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EXHIBIT 10.9
CREDIT AGREEMENT
BETWEEN
THE BANK OF NOVA SCOTIA
AS ADMINISTRATIVE AGENT
AND
THE BANK OF NOVA SCOTIA
AND OTHER FINANCIAL INSTITUTIONS
AS LENDERS
AND
KINROSS GOLD CORPORATION,
KINROSS GOLD U.S.A., INC. AND
FAIRBANKS GOLD MINING, INC.
AS BORROWERS
MARCH 8, 2000
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TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
1.01 Defined Terms....................................................... 2
1.02 Other Usages........................................................ 29
1.03 Plural and Singular................................................. 29
1.04 Headings............................................................ 29
1.05 Currency............................................................ 29
1.06 Applicable Law...................................................... 29
1.07 Time of the Essence................................................. 29
1.08 Non-Banking Days.................................................... 29
1.09 Consents and Approvals.............................................. 30
1.10 Amount of Credit.................................................... 30
1.11 Schedules........................................................... 30
1.12 Extension of Credit................................................. 30
1.13 Joint and Several Obligations....................................... 30
ARTICLE 2
CREDIT FACILITY
2.01 Establishment of Credit Facility.................................... 31
2.02 Credit Restrictions................................................. 31
2.03 Lenders' Commitments................................................ 31
2.04 Reduction of Credit Facility........................................ 31
ARTICLE 3
GENERAL PROVISIONS RELATING TO CREDITS
3.01 Types of Credit Availments.......................................... 32
3.02 Funding of Loans.................................................... 33
3.03 Failure of Lender to Fund Loan...................................... 33
3.04 Funding of Bankers' Acceptances..................................... 34
3.05 BA Rate Loans....................................................... 36
3.06 Timing of Credit Availments......................................... 36
3.07 Inability to Fund U.S. Dollar Advances in Canada.................... 36
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3.08 Time and Place of Payments.......................................... 38
3.09 Remittance of Payments.............................................. 38
3.10 Evidence of Indebtedness............................................ 38
3.11 General Provisions Relating to All Letters.......................... 39
3.12 Notice Periods...................................................... 41
ARTICLE 4
DRAWDOWNS
4.01 Drawdown Notice..................................................... 41
ARTICLE 5
ROLLOVERS
5.01 Bankers' Acceptances................................................ 42
5.02 LIBO Loans.......................................................... 42
5.03 Rollover Notice..................................................... 42
ARTICLE 6
CONVERSIONS
6.01 Converting Loan to Other Type of Loan............................... 43
6.02 Converting Loan to Bankers' Acceptances............................. 43
6.03 Converting Bankers' Acceptances to Loan............................. 43
6.04 Conversion Notice................................................... 44
6.05 Absence of Notice................................................... 44
6.06 Conversion by Lenders............................................... 45
ARTICLE 7
INTEREST AND FEES
7.01 Interest Rates...................................................... 45
7.02 Calculation and Payment of Interest................................. 45
7.03 General Interest Rules.............................................. 46
7.04 Selection of Interest Periods....................................... 47
7.05 Acceptance Fees..................................................... 47
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7.06 Standby Fee......................................................... 48
7.07 Letter Fees......................................................... 48
ARTICLE 8
RESERVE, CAPITAL, INDEMNITY AND TAX PROVISIONS
8.01 Conditions of Credit................................................ 48
8.02 Change of Circumstances............................................. 49
8.03 Failure to Fund as a Result of Change of Circumstances.............. 50
8.04 Indemnity Relating to Credits....................................... 50
8.05 Indemnity for Transactional and Environmental Liability............. 51
8.06 Payments Free and Clear of Taxes.................................... 52
ARTICLE 9
REPAYMENTS AND PREPAYMENTS
9.01 Repayments.......................................................... 53
9.02 Extension of Maturity Date.......................................... 53
