TENTH AMENDING AGREEMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 99.1
TENTH AMENDING AGREEMENT TO
FOURTH
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AGREEMENT dated as of the
22nd day
of December, 2022.
BETWEEN:
THE BANK OF NOVA SCOTIA, a Canadian
chartered bank
(herein, in its
capacity as administrative agent for the Lenders, called the
“Administrative
Agent”)
- and
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▇▇▇▇▇▇▇ MINES INC., a corporation
amalgamated under the laws of the Province of Ontario
(herein in its
capacity as the borrower, “DMI”)
- and
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▇▇▇▇▇▇▇ MINES CORP., a corporation
amalgamated under the laws of the Province of Ontario
(herein in its
capacity as the guarantor, “DMC” and, together with DMI, the
“Obligors”)
- and
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THE SEVERAL LENDERS FROM TIME TO TIME PARTY
THERETO (herein and therein in their capacities as lenders
to the Borrower, collectively called the “Lenders” and individually called a
“Lender”)
WHEREAS the Obligors, the Lenders and
the Administrative Agent entered into a fourth amended and restated
credit agreement dated as of January 30, 2015, (as amended by
amending agreements dated January 27, 2016, January 31, 2017,
January 15, 2018, April 9, 2018, January 29, 2019, January 29,
2020, January 14, 2021, January 21, 2022 and April 12, 2022, the
“Credit
Agreement”);
AND WHEREAS the parties hereto wish to,
inter alia, amend certain
provisions of the Credit Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES
that, in consideration of the mutual covenants and agreements
contained herein, the parties covenant and agree as
follows:
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ARTICLE 1
DEFINED TERMS
1.1 Capitalized
Terms.
All capitalized
terms which are used herein without being specifically defined
herein shall have the meanings ascribed thereto in the Credit
Agreement.
ARTICLE 2
AMENDMENTS TO CREDIT AGREEMENT
2.1 General
Rule.
Subject to the
terms and conditions herein contained, the Credit Agreement is
hereby amended to the extent necessary to give effect to the
provisions of this agreement and to incorporate the provisions of
this agreement into the Credit Agreement.
2.2 Increase
of Credit Facility.
The Obligors, the
Lenders, and the Administrative Agent hereby acknowledge and agree
that the Credit Facility shall be increased to the amount of
$23,964,250. Any and all references to the amount of the Credit
Facility in the Credit Agreement (including, without limitation,
Section 2.1 thereof and Schedule A thereto) shall be amended to
delete reference to “$22,972,050” and replaced with
“$23,964,250”.
2.3 Letters
or Letters of Credit.
Section 1.1 of
the Credit Agreement is hereby amended by deleting the definition
of “Letters or Letters of Credit” and replacing it with
the following:
“Letters” or “Letters of Credit” means
non-financial standby letters of credit or letters of guarantee
issued, for the sole purposes described in Section 11.1(c) hereof,
by the Issuing Lender (i) at the request, and on the credit, of the
Borrower and (ii) on behalf of the Borrower and, if applicable, a
Subsidiary of the Parent, each being denominated in Canadian
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, acting
reasonably, and being otherwise in a form satisfactory to the
Issuing Lender.
2.4 Maturity
Date.
Section 1.1 of
the Credit Agreement is hereby amended by deleting the definition
of “Maturity Date” and replacing it with the
following:
“Maturity Date” means January 31,
2024.
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2.5 Use
of Proceeds.
Section 11.1(c)
of the Credit Agreement is hereby deleted in its entirety and
replaced by the following:
“Use of Proceeds. The Borrower shall,
subject to the following sentence, apply all of the proceeds of the
Credit Facility solely towards its Reclamation Obligations, up to
$500,000 of which may be employed in respect of such Reclamation
Obligations within the geographic boundaries of the Province of
Saskatchewan and otherwise shall be employed solely in respect of
Reclamation Obligations on or at the ▇▇▇▇▇▇▇ Facilities. The
Borrower shall further be permitted to employ up to $992,200 of the
Credit Facility proceeds by way of a Letter of Credit availment
issued as performance security for feasibility field tests at the
▇▇▇▇▇▇▇ Project.”
ARTICLE 3
CONDITIONS PRECEDENT
3.1 Conditions
Precedent.
This agreement
shall not become effective until the Administrative Agent, for and
on behalf of the Lenders, has received from the Obligors (i) a
non-refundable extension fee in the amount of $25,000, (ii) an
officer certificate of a senior officer of each Obligor together
with a certified true copy of a resolution of the board of
directors of each Obligor authorizing the execution, delivery and
performance of this agreement by the applicable Obligor, (iii) a
legal opinion of counsel to the Obligors addressed to the
Administrative Agent and the Lenders relating to the status and
capacity of each Obligor and the due authorization, execution and
delivery of this agreement, the enforceability of the Credit
Agreement as amended by this agreement and such other matters as
the Administrative Agent may reasonably request, and (iv) except as
delivered under the Existing Credit Agreement, share certificates
representing all of the issued and outstanding shares of the
Borrower duly endorsed in blank for transfer or attached to duly
executed stock transfers and powers of attorney or as otherwise
required under Applicable Law.
