
or thereto or referred to herein or therein to which the
Administrative Agent or any of the Lenders is a party and such
breach or failure continues for ten Banking Days after the
Administrative Agent has given Kinross Canada notice of such
breach or failure;
(h) if one or more encumbrancers, liens or landlords take possession
of any part of the property of any Obligor or attempt to enforce
their security or other remedies against such property (other than
at the expiry of the relevant lease) and their claims remain
unsatisfied for such period as would permit such property to be
sold thereunder and such property which has been repossessed or is
capable of being sold has an aggregate fair market value of at
least $3,000,000;
(i) if an event of default under any one or more agreements,
indentures or instruments, under which any Company has outstanding
Indebtedness (other than Non-Recourse Indebtedness) in an amount
of at least $10,000,000 or under which another Person has
outstanding Indebtedness in an amount of at least $10,000,000
which is guaranteed by any Company, shall happen (with all
applicable grace periods having expired) and be continuing, or if
any Indebtedness of or guaranteed by any Company in an amount of
at least $10,000,000 which is payable on demand is not paid on
demand;
(j) if any Company shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any
Indebtedness in an amount of at least $10,000,000 when and as the
same shall become due and payable after giving effect to any
applicable grace periods and such failure is continuing;
(k) any Person or combination of Persons acting in concert acquires
direct or indirect beneficial ownership of more than 50% of the
outstanding voting securities of Kinross Canada;
(l) any ERISA Company shall fail to pay when due an amount or amounts
aggregating in excess of $1,000,000 which it shall have become
liable to pay under Section 4062, 4063 or 4064 of ERISA; or notice
of intent to terminate a Plan shall be filed under Title IV of
ERISA by any ERISA Company, any plan administrator or any
combination of the foregoing if such termination would result in a
Material Adverse Effect; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or
to cause a trustee to be appointed
to administer any Plan, if such action by the PBGC would result in
a Material Adverse Effect; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more ERISA Companies
to incur a current annual payment obligation in excess of
$1,000,000;
(m) the breach or failure of due observance by any of the Subsidiaries
of the Borrowers (other than the Companies) of any of the
covenants or provisions under the Postponement and Subordination
Undertaking;
(n) any one or more of the Credit Documents is determined by a court
of competent jurisdiction not to be a legal, valid and binding
obligation of any Obligor which is a party thereto, enforceable by
the Administrative Agent, the Lenders or any of them against such
Obligor and such Credit Document has not been replaced by a legal,
valid, binding and enforceable document which is equivalent in
effect to such Credit Document, assuming such Credit Document had
originally been legal, valid, binding and enforceable, in form and
substance acceptable to the Administrative Agent, within 30 days
of such determination, provided, however, that such grace period
shall only be provided if such Obligor actively co-operates with
the Administrative Agent to so replace such Credit Document; or
(o) a Material Adverse Change occurs;
the Administrative Agent (with the approval and instructions of the Majority
Lenders) may, by notice to the Borrowers, terminate the Credit Facility
(provided, however, that the Credit Facility shall automatically terminate,
without notice of any kind, upon the occurrence of an event described in clause
(c) or (d) above) and the Administrative Agent (with the approval and
instructions of the Majority Lenders) may, by the same or further notice to the
Borrowers, declare all indebtedness of the Borrowers to the Lenders pursuant to
this agreement (including (i) the present value of the face amount of all
Bankers' Acceptances issued and outstanding hereunder based on their respective
maturity dates, such present value to be calculated using a discount rate equal
to the yield of Government of Canada treasury bills having a similar maturity
date and (ii) the then contingent liability of the Issuing Lender under all
Letters) to be immediately due and payable whereupon all such indebtedness shall
immediately become and be due and payable and the Security shall become
immediately enforceable without further demand or other notice of any kind, all
of which are expressly waived by the Borrowers (provided, however, that all such
indebtedness of the Borrowers to the Lenders shall automatically become due and
payable and the Security shall become immediately enforceable, without notice of
any kind, upon the occurrence of an event described in clause (c) or (d) above).
Upon the payment by the Canadian Borrowers to the Canadian Lenders of the
present value of the face amount of all Bankers' Acceptances issued and
outstanding hereunder, the Canadian Borrowers shall have no further liability to
the Canadian Lenders with respect to such Bankers' Acceptances. Upon the payment
by the Borrowers to the Issuing Lender of the then contingent liability under
all outstanding Letters, the Borrowers shall have no further liability to the
Issuing Lender with respect to such Letters.
