EXHIBIT 10.39
AMENDMENT NO. 3 TO CREDIT AND GUARANTEE AGREEMENT, dated as of
December 31, 2023 (this “Amendment”), among CORE ALASKA, LLC, a Delaware limited liability company (the “Borrower”), CONTANGO ORE, INC., a Delaware corporation (“Contango”), ALASKA GOLD TORRENT, LLC, an Alaska limited liability company (“AGT”) and CONTANGO MINERALS ALASKA, LLC, an Alaska limited liability company (“CMA”), together with Contango and AGT, the “Guarantors”) and ING CAPITAL LLC, in its capacity as administrative agent (the “Administrative Agent) (with the consent of the Required Lenders (as defined below in the Credit Agreement referred to below)).
RECITALS:
WHEREAS, the Borrower has entered into that certain Credit and Guarantee Agreement, dated as of May 17, 2023, with the Administrative Agent, the Collateral Agent, the lenders (the “Lenders”) party thereto from time to time, the Guarantors, ING Capital LLC and Macquarie Bank Limited, as Mandated Lead Arrangers and ING Capital LLC, as Bookrunner (as amended pursuant to Amendment No. 1 dated as of July 17, 2023 and Amendment No. 2 dated as of August 15, 2023, the “Existing Credit Agreement” and as further amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, pursuant to Section 10.02(b) (Amendments, etc.) of the Credit Agreement, no amendment or waiver of any provision of the Credit Agreement, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing executed by each Loan Party and the Administrative Agent with the consent of the Required Lenders; and
WHEREAS, the Borrower hereby requests the Required Lenders to amend the Existing Credit Agreement to modify the minimum Projected Debt Service Coverage Ratio set forth in Section 5.22(b) (Financial Covenants) of the Existing Credit Agreement.
NOW, THEREFORE, in consideration of the premises and agreements, and provisions herein contained, the parties hereto agree as follows:
SECTION 1. Certain Defined Terms. Unless otherwise defined herein, all capitalized terms used herein (including the recitals hereto) shall have the respective meanings defined in the Credit Agreement. The rules of interpretation contained in Section 1.02 (Terms Generally) of the Credit Agreement are hereby incorporated by reference herein mutatis mutandis as if fully set forth herein.
SECTION 2. Amendment. With effect as of the Effective Date (as defined below), subject to the terms and conditions set forth herein, the Required Lenders hereby agree to amend the Existing Credit Agreement by amending and restating Section 5.22(b) (Financial Covenants) of the Existing Credit Agreement in its entirety as follows:
“(b) (i) from the date of this Agreement until April 30, 2024, the average Projected Debt Service Coverage Ratio (calculated as the average of the Projected Debt Service Coverage Ratio on all Calculation Dates until the Maturity Date pursuant to the most recently delivered Base Case Financial Model) is not less than 1.30:1 and (ii) the Projected Debt Service Coverage Ratio for each Calculation Date after May 1, 2024 until the Maturity Date is not less than 1.30:1;”
SECTION 3. Representations and Warranties. Each of the Borrower and the Guarantors hereby represents and warrants on the date hereof and on the Effective Date (as defined below):
(ii) this Amendment will constitute a legal, valid and binding obligation of such Loan Party, enforceable against it in accordance with its terms, except to the extent that the enforceability thereof may be limited by (A) applicable bankruptcy, insolvency, moratorium, reorganization and other laws of general application limiting the enforcement of creditors’ rights generally and (B) the fact that the courts may deny the granting or enforcement of equitable remedies;
2
SECTION 4. Conditions Precedent to the Effective Date. This Amendment shall become effective upon the date (the “Effective Date”) on which the following conditions have been met:
SECTION 5. Loan Document; Ratification of Credit Agreement; Etc.
3
SECTION 6. Headings. The headings contained herein are for convenience of reference only and do not constitute part of this Amendment.
SECTION 7. Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted pursuant to the Loan Documents.
SECTION 8. Counterparts; Entire Agreement. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which, when executed and delivered, shall be effective for purposes of binding the parties hereto, but all of which when taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or other electronic transmission (i.e., a “pdf” or “tif”), including email, shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” and words of like import shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be. This Amendment constitutes the entire agreement and understanding of the parties hereto relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, of the parties hereto relating to the subject matter hereof.
SECTION 9. Incorporation by Reference. The provisions of Sections 10.07 (Severability), 10.09 (Governing Law; Jurisdiction; etc.) and 10.10 (Waiver of Jury Trial) of the Credit Agreement are hereby incorporated by reference, mutatis mutandis, and shall apply as if fully set forth herein.
[Signature page follows.]
4
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer(s) to execute and deliver this Amendment as of the date first written above.
CORE ALASKA, LLC,
as Borrower
By: ___/s/ Rick Van Nieuwenhuyse__
Name: Rick Van Nieuwenhuyse
Title: President and Chief Executive Officer
CONTANGO ORE, INC.,
as Guarantor
By: ___/s/ Rick Van Nieuwenhuyse__
Name: Rick Van Nieuwenhuyse
Title: President and Chief Executive Officer
ALASKA GOLD TORRENT, LLC,
as Guarantor
By: ___/s/ Rick Van Nieuwenhuyse__
Name: Rick Van Nieuwenhuyse
Title: President and Chief Executive Officer
CONTANGO MINERALS ALASKA, LLC,
as Guarantor
By: ___/s/ Rick Van Nieuwenhuyse__
Name: Rick Van Nieuwenhuyse
Title: President and Chief Executive Officer
ING CAPITAL LLC,
as Administrative Agent By: __/s/ Brian Gorski___
Name: Brian Gorski Title: Director
By: _/s/ Remko van de Water__
Name: Remko van de Water Title: Managing Director