9.03 Voluntary Prepayments under Credit Facility......................... 55
9.04 Mandatory Prepayments............................................... 55
9.05 Prepayment Notice................................................... 55
9.06 Reimbursement or Conversion on Presentation of Letters.............. 56
9.07 Letters Subject to an Order......................................... 56
9.08 Currency of Repayment............................................... 56
9.09 Repayments of Credit Excess......................................... 56
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.01 Representations and Warranties...................................... 57
10.02 Survival of Representations and Warranties.......................... 64
ARTICLE 11
COVENANTS
11.01 Affirmative Covenants............................................... 64
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11.03 Performance of Covenants by Administrative Agent.................... 73
ARTICLE 12
CONDITIONS PRECEDENT TO OBTAINING CREDIT
12.01 Conditions Precedent to All Credit.................................. 73
12.02 Conditions Precedent to Initial Drawdown............................ 74
12.03 Waiver.............................................................. 77
12.04 Import of Existing Letters.......................................... 77
ARTICLE 13
DEFAULT AND REMEDIES
13.01 Events of Default................................................... 78
13.02 Refund of Overpayments.............................................. 81
13.03 Remedies Cumulative................................................. 82
13.04 Set-Off............................................................. 82
ARTICLE 14
THE ADMINISTRATIVE AGENT
14.01 Appointment and Authorization of Administrative Agent............... 82
14.02 Interest Holders.................................................... 83
14.03 Consultation with Counsel........................................... 83
14.04 Documents........................................................... 83
14.05 Administrative Agent as Lender...................................... 83
14.06 Responsibility of Administrative Agent.............................. 83
14.07 Action by Administrative Agent...................................... 83
14.08 Notice of Events of Default......................................... 84
14.09 Responsibility Disclaimed........................................... 84
14.10 Indemnification..................................................... 85
14.11 Credit Decision..................................................... 85
14.12 Successor Administrative Agent...................................... 85
14.13 Delegation by Administrative Agent.................................. 86
14.14 Waivers and Amendments.............................................. 86
14.15 Determination by Administrative Agent Conclusive and Binding........ 87
14.16 Adjustments among Lenders after Acceleration........................ 87
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14.17 Redistribution of Payment........................................... 88
14.18 Distribution of Notices............................................. 88
14.19 Determination of Exposures.......................................... 89
14.20 Decision to Enforce Security........................................ 89
14.21 Enforcement......................................................... 89
14.22 Application of Cash Proceeds of Realization......................... 89
14.23 Entering into Contracts............................................. 90
14.24 Other Security Not Permitted........................................ 90
ARTICLE 15
MISCELLANEOUS
15.01 Notices............................................................. 90
15.02 Severability........................................................ 91
15.03 Counterparts........................................................ 91
15.04 Successors and Assigns.............................................. 91
15.05 Assignment.......................................................... 91
15.06 Entire Agreement.................................................... 92
15.07 Further Assurances.................................................. 92
15.08 Judgment Currency................................................... 93
15.09 Notice of Remedies.................................................. 94
Schedule A - Individual Commitments
Schedule B - Compliance Certificate
Schedule C - Form of Assignment
Schedule D - Chief Executive Offices
Schedule E - Form of Drawdown Notice
Schedule F - Form of Rollover Notice
Schedule G - Form of Conversion Notice
Schedule H - Corporate Structure
Schedule I - Reimbursement Agreement
Schedule J - Applicable Rates
Schedule K - Quarterly Hedge Report
Schedule L - Existing Letters
Schedule M - Power of Attorney - Bankers' Acceptances
Schedule N - Tangible Asset Locations
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CREDIT AGREEMENT
THIS AGREEMENT made as of the 8th day of March, 2000.