13.2 REFUND OF OVERPAYMENTS
With respect to each Letter for which the Issuing Lender has been paid
all of its contingent liability pursuant to Section 9.1, 9.6 or Section 13.1 and
provided that all amounts due by the Borrowers to the Issuing Lender under
Section 9.1, 9.6 and Section 13.1 have been paid, the Issuing Lender agrees to
pay to the Borrowers, upon the later of
(a) if the Letter is subject to an Order, the date on which any final
and non-appealable order, judgment or other determination has been
rendered or issued either permanently enjoining the Issuing Lender
from paying under such Letter or terminating any outstanding
Order; and
(b) the earlier of:
(i) the date on which either the original counterpart of such
Letter is returned to the Issuing Lender for cancellation
or the Issuing Lender is released by the beneficiary
thereof from any further obligations in respect of such
Letter;
(ii) the expiry of such Letter; and
(iii) (where the contingent liability under such Letter is less
than the face amount thereof), all amounts possibly payable
under such Letter have been paid;
an amount equal to any excess of the amount received by the Issuing Lender
hereunder in respect of its contingent liability under such Letter over the
total of amounts applied to reimburse the Issuing Lender for amounts paid by it
under or in connection with such Letter (the Issuing Lender having the right to
so appropriate such funds).
13.3 REMEDIES CUMULATIVE
The Borrowers expressly agree that the rights and remedies of the
Administrative Agent and the Lenders under this agreement are cumulative and in
addition to and not in substitution for any rights or remedies provided by law.
Any single or partial exercise by the Administrative Agent or any Lender of any
right or remedy for a default or breach of any term, covenant or condition in
this agreement does not waive, alter, affect or prejudice any other right or
remedy to which the Administrative Agent or such Lender may be lawfully entitled
for the same default or breach. Any waiver by the Administrative Agent with the
approval of the Majority Lenders or all of the Lenders in accordance with
Section 14.14 of the strict observance, performance or compliance with any term,
covenant or condition of this agreement is not a waiver of any subsequent
default and any indulgence by the Lenders with respect to any failure to
strictly observe, perform or comply with any term, covenant or condition of this
agreement is not a waiver of the entire term, covenant or condition or any
subsequent default. No failure or delay by the Administrative Agent or any
Lender in exercising any right shall operate as a waiver of such right nor shall
any single or partial exercise of any power or right preclude its further
exercise or the exercise of any other power or right.
13.4 SET-OFF
In addition to any rights now or hereafter granted under applicable law,
and not by way of limitation of any such rights, the Administrative Agent and
each Lender is authorized, at any time that an Event of Default and has occurred
and is continuing without notice to the Borrowers or to any other person, any
such notice being expressly waived by the Borrowers, to set-off, appropriate and
apply any and all deposits, matured or unmatured, general or special, and any
other indebtedness at any time held by or owing by the Administrative Agent or
such Lender, as the case may be, to or for the credit of or the account of the
Borrowers against and on account of the obligations and liabilities of the
Borrowers which are due and payable to the Administrative Agent or such Lender,
as the case may be, under the Finance Documents.
ARTICLE 14
THE ADMINISTRATIVE AGENT
14.1 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT
Each Lender hereby appoints and authorizes, and hereby agrees that it
will require any assignee of any of its interests in the Credit Documents (other
than the holder of a participation in its interests herein or therein) to
appoint and authorize the Administrative Agent to take such actions as agent on
its behalf and to exercise such powers under the Credit Documents as are
delegated to the Administrative Agent by such Lender by the terms hereof,
together with such powers as are reasonably incidental thereto. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall be liable to any of the Lenders for any action taken or omitted to be
taken by it or them thereunder or in connection therewith, except for its own
gross negligence or wilful misconduct and each Lender hereby acknowledges that
the Administrative Agent is entering into the provisions of this Section 14.1 on
its own behalf and as agent and trustee for its directors, officers, employees
and agents.
14.2 INTEREST HOLDERS
The Administrative Agent may treat each Lender set forth in Schedule A
hereto or the person designated in the last notice delivered to it under Section
15.5 as the holder of all of the interests of such Lender under the Credit
Documents.
14.3 CONSULTATION WITH COUNSEL
The Administrative Agent may consult with legal counsel selected by it as
counsel for the Administrative Agent and the Lenders and shall not be liable for
any action taken or not taken or suffered by it in good faith and in accordance
with the advice and opinion of such counsel.
14.4 DOCUMENTS
The Administrative Agent shall not be under any duty to the Lenders to
examine, enquire into or pass upon the validity, effectiveness or genuineness of
the Credit Documents or any instrument, document or communication furnished
pursuant to or in connection with the Credit Documents and the Administrative
Agent shall, as regards the Lenders, be entitled to
assume that the same are valid, effective and genuine, have been signed or sent
by the proper parties and are what they purport to be.
14.5 ADMINISTRATIVE AGENT AS LENDER
With respect to those portions of the Credit Facility made available by
it, the Administrative Agent shall have the same rights and powers under the
Credit Documents as any other Lender and may exercise the same as though it were
not the Administrative Agent. The Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Borrowers and their Affiliates and persons doing business with the
Borrowers and/or any of their Affiliates as if it were not the Administrative
Agent and without any obligation to account to the Lenders therefor.
14.6 RESPONSIBILITY OF ADMINISTRATIVE AGENT
The duties and obligations of the Administrative Agent to the Lenders
under the Credit Documents are only those expressly set forth herein. The
Administrative Agent shall not have any duty to the Lenders to investigate
whether a Default or an Event of Default has occurred. The Administrative Agent
shall, as regards the Lenders, be entitled to assume that no Default or Event of
Default has occurred and is continuing unless the Administrative Agent has
actual knowledge or has been notified by a Borrower of such fact or has been
notified by a Lender that such Lender considers that a Default or Event of
Default has occurred and is continuing, such notification to specify in detail
the nature thereof.
