Section 1. (a) The Company hereby acknowledges and agrees that the Senior Secured Glencore Note shall continue in full force and effect, except as otherwise specifically set forth in clause (b) below, and this letter agreement will not constitute any other modification, amendment or waiver to the Senior Secured Glencore Note with respect to any other term or provision of the Warrants or the Company’s obligations thereunder.
(b)The Holder hereby acknowledges and consents to:
(i) the issuance by the Company of the Warrants as an incurrence of Disqualified Capital Stock and the Holder irrevocably waives any Default or Event of Default pursuant to the Limitation on Incurrence of Indebtedness Covenant which may occur as a result of the issuance of the Warrants;
(ii) the participation by the holders of the Warrants in dividends or other distributions declared by the Company to the holders of the Company’s common shares in accordance with Section 3(b) of the Warrants and the Holder hereby irrevocably waives any Default or Event of Default pursuant to Section 3(a) of Annex A-2 of the Glencore Senior Secured Note (the “Restricted Payments Covenant”) with respect to the participation by the holders of the Warrants in any such dividends or distributions. For the avoidance of doubt and without limitation, in no event shall this clause (b)(ii) be construed to constitute a waiver or modification of the Restricted Payments Covenant for any other purpose, including, without limitation, the Company’s ability to declare dividends or distributions to the holders of the Company’s common shares; and
(iii) the payment of cash or non-cash consideration upon the repurchase or exercise of Warrants in connection with a Fundamental Transaction (as defined in the Warrants) in accordance with Section 3(c) of the Warrants and the Holder hereby irrevocably waives any Default or Event of Default pursuant to the Restricted Payments Covenant and Section 3(b) of Annex A-2 of the Glencore Senior Secured Note which may occur as a result of the payment of cash consideration or the repurchase of Warrants upon a Fundamental Transaction, as the case may be, so long as, to the extent any Glencore Notes (as defined below) are outstanding immediately prior to the occurrence of a Fundamental Transaction, the Company shall have complied with its obligations to redeem the Glencore Notes in accordance with their terms in connection with such Fundamental Transaction prior to the Company paying cash or non-cash consideration upon the repurchase or exercise of Warrants in connection with the Fundamental Transaction to the Holder pursuant to Section 3(c) of the Warrants.
Section 2. No later than ten (10) Business Days after the sale of the Warrants, the Company shall amend the Senior Secured Glencore Note, the First A&R Note and the Second A&R Note (in each case as defined in the Senior Secured Glencore Note) and the form of warrants attached thereto (collectively, the “Glencore Notes”), to reflect any terms contained in the Warrants that are more favorable to the holders of the Warrants than those contained in the Glencore Notes to the extent requested by the Holder.
Section 3. The Holder hereby represents to the Company that this letter agreement has been duly authorized, executed and delivered by the Holder and constitutes a valid and binding obligation of the Holder enforceable against the Holder in accordance with its terms.
Section 4. The Company hereby represents to the Holder that this letter agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms.