B E T W E E N:
THE BANK OF NOVA SCOTIA, a Canadian chartered bank
(herein, in its capacity as administrative agent of the Lenders,
called the "Administrative Agent")
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THE BANK OF NOVA SCOTIA and one or more financial institutions
to whom The Bank of Nova Scotia or its permitted assigns may
from time to time assign an undivided interest in the Loan
Documents (as defined herein) and who agree to be bound by the
terms hereof as a Lender (including the Issuing Lender defined
herein)
(herein collectively called the "Lenders" and individually
called a "Lender")
- and -
KINROSS GOLD CORPORATION, a corporation incorporated under the
laws of the Province of Ontario
(herein called "Kinross Canada")
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KINROSS GOLD U.S.A., INC., a corporation incorporated under the
laws of the State of Nevada
(herein called "Kinross U.S.A.")
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FAIRBANKS GOLD MINING, INC. a corporation incorporated under the
laws of the State of Delaware
(herein called "Fairbanks U.S.")
WHEREAS Kinross Canada, Kinross U.S.A. and Fairbanks U.S. (collectively,
the "Borrowers" and, individually, a "Borrower") have requested the Lenders to
establish a certain credit facility to repay in full all amounts outstanding
under the Existing Credit Agreement (other than the Existing Letters and accrued
fees thereon), issue a Letter to replace the UBS Letter and otherwise for
general corporate purposes;
AND WHEREAS the Lenders are willing to provide such credit facility to
the 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
1.01 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:
"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.
"ALTERNATIVE 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.
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"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 7.05, the rate used to calculate
standby fees pursuant to Section 7.06 or the rate used to calculate Letter
issuance fees pursuant to Section 7.07 by reference to the range in which the
Net Indebtedness/Rolling OCF 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 7.08, (ii)
changes in the Applicable Rate shall apply, as at the effective dates of such
changes, to Bankers' Acceptances, BA Rate Loans, LIBO 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, 2000, the Applicable Rate
indicated for Level 4 in Schedule J hereto shall apply. The Applicable Rate for
the Fiscal Quarter commencing October 1, 2000 shall be determined based upon the
Net Indebtedness/Rolling OCF Ratio using the Net Indebtedness as at June 30,
2000 and Rolling OCF for the Fiscal Quarter ending June 30, 2000. The Applicable
Rate for each subsequent Fiscal Quarter shall be determined based upon the Net
Indebtedness/Rolling OCF Ratio using Net Indebtedness and Rolling OCF having a
similar one Fiscal Quarter lag. The Applicable Rate for any outstanding Letter
shall be reduced to 0.50% per annum to the extent, and for so long as, same has
been defeased by way of a deposit to the Sinking Fund Account.
"ATTRIBUTABLE DEBT" means, at any particular time and with respect to all
capital leases under which Kinross Canada, on a consolidated basis taking into
account only the Companies, is at such time liable as lessee, the aggregate
amount which would, in accordance with generally accepted accounting principles,
be considered to be the amount owing thereunder.
"AVAILABLE CREDIT" means, at any particular time, the amount equal to A less B
less C, where
A = the amount of the Credit Facility at such time;
B = the amount by which the aggregate amount of deposits to the Sinking Fund
Account in accordance with Section 11.01(v) up to such time exceeds the
aggregate amount of withdrawals pursuant to the penultimate section of
Section 6 of the Sinking Fund Pledge Agreement up to such time; and
C = the amount of credit outstanding under Credit Facility at such time.
"BA DISCOUNTED PROCEEDS" means, in respect of any Bankers' Acceptances to be
accepted by a 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
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(b) the price, where the price is 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 price 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 7.05.
"BA RATE" means the BA Schedule I Rate or the BA Schedule II Rate, as the case
may be.
"BA RATE LOAN" shall have the meaning ascribed thereto in Section 3.05.
"BA SCHEDULE I RATE" means, 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.
"BA SCHEDULE II RATE" means, with respect to an issue of Bankers' Acceptances
with the same maturity date to be accepted by a Schedule II 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 Reference Lenders determined in accordance with their normal
practices at
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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 Schedule I Rate with respect to an issue
of Bankers' Acceptances with the same maturity date to be accepted by a Schedule
I Lender hereunder plus 0.15% per annum.