14.7 ACTION BY ADMINISTRATIVE AGENT
The Administrative Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights which may be
vested in it on behalf of the Lenders by and under this agreement; provided,
however, that the Administrative Agent shall not exercise any rights under
Section 13.1 or under the Guarantees, the Borrower Guarantees or the Security
Documents or expressed to be on behalf of or with the approval of the Majority
Lenders without the request, consent or instructions of the Majority Lenders.
Furthermore, any rights of the Administrative Agent expressed to be on behalf of
or with the approval of the Majority Lenders shall be exercised by the
Administrative Agent upon the request or instructions of the Majority Lenders.
The Administrative Agent shall incur no liability to the Lenders under or in
respect of any of the Credit Documents with respect to anything which it may do
or refrain from doing in the reasonable exercise of its judgment or which may
seem to it to be necessary or desirable in the circumstances, except for its
gross negligence or wilful misconduct. The Administrative Agent shall in all
cases be fully protected in acting or refraining from acting under any of the
Credit Documents in accordance with the instructions of the Majority Lenders and
any action taken or failure to act pursuant to such instructions shall be
binding on all Lenders. In respect of any notice by or action taken by the
Administrative Agent hereunder, the Borrowers shall at no time be obliged to
enquire as to the right or authority of the Administrative Agent to so notify or
act.
14.8 NOTICE OF EVENTS OF DEFAULT
In the event that the Administrative Agent shall acquire actual knowledge
or shall have been notified of any Default or Event of Default, the
Administrative Agent shall promptly notify the Lenders and shall take such
action and assert such rights under Section 13.1 of this agreement and under the
other Credit Documents as the Majority Lenders shall request in writing and the
Administrative Agent shall not be subject to any liability by reason of its
acting pursuant to any such request. If the Majority Lenders shall fail for five
Banking Days after receipt of the notice of any Default or Event of Default to
request the Administrative Agent to take such action or to assert such rights
under any of the Credit Documents in respect of such Default or Event of
Default, the Administrative Agent may, but shall not be required to, and subject
to subsequent specific instructions from the Majority Lenders, take such action
or assert such rights (other than rights under Section 13.1 of this agreement or
under the other Credit Documents and other than giving an express waiver of any
Default or any Event of Default) as it deems in its discretion to be advisable
for the protection of the Lenders except that, if the Majority Lenders have
instructed the Administrative Agent not to take such action or assert such
rights, in no event shall the Administrative Agent act contrary to such
instructions unless required by law to do so.
14.9 RESPONSIBILITY DISCLAIMED
The Administrative Agent shall be under no liability or responsibility
whatsoever as agent hereunder:
(a) to any Borrower or any other Person as a consequence of any
failure or delay in the performance by, or any breach by, any
Lender or Lenders of any of its or their obligations under any of
the Credit Documents;
(b) to any Lender or Lenders as a consequence of any failure or delay
in performance by, or any breach by, any Borrower of any of its
obligations under any of the Credit Documents; or
(c) to any Lender or Lenders for any statements, representations or
warranties in any of the Credit Documents or in any other
documents contemplated thereby or in any other information
provided pursuant to any of the Credit Documents or any other
documents contemplated thereby or for the validity, effectiveness,
enforceability or sufficiency of any of the Credit Documents or
any other document contemplated thereby.
14.10 INDEMNIFICATION
The Lenders agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrowers) in their respective Pro Rata Shares from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of any of the Credit
Documents or any other document contemplated thereby or any action taken or
omitted by the Administrative Agent under any of the Credit Documents or any
document contemplated thereby, except that no Lender shall be liable to the
Administrative Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent.
14.11 CREDIT DECISION
Each Lender represents and warrants to the Administrative Agent that:
(a) in making its decision to enter into this agreement and to make
its Pro Rata Share of the Credit Facility available to the
Borrowers, it is independently taking whatever steps it considers
necessary to evaluate the financial condition and affairs of the
Borrowers and that it has made an independent credit judgment
without reliance upon any information furnished by the
Administrative Agent; and
(b) so long as any portion of a the Credit Facility is being utilized
by the Borrowers, it will continue to make its own independent
evaluation of the financial condition and affairs of the
Borrowers.