ARTICLE 4
MISCELLANEOUS
4.1 No
Default.
The Obligors
represent and warrant to and in favour of the Administrative Agent
and the Lenders that no Default has occurred and is continuing as
at the date this agreement becomes effective and no Default would
arise immediately thereafter.
4.2 Future
References to the Credit Agreement.
On and after the
date of this agreement, each reference in the Credit Agreement to
“this agreement”, “hereunder”,
“hereof”, or words of like import referring to the
Credit Agreement, and each reference in any related document to the
“Credit Agreement”, “thereunder”,
“thereof”, or words of like import referring to the
Credit Agreement, shall mean and be a reference to the
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Credit Agreement
as amended hereby. The Credit Agreement, as amended hereby, is and
shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed.
4.3 Governing
Law.
This agreement
shall be governed by and construed in accordance with the laws of
the Province of Ontario and the federal laws of Canada applicable
therein.
4.4 Enurement.
This agreement
shall enure to the benefit of and shall be binding upon the parties
hereto and their respective successors and permitted
assigns.
4.5 Further
Assurances.
The Obligors
shall do, execute and deliver or shall cause to be done, executed
and delivered all such further acts, documents and things as the
Administrative Agent may reasonably request for the purpose of
giving effect to this agreement and to each and every provision
hereof.
4.6 Counterparts.
This agreement
may be executed and delivered in one or more original, emailed (in
..pdf format), faxed or by other electronic means, signed
counterparts, and by different parties in separate counterparts,
each of which shall be deemed to be an original and all of which
taken together shall be deemed to constitute one and the same
instrument.
4.7 Confirmation
of Security.
Each Obligor
confirms and agrees that the Liens and other obligations expressed
to be created under or pursuant to each Security Document to which
it is a party shall be binding upon such Obligor and its collateral
(as described in each such Security Document) shall be unaffected
by and shall continue in full force and effect notwithstanding the
amendment to the Credit Agreement as constituted hereby and the
execution and delivery and effectiveness of this agreement shall
not in any manner whatsoever reduce, release, discharge, impair or
otherwise prejudice or change the rights of the Finance Parties
arising under, by reason of or otherwise in respect of such Liens
and other obligations constituted by each such Security Document.
For the avoidance of doubt, each Obligor hereby confirms that each
Security Document to which it is a party secures its Secured
Obligations and that each such Security Document continues in full
force and effect.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto
have executed and delivered this agreement on the date first above
written.
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▇▇▇▇▇▇▇ Mines
Inc.
▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇
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▇▇▇▇▇▇▇ MINES INC.
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By:
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(signed) “▇▇▇▇▇ ▇▇▇▇▇”
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Attention:
Chief Financial Officer
Telefax: (▇▇▇)
▇▇▇-▇▇▇▇
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By:
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Name: ▇▇▇▇▇
▇▇▇▇▇
Title: President
& CEO
(signed) “▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇”
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Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
CFO
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▇▇▇▇▇▇▇ Mines
Corp.
▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇
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▇▇▇▇▇▇▇ MINES CORP.
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By:
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(signed) “▇▇▇▇▇ ▇▇▇▇▇”
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Attention:
Chief Financial Officer
Telefax: (▇▇▇)
▇▇▇-▇▇▇▇
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By:
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Name: ▇▇▇▇▇
▇▇▇▇▇
Title: President
& CEO
(signed) “▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇”
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Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Exec VP
& CFO
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The Bank of Nova Scotia
Corporate Banking – Loan
Syndications
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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THE BANK OF NOVA SCOTIA, as Administrative Agent
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Attention:
Managing Director
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By:
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(signed) “▇▇▇▇▇▇▇ ▇▇”
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Telefax: (▇▇▇)
▇▇▇-▇▇▇▇
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Name: ▇▇▇▇▇▇▇
▇▇
Title:
Director
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By:
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(signed)
“▇▇▇▇ ▇▇▇▇▇▇▇▇”
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Name: ▇▇▇▇
▇▇▇▇▇▇▇▇
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Title:
Associate
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The Bank of Nova
ScotiaCorporate Banking – Global Mining
▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, 6th Floor
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THE BANK OF NOVA SCOTIA, as Lender
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Toronto, Ontario
M5H 0B4
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By:
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(signed) “▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇”
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Name: ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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Attention:
Managing Director
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Title: Managing
Director
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Telefax: (▇▇▇)
▇▇▇-▇▇▇▇
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By:
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(signed) “▇▇▇▇▇ ▇▇▇▇▇▇▇”
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Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
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Title: Associate
Director
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Tenth Amending Agreement