"BANKERS' ACCEPTANCE" means a bill of exchange subject to the Bills of Exchange
Act (Canada) or a depository bill subject to the Depository Bills and Notes Act
(Canada) (a) drawn by Kinross Canada and accepted by a Lender, (b) denominated
in Canadian dollars, (c) having a term to maturity of 30 to 182 days, (d) issued
and payable only in Canada and (e) having a face amount of not less than Cdn.
$500,000 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 Toronto, Ontario and Atlanta, Georgia and
when used in respect of LIBO Loans, means any day other than a Saturday or
Sunday on which banks generally are open for business in Toronto, Ontario,
Atlanta, Georgia, New York, New York, and London, England 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 Lenders to Kinross Canada
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 Lenders to Kinross U.S.A. and
upon which interest accrues at a rate referable to the Alternate Base Rate New
York.
"BORROWER DOCUMENTS" means this agreement, the Fee Agreement and the Borrower
Security Documents and "BORROWER DOCUMENT" means any of the Borrower Documents.
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"BORROWER SECURITY DOCUMENTS" means the Kinross Canada Security Documents, the
Kinross U.S.A. Investment Account Pledge Agreement and the Fairbanks U.S.
Security Documents and "BORROWER SECURITY DOCUMENT" means any of the Borrower
Security Documents.
"BRANCHES OF ACCOUNT" means the Canadian Branch of Account and the U.S. Branch
of Account.
"CANADIAN BRANCH OF ACCOUNT" means the Toronto main branch of the Administrative
Agent located at Scotia Plaza, 44 King Street West, Toronto, Ontario, 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.
"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.
"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.
"COMPANIES" means the Borrowers and the Restricted Subsidiaries.
"CONTAMINANT" means any contaminant, as defined by the EPA.
"CONVERSION NOTICE" shall have the meaning ascribed thereto in Section 6.04.
"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 aggregate amount of the Credit Facility as
at the close of business on such date.
"CREDIT FACILITY" means the revolving reducing term credit facility established
by the Lenders in favour of the Borrowers pursuant to Section 2.01.
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"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.
"$" denotes Canadian dollars or U.S. dollars as the context may permit.
"DRAFT" means any draft, bill 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 4.01.
"EBRD" means the European Bank for Reconstruction and Development.
"ENVIRONMENTAL INDEMNITY AGREEMENT" means the indemnity agreement to be entered
into by the Companies in favour of the Administrative Agent and the Lenders, 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.
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"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 13.01.
"EXCHANGE EQUIVALENT" means, (A) for the purposes of Sections 3.07(c) or (d),
6.01, 6.02 and 6.03, 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 February 12,
1999 between The Bank of Nova Scotia, Kinross Canada and Kinross U.S.A., as
amended from time to time.
"EXISTING LETTERS" means the letters of credit set out in Schedule L hereto.
"EXPOSURE" means, with respect to a particular Lender, the amount of the Secured
Obligations (without duplication) which are owing to such Lender, determined in
accordance with Section 14.19.
"FAIRBANKS CANADA" means Fairbanks Gold Ltd.
"FAIRBANKS CANADA GUARANTEE" means the guarantee agreement to be entered into by
Fairbanks Canada in favour of the Administrative Agent, in form and substance
satisfactory to all of the Lenders and as the same may be amended, modified,
supplemented or replaced from time to time, and pursuant to which Fairbanks
Canada shall guarantee the Secured Obligations and the Hedging Obligations to
the extent they relate to Kinross Canada.
"FAIRBANKS CANADA PLEDGE AGREEMENT" means the pledge agreement to be entered
into by Fairbanks Canada in favour of the Administrative Agent, in form and
substance satisfactory to all of the Lenders and as the same may be amended,
modified, supplemented or replaced from time to time, and pursuant to which
Fairbanks Canada shall pledge to the Administrative Agent and grant to the
Administrative Agent a security interest in all of the issued and outstanding
shares of Melba
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Creek as continuing collateral security for the indebtedness, liabilities and
obligations of Fairbanks Canada under the Fairbanks Canada Guarantee to the
extent it relates to the Secured Obligations.