14.12 SUCCESSOR ADMINISTRATIVE AGENT
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may, with the prior written
consent of the Borrowers (which consent shall not be required for so long as an
Event of Default has occurred and is continuing), resign at any time by giving
30 days written notice thereof to the Borrowers and the Lenders. Upon any such
resignation, the Majority Lenders, with the prior written consent of the
Borrowers (which consent shall not be required (x) if the successor
Administrative Agent is an Affiliate or Subsidiary of the Administrative Agent
on the date hereof or (y) for so long as an Event of Default has occurred and is
continuing), shall have the right to appoint a successor Administrative Agent
who shall be one of the Lenders unless none of the Lenders wishes to accept such
appointment. If no successor Administrative Agent shall have been so appointed
and shall have accepted such appointment by the time of such resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and with the
prior written consent of the Borrowers (which consent shall not be required for
so long as an Event of Default has occurred and is continuing), appoint a
successor Administrative Agent which shall be a bank organized under the laws of
Canada which has combined capital and reserves in excess of Cdn. $250,000,000
and has an office in Toronto. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges, duties and obligations of the retiring
Administrative Agent (in its capacity as Administrative Agent but not in its
capacity as a Lender) and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder (in its capacity as Administrative
Agent but not in its capacity as a Lender). After any retiring Administrative
Agent's resignation hereunder as the Administrative Agent, provisions of this
Article 14 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent.
14.13 DELEGATION BY ADMINISTRATIVE AGENT
With the prior approval of the Majority Lenders, the Administrative Agent
shall have the right to delegate any of its duties or obligations hereunder as
Administrative Agent to any Affiliate of the Administrative Agent so long as the
Administrative Agent shall not thereby be relieved of such duties or
obligations.
14.14 WAIVERS AND AMENDMENTS
(a) Subject to Sections 14.14(b) and (c), any term, covenant or
condition of any of the Credit Documents may only be amended with
the prior consent of the Borrowers and the Majority Lenders or
compliance therewith may be waived (either generally or in a
particular instance and either retroactively or prospectively) by
the Majority Lenders and in any such event the failure to observe,
perform or discharge any such covenant, condition or obligation,
so amended or waived (whether such amendment is executed or such
consent or waiver is given before or after such failure), shall
not be construed as a breach of such covenant, condition or
obligation or as a Default or Event of Default.
(b) Notwithstanding Section 14.14(a), without the prior written
consent of each Lender, no such amendment or waiver shall
directly:
(i) increase the amount of the Credit Facility or the amount of
the Individual Commitment of any Lender with respect to the
Credit Facility;
(ii) extend the Maturity Date;
(iii) extend the time for the payment of interest on Loans,
forgive any portion of principal thereof, reduce the stated
rate of interest thereon or amend the requirement of pro
rata application of all amounts received by the
Administrative Agent in respect of the Credit Facility;
(iv) change the percentage of the Lenders' requirement to
constitute the Majority Lenders or otherwise amend the
definition of Majority Lenders;
(v) reduce the stated amount or postpone the date for payment
of any fees or other amount to be paid pursuant to Article
7 or Article 8 of this agreement;
(vi) permit any subordination of any of the Secured Obligations;
(vii) release, discharge or amend the joint and several covenant
of the Borrowers hereunder, release or discharge any of the
Security Documents or the Security or any of the
Guarantees, in whole or in part, or release any of the
Secured Assets from the Security, in whole or in part; or
(viii) alter the terms of this Section 14.14.
(c) No amendment to or waiver of any provision hereof to the extent it
affects the rights or obligations of the Administrative Agent
shall be effective without the prior written consent of the
Administrative Agent.
(d) Without the prior written consent of the Issuing Lender, no
amendment to or waiver of Article 14 or any other provision hereof
to the extent it affects the rights or obligations of the Issuing
Lender shall be effective.
14.15 DETERMINATION BY ADMINISTRATIVE AGENT CONCLUSIVE AND BINDING
Any determination to be made by the Administrative Agent on behalf of or
with the approval of the Lenders or the Majority Lenders under this agreement
shall be made by the Administrative Agent in good faith and, if so made, shall
be binding on all parties, absent manifest error.
14.16 ADJUSTMENTS AMONG LENDERS AFTER ACCELERATION
(a) The Lenders agree that, at any time after all indebtedness of the
Borrowers to the Lenders pursuant hereto has become immediately
due and payable pursuant to Section 13.1 or after the cancellation
or termination of the Credit Facility, they will at any time or
from time to time upon the request of any Lender through the
Administrative Agent purchase portions of the availments made
available by the other Lenders which remain outstanding, and make
any other adjustments which may be necessary or appropriate, in
order that the amounts of the availments made available by the
respective Lenders which remain outstanding, as adjusted pursuant
to this Section 14.16, will be in the same proportions as their
respective Pro Rata Shares thereof with respect to the Credit
Facility immediately prior to such acceleration, cancellation or
termination.
(b) The Lenders agree that, at any time after all indebtedness of the
Borrowers to the Lenders pursuant hereto has become immediately
due and payable pursuant to Section 13.1 or after the cancellation
or termination of the Credit Facility, the amount of any repayment
made by the Borrowers under this agreement, and the amount of any
proceeds of the exercise of any rights or remedies of the Lenders
under the Credit Documents, which are to be applied against
amounts owing hereunder as principal, will be so applied in a
manner such that to the extent possible, the availments made
available by the respective Lenders which remain outstanding,
after giving effect to such application, will be in the same
proportions as their respective Pro Rata Shares thereof with
respect to the Credit Facility immediately prior to the
cancellation of termination thereof immediately prior to such
acceleration, cancellation or termination.