"FAIRBANKS U.S. INVESTMENT ACCOUNT PLEDGE AGREEMENT" means the pledge agreement
to be entered into by Fairbanks U.S. in favour of the Administrative Agent, in
form and substance satisfactory to all of the Lenders and as the same may be
amended, modified, supplemented or replaced from time to time, and pursuant to
which Fairbanks U.S. shall pledge to the Administrative Agent and grant to the
Administrative Agent a security interest in all of the Investment Account
Collateral of Fairbanks U.S. as continuing collateral security for the Secured
Obligations.
FAIRBANKS U.S. PLEDGE AND SECURITY AGREEMENT" means the pledge and security
agreement to be entered into by Fairbanks U.S. in favour of the Administrative
Agent, in form and substance satisfactory to all of the Lenders and as the same
may be amended, modified, supplemented or replaced from time to time, and
pursuant to which Fairbanks U.S. shall grant to the Administrative Agent a
security interest in, and deposit in pledge with the Administrative Agent, the
Pledged Bonds as continuing collateral security for the Secured Obligations.
"FAIRBANKS US. SECURITY DOCUMENTS" means the Fort Knox Deposit Trust Deed, the
True North Deposit Trust Deed, the Fairbanks U.S. Investment Account Pledge
Agreement and the Fairbanks U.S. Pledge and Security Agreement and "FAIRBANKS
U.S. SECURITY DOCUMENT" means any of the Fairbanks U.S. Security Documents.
"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 LETTER" means the fee letter dated November 29, 1999 between The Bank of
Nova Scotia, Kinross Canada and Kinross U.S.A., as the same may be amended,
modified, supplemented or replaced from time to time.
"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.
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"FORT KNOX DEPOSIT"means the real property owned by Fairbanks U.S. or Melba
Creek and described as such in Schedule O hereto, together with all buildings
and structures therein and appurtenances thereto.
"FORT KNOX DEPOSIT TRUST DEED" means the deed of trust to be entered into by
Fairbanks U.S. and Melba Creek in favour of the Administrative Agent, in form
and substance satisfactory to all of the Lenders and as the same may be amended,
modified, supplemented or replaced from time to time, and pursuant to which
Fairbanks U.S. and Melba Creek shall grant to the Administrative Agent a first
fixed and floating charge over all of the assets related to the Fort Knox
Deposit as continuing collateral security, in the case of Fairbanks U.S., for
the Secured Obligations, and, in the case of Melba Creek, for the indebtedness,
liabilities and obligations of Melba Creek under the Melba Creek Guarantee to
the extent it relates to the Secured Obligations.
"FORT KNOX MINE" means the gold mine located in central Alaska, 22 miles south
of Fairbanks and, for certainty, includes the Fort Knox Deposit, True North
Deposit and Ryan Lode 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.
"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.
"GUARANTEES" means the Kinam Canada Guarantee, the Kinam U.S. Guarantee, the
Fairbanks Canada Guarantee, the Melba Creek Guarantee, the Kinam Refugio
Guarantee, the LT Acquisition Guarantee, the Ryan Lode Guarantee, the Teko Inc.
Guarantee and the Teko Ltd. Guarantee.
"GUARANTOR DOCUMENTS" means the Guarantees and the Guarantor Security Documents
"GUARANTOR SECURITY DOCUMENTS" means the Fairbanks Canada Pledge Agreement,
Kinam Refugio Investment Account Pledge Agreement, Kinam U.S. Security
Documents, Teko Inc. Investment Account Pledge Agreement, the Teko Ltd. Pledge
Agreement, the Fort Knox Deposit Trust Deed, the Ryan Lode Deposit Trust Deed
and the True North Deposit Trust Deed.