(c) For greater certainty, the Lenders acknowledge and agree that
without limiting the generality of the provisions of Section
14.16(a) and (b), such provisions will have application if and
whenever any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off,
compensation, or otherwise), other than as a result of the netting
of exposures of a Lender under
Hedging Agreements as contemplated in Section 14.19(c), on account
of any monies owing or payable by a Borrower to it under the
Finance Documents in excess of its pro rata share of payments on
account of monies owing by such Borrower to all the Finance
Parties thereunder.
(d) Each Borrower agrees to be bound by and to do all things necessary
or appropriate to give effect to any and all purchases and other
adjustments made by and between the Lenders pursuant to this
Section 14.16.
14.17 REDISTRIBUTION OF PAYMENT
If a Lender shall receive payment of a portion of the aggregate amount of
principal and interest due to it hereunder which is greater than the proportion
received by any other Lender in respect of the aggregate amount of principal and
interest due in respect of the Credit Facility (having regard to the respective
Individual Commitments of the Lenders), the Lender receiving such
proportionately greater payment shall purchase a participation (which shall be
deemed to have been done simultaneously with receipt of such payment) in that
portion of the aggregate outstanding credit of the other Lender or Lenders so
that the respective receipts shall be pro rata to their respective participation
in the credits; provided, however, that if all or part of such proportionately
greater payment received by such purchasing Lender shall be recovered from the
relevant Borrower, such purchase shall be rescinded and the purchase price paid
for such participation shall be returned by such selling Lender or Lenders to
the extent of such recovery, but without interest.
14.18 DISTRIBUTION OF NOTICES
Except as otherwise expressly provided herein, promptly after receipt by
the Administrative Agent of any notice or other document which is delivered to
the Administrative Agent hereunder on behalf of the Lenders, the Administrative
Agent shall provide a copy of such notice or other document to each of the
Lenders.
14.19 DETERMINATION OF EXPOSURES
Prior to any distribution of Cash Proceeds of Realization to the Lenders,
the Administrative Agent shall request each Lender to provide to the
Administrative Agent a written calculation of such Lender's Exposure, each such
calculation to be certified true and correct by the Lender providing same. Each
Lender shall so provide such calculation within two Banking Days following the
request of the Administrative Agent. Any such calculation provided by a
particular Lender which is approved by the Administrative Agent shall, absent
manifest error, constitute PRIMA FACIE evidence of such Lender's Exposure at
such time. If the Administrative Agent does not approve any such calculation
provided by a particular Lender, the Administrative Agent and such Lender shall,
expeditiously and in good faith, make a determination of such Lender's Exposure
which the Administrative Agent approves. With respect to each determination of
the Exposure of the Lenders, the Administrative Agent shall promptly notify the
Lenders. For the purposes of determining a particular Lender's Exposure as of a
particular date:
(a) the Exposure of a Lender under this agreement and the Security
Documents shall be the aggregate amount (expressed in United
States dollars) owing to such Lender thereunder on such date;
(b) the Exposure of a Lender in respect of a cash management agreement
shall be the amount (expressed in United States dollars) which
would be owing by the relevant Borrower thereunder on such date if
such agreement was terminated on such date; and
(c) the Exposure of a Lender in respect of Hedging Agreements shall be
measured as the net exposure of such Lender under all Hedging
Agreements with all Borrowers to which such Lender is a party,
being the aggregate exposure of such Lender thereunder less the
aggregate exposure of the Borrowers thereunder; the exposure of
party to a Hedging Agreement shall be, in the case of a Hedging
Agreement which has not been terminated as of such date, the total
amount which such party would be obligated to pay to the other
party under such Hedging Agreement in the event of the early
termination by such other party as of such date of such Hedging
Agreement as a result of the occurrence of a default or event of
default (however specified or designated) with respect to such
party thereunder or, in the case of a Hedging Agreement which has
been terminated as of such date, the total amount which such party
is obligated to pay to the other party under such Hedging
Agreement, in each case expressed in United States dollars.
14.20 DECISION TO ENFORCE SECURITY
The Security shall become enforceable as provided in Article 13 or, after
the Termination Date, as provided in the Secured Risk Management Agreements.
Upon the Security becoming enforceable as aforesaid, the Administrative Agent
shall promptly so notify each of the Lenders. Any Lender may thereafter provide
the Administrative Agent with a written request to enforce the Security.
Forthwith after the receipt of such a request, the Administrative Agent shall
seek the instructions of the Majority Lenders as to whether the Security should
be enforced and the manner in which the Security should be enforced. In seeking
such instructions, the Administrative Agent shall submit a specific proposal to
the Lenders. The Administrative Agent shall promptly notify the Lenders of all
instructions and approvals of the Majority Lenders.
14.21 ENFORCEMENT
The Administrative Agent reserves the sole right to enforce, or otherwise
deal with, the Security and to deal with the Obligors in connection therewith;
provided, however, that the Administrative Agent shall so enforce, or otherwise
deal with, the Security as the Majority Lenders shall instruct.
14.22 APPLICATION OF CASH PROCEEDS OF REALIZATION
(a) All Proceeds of Realization not in the form of cash shall be
forthwith delivered to the Administrative Agent and disposed of,
or realized upon, by the Administrative Agent in such manner as
the Majority Lenders may approve so as to produce Cash Proceeds of
Realization.
(b) Subject to the claims, if any, of secured creditors of the
Obligors whose security ranks in priority to the Security, all
Cash Proceeds of Realization shall be applied and distributed, and
the claims of the Lenders shall be deemed to have the relative
priorities which would result in the Cash Proceeds of Realization
being applied and distributed, as follows:
(i) firstly, to the payment of all reasonable costs and
expenses incurred by or on behalf of the Administrative
Agent (including, without limitation, all legal fees and
disbursements) in the exercise of all or any of the powers
granted to it hereunder or under the Security Documents or
the Guarantees and in payment of all of the remuneration of
any Receiver and all costs and expenses properly incurred
by such Receiver (including, without limitation, all legal
fees and disbursements) in the exercise of all or any
powers granted to it under the Security Documents;
(ii) secondly, in payment of all amounts of money borrowed or
advanced by the Administrative Agent or such Receiver
pursuant to the Security Documents and any interest
thereon;
(iii) thirdly, to the payment or prepayment of the Secured
Obligations (including holding as cash collateral to be
applied against Secured Obligations which have not then
matured) to the Finance Parties pro rata in accordance with
their relative Exposures; and
(iv) the balance, if any, to the Borrowers or otherwise in
accordance with applicable law.
14.23 SECURITY DOCUMENTS
As continuing collateral security for the Secured Obligations, the
Borrowers shall, and shall cause the Guarantors to, execute and deliver the
Guarantees and the Security Documents. The Guarantees and the Security Documents
shall be entered into in favour of the Administrative Agent for the rateable
benefit of the Finance Parties. The Administrative Agent declares that it shall
hold the Security, the Secured Assets charged by the Security Documents and the
rights granted to it under the Credit Documents for its own benefit and in its
capacity as agent for the rateable benefit of each Finance Party.
14.24 [INTENTIONALLY DELETED]
14.25 SURVIVAL
The provisions of this Article 14 and all other provisions of this
agreement which are necessary to give effect to each of the provisions of this
Article 14 shall survive the Termination Date until such time as both the
Termination Date and the Maturity Date have occurred.
14.26 DISCHARGE OF SECURITY
The Security shall terminate on the later to occur of the Termination
Date and the Maturity Date unless the Security has become enforceable in
accordance with Section 14.20 at or prior to such time, in which case the
Security shall terminate when the Secured Obligations have been fully satisfied.
Upon the Security terminating, the Administrative Agent shall execute and
deliver, at the sole expense of the Borrowers, all such discharges and releases
as the Borrowers may reasonably require to give effect thereto.
ARTICLE 15
MISCELLANEOUS
15.1 NOTICES
All notices and other communications provided for herein shall be in
writing and shall be personally delivered to an officer or other responsible
employee of the addressee or sent by telefacsimile, charges prepaid, at or to
the applicable addresses or telefacsimile numbers, as the case may be, set out
opposite the parties name on the signature page hereof or at or to such other
address or addresses, telefacsimile number or numbers as any party hereto may
from time to time designate to the other parties in such manner. Any
communication which is personally delivered as aforesaid shall be deemed to have
been validly and effectively given on the date of such delivery if such date is
a Banking Day and such delivery received before 4:00 p.m. (Toronto time);
otherwise, it shall be deemed to have been validly and effectively given on the
Banking Day next following such date of delivery. Any communication which is
transmitted by telefacsimile as aforesaid shall be deemed to have been validly
and effectively given on the date of transmission if such date is a Banking Day
and such transmission was received before 4:00 p.m. (Toronto time); otherwise,
it shall be deemed to have been validly and effectively given on the Banking Day
next following such date of transmission.
15.2 SEVERABILITY
Any provision hereof which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
15.3 COUNTERPARTS
This agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original and all of which taken together shall be
deemed to constitute one and the same instrument.
15.4 SUCCESSORS AND ASSIGNS
This agreement shall enure to the benefit of and shall be binding upon
the parties hereto and their respective successors and permitted assigns.
15.5 ASSIGNMENT
(a) Neither the Credit Documents nor the benefit thereof may be
assigned by any Borrower.
(b) A Lender may at any time sell to one or more other persons
("Participants") participating interests in any credit outstanding
hereunder, any commitment of the Lender hereunder or any other
interest of the Lender hereunder. In the event of any such sale by
a Lender of a participating interest to a Participant, the
Lender's obligations under this agreement to the relevant Borrower
shall remain unchanged, the Lender shall remain solely responsible
for the performance thereof and the relevant Borrower shall
continue to be obligated to the Lender in connection with the
Lender's rights under this agreement. Each Borrower agrees that if
amounts outstanding under this agreement are due and unpaid, or
shall have been declared to be or shall have become due and
payable upon the occurrence of an Event of Default, or any Default
which might mature into an Event of Default, each Participant
shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this agreement to
the same extent as if the amount of its participating interest
were owing directly to it as the relevant Lender under this
agreement. Each Borrower also agrees that each Participant shall
be entitled to the benefits of Article 8 with respect to its
participation hereunder; provided, that no Participant shall be
entitled to receive any greater amount pursuant to such Article
than the Lender would have been entitled to receive in respect of
the amount of the participation transferred by the Lender to such
Participant had no such transfer occurred.
(c) With the prior written consent of the Issuing Lender and of the
Administrative Agent, a Lender may at any time sell all or any
part of its rights and obligations under the Credit Documents (but
not less than $5,000,000) to one or more Persons ("Purchasing
Lenders"), provided that such consent is not required in the case
of the sale by a Schedule II Lender to its Affiliate that is
listed in Schedule III to the BANK ACT (Canada) and further
provided that any Lender which comprises both a Canadian Lender
and a U.S. Lender may only sell all or any part of its rights and
obligations under the Credit Documents to a Purchasing Lender
which comprises both a Canadian Lender and a U.S. Lender. Upon
such sale, the Lender shall, to the extent of such sale, be
released from its obligations under the Credit Documents (subject
always to its continuing obligations under Section 9.5) and each
of the Purchasing Lenders shall become a party to the Credit
Documents to the extent of the interest so purchased. Any such
assignment by a Lender shall not be effective unless and until
such Lender has paid to the Administrative Agent an assignment fee
in the amount of $3,500 for each Purchasing Lender, unless and
until the Purchasing Lender has executed an instrument
substantially in the form of Schedule C hereto whereby the
Purchasing Lender has agreed to be bound by the terms of the
Credit Documents as a Lender and has agreed to specific Individual
Commitments and a specific address and telefacsimile number for
the purpose of notices as provided in Section 15.1, unless and
until the requisite consents to such assignment have been
obtained, unless and until a copy of a fully
executed copy of such instrument has been delivered to each of the
Administrative Agent and the Borrowers. Upon any such assignment
becoming effective, Schedule A hereto shall be deemed to be
amended to include the Purchasing Lender as a Lender with the
specific Individual Commitment, address and telefacsimile number
as aforesaid and the Individual Commitment of the Lender making
such assignment shall be deemed to be reduced by the amount of the
Individual Commitment of the Purchasing Lender.
(d) Each Borrower authorizes the Administrative Agent and the Lenders
to disclose to any Participant or Purchasing Lender (each, a
"Transferee") and any prospective Transferee and authorizes each
of the Lenders to disclose to any other Lender any and all
financial information in their possession concerning such Borrower
which has been delivered to them by or on behalf of the Borrowers
pursuant to this agreement or which has been delivered to them by
or on behalf of the Borrowers in connection with their credit
evaluation of the Companies prior to becoming a party to this
agreement, so long as any such Transferee agrees not to disclose
any confidential, non-public information to any person other than
its non-brokerage affiliates, employees, accountants or legal
counsel, unless required by law.
15.6 ENTIRE AGREEMENT
This agreement and the agreements referred to herein and delivered
pursuant hereto (including, without limitation, the Fee Letters) constitute the
entire agreement between the parties hereto and supersede any prior agreements,
undertakings, declarations, representations and understandings, both written and
verbal, in respect of the subject matter hereof.
15.7 FURTHER ASSURANCES
The Borrowers shall from time to time and at all times hereafter, upon
every reasonable request of the Administrative Agent, make, do, execute, and
deliver or cause to be made, done, executed and delivered all such further acts,
deeds, assurances and things as may be necessary in the opinion of the
Administrative Agent for more effectually perfecting the Security and
implementing and carrying out the true intent and meaning of the Credit
Documents or any agreement delivered pursuant thereto and such additional
Security Documents in connection with the property, assets and undertakings of
the Obligors, in form and substance satisfactory to the Administrative Agent, as
the Administrative Agent may from time to time reasonably request, to ensure (i)
each Guarantor has executed and delivered a Guarantee and Security Documents,
(ii) the property, assets and undertakings of each Obligor are subject to a Lien
in favour of the Administrative Agent pursuant to one or more Security Documents
to the extent provided in the Security Documents and (iii) the intended first
ranking priority of such Liens.
15.8 JUDGMENT CURRENCY
(a) If, for the purpose of obtaining or enforcing judgment against any
Borrower in any court in any jurisdiction, it becomes necessary to
convert into a particular currency (such currency being
hereinafter in this Section 15.8 referred to as the
"Judgment Currency") an amount due in another currency (such other
currency being hereinafter in this Section 15.8 referred to as the
"Indebtedness Currency") under this agreement, the conversion
shall be made at the rate of exchange prevailing on the Banking
Day immediately preceding:
(i) the date of actual payment of the amount due, in the case
of any proceeding in the courts of the Province of Ontario
or in the courts of any other jurisdiction that will give
effect to such conversion being made on such date; or
(ii) the date on which the judgment is given, in the case of any
proceeding in the courts of any other jurisdiction (the
date as of which such conversion is made pursuant to this
Section 15.8(a)(ii) being hereinafter in this Section 15.8
referred to as the "Judgment Conversion Date").
(b) If, in the case of any proceeding in the court of any jurisdiction
referred to in Section 15.8(a)(ii), there is a change in the rate
of exchange prevailing between the Judgment Conversion Date and
the date of actual payment of the amount due, the Borrowers shall
pay to the appropriate judgment creditor or creditors such
additional amount (if any, but in any event not a lesser amount)
as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange prevailing on the
date of payment, will produce the amount of the Indebtedness
Currency which could have been purchased with the amount of
Judgment Currency stipulated in the judgment or judicial order at
the rate of exchange prevailing on the Judgment Conversion Date.
(c) Any amount due from the Borrowers under the provisions of Section
15.8(b) shall be due to the appropriate judgment creditor or
creditors as a separate debt and shall not be affected by judgment
being obtained for any other amounts due under or in respect of
this agreement.
(d) The term "rate of exchange" in this Section 15.8 means the noon
spot rate of exchange for Canadian interbank transactions applied
in converting the Indebtedness Currency into the Judgment Currency
published by the Bank of Canada for the day in question.
15.9 NOTICE OF REMEDIES
Each Borrower is personally obligated and fully liable for all amounts
due by it under this agreement. The Administrative Agent, the Lenders or any of
them has the right to ▇▇▇ on this agreement and obtain a personal judgment
against the Borrowers or any of them for satisfaction of the amount due
hereunder either before or after a judicial foreclosure of the Fort ▇▇▇▇ Deposit
Deed of Trust, the ▇▇▇▇ ▇▇▇▇ Deposit Deed of Trust, the True North Deposit Deed
of Trust or any of them (as the same are described in Schedule K) under Alaska
Statutes 09.45.170-09.45.220.
15.10 WAIVERS OF JURY TRIAL
THE BORROWERS, THE LENDERS AND THE ADMINISTRATIVE AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT TO WHICH IT
IS A PARTY AND FOR ANY COUNTERLAIM THEREIN.
IN WITNESS WHEREOF the parties hereto have executed and delivered this
agreement on the date first written above.
Kinross Gold Corporation KINROSS GOLD CORPORATION
52nd Floor, Scotia Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
By: /s/
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Attention: ▇▇▇▇▇ ▇▇▇▇▇, Vice-President and
Chief Financial officer and
▇▇▇▇▇ ▇▇▇▇, Vice-President and
Treasurer By:
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Kinross Gold U.S.A., Inc. KINROSS GOLD U.S.A., INC.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
By: /s/
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Attention: ▇▇▇▇▇ ▇▇▇▇▇, Vice-President and
Chief Financial Officer and
▇▇▇▇▇ ▇▇▇▇, Vice-President and
Treasurer By:
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Fairbanks Gold Mining, Inc. FAIRBANKS GOLD MINING, INC.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
By: /s/
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Attention: ▇▇▇▇▇ ▇▇▇▇▇, Vice-President
and Chief Financial Officer and
▇▇▇▇▇ ▇▇▇▇, Vice-President and
Treasurer By:
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Round Mountain Gold Corporation ROUND MOUNTAIN GOLD CORPORATION
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ By: /s/
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ------------------------------------------------------
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Vice-President
and Chief Financial Officer and
▇▇▇▇▇ ▇▇▇▇, Vice-President and By:
Treasurer ------------------------------------------------------
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, AS ADMINISTRATIVE AGENT
Corporate Banking - Loan Syndications
▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Managing Director By: /s/
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: By:
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Attention: Managing Director
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, AS CANADIAN LENDER
Corporate Banking - Mining
Scotia Plaza, 62nd Floor
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ By: /s/
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Attention: Managing Director
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ By:
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The Bank of Nova Scotia THE BANK OF NOVA SCOTIA
Atlanta Agency (ATLANTA AGENCY), AS U.S. LENDER
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/
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Attention: Managing Director
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ By:
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Societe Generale (Canada) SOCIETE GENERALE (CANADA), AS CANADIAN LENDER
1501 ▇▇▇▇▇▇ College Ave.
Suite 1800
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Director By: /s/
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
By:
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Societe Generale SOCIETE GENERALE, AS U.S. LENDER
1221 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director By: /s/
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
By:
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JPMorgan Chase Bank JPMORGAN CHASE BANK, AS U.S. LENDER
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Royal Bank Plaza, South Tower
Toronto, Ontario M5J 2J2
Attention: Vice President By: /s/
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
By:
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NM Rothschild & Sons Limited NM ROTHSCHILD & SONS LIMITED, AS U.S. LENDER
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director By: /s/
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
By:
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HSBC Bank USA HSBC BANK USA, AS U.S. LENDER
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President By: /s/
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
By:
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Royal Bank of Canada ROYAL BANK OF CANADA, AS U.S. LENDER
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Manager By: /s/
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
By:
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Commerzbank International S.A. COMMERZBANK INTERNATIONAL S.A., AS U.S. LENDER
▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Vice President By: /s/
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Telefax: 00352 477 911 386
By:
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Australia and New Zealand AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, AS U.S.
Banking Group Limited LENDER
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: Vice President By: /s/
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Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
By:
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