"HAZARDOUS MATERIALS" means:
(a) any "hazardous substance", as defined by CERCLA;
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(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 AGREEMENTS" means any 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 between any Borrower and any Lender.
"HEDGING OBLIGATIONS" means all present and future indebtedness, liabilities and
obligations of any Borrower to all financial institutions which are Lenders and
so long as they are Lenders under any Hedging Agreement.
"HOYLE POND MINE" means the gold mine located in Hoyle Township in the vicinity
of Timmins, Ontario.
"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, (ii) other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (iii) obligations of such Person
under any lease of property, real or personal, the obligations of the lessee in
respect of which are required in accordance with generally accepted accounting
principles to be capitalized on a balance sheet of the lessee (including,
without limitation, all obligations under any synthetic lease), (iv) contingent
obligations of such Person under any guarantee, letter of credit or guarantee,
surety bond or any other instrument or agreement and (v) to the extent
accelerated, obligations of any Person under any spot or forward foreign
exchange transaction, interest rate swap transaction, currency swap transaction,
forward rate transaction, rate
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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.
"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 2.04, 8.03 and 15.05 as the individual commitment of such
Lender with respect to the Credit Facility, provided that, upon the termination
of the Credit Facility pursuant to Section 2.05, the Individual Commitment of
each Lender with respect to the Credit Facility shall thereafter be equal to the
aggregate amount of outstanding credit extended to the Borrowers by 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 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 taking into account only the
Companies for such period as gross interest expenses.
"INTEREST PERIOD" means, in the case of any LIBO Loan, the applicable period for
which interest on such LIBO Loan shall be calculated pursuant to Article 7.
"INVESTMENT ACCOUNT" means, with respect to a particular Company, any bank
account or investment account now or hereafter maintained by such Company with
the Administrative Agent or any other financial institution and provided that:
(a) such Company 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 indebtedness, liabilities
and obligations of such Company under its Guarantee to the extent
it relates to the Secured Obligations; and
(b) if such account is maintained with a financial institution other
than the Administrative Agent, such Company 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 confirm 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,
information as to the amount on
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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 upon notice from the
Administrative Agent that the security therein is enforceable.
"INVESTMENT ACCOUNT COLLATERAL" means, with respect to a particular Company, all
cash and Permitted Investments on deposit from time to time in all Investment
Accounts of such Company.
"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.
"KINAM CANADA" means Kinam (B.C.) Ltd.
"KINAM CANADA GUARANTEE" means the guarantee agreement to be entered into by
Kinam Canada in favour of the Administrative Agent, in form and substance
satisfactory to all of the Lenders and as the same may be amended, modified,
supplemented or replaced from time to time, and pursuant to which Kinam Canada
shall guarantee the Secured Obligations and the Hedging Obligations to the
extent they relate to Kinross Canada.
"KINAM REFUGIO" means Kinam Refugio Inc.
"KINAM REFUGIO GUARANTEE" means the guarantee agreement to be entered into by
Kinam Refugio in favour of the Administrative Agent, in form and substance
satisfactory to all of the Lenders and as the same may be amended, modified,
supplemented or replaced from time to time, and pursuant to which Kinam Refugio
shall guarantee the Secured Obligations and the Hedging Obligations.
"KINAM REFUGIO INVESTMENT ACCOUNT PLEDGE AGREEMENT" means the pledge agreement
to be entered into by Kinam Refugio in favour of the Administrative Agent, in
form and substance satisfactory to all of the Lenders and as the same may be
amended, modified, supplemented or replaced from time to time, and pursuant to
which Kinam Refugio shall pledge to the Administrative Agent and grants to the
Administrative Agent a security interest in all of the Investment Account
Collateral of Kinam Refugio as continuing collateral security for the
indebtedness, liabilities and
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obligation of Kinam Refugio under the Kinam Refugio Guarantee to the extent it
relates to the Secured Obligations.
"KINAM U.S." means Kinam Gold Inc.
"KINAM U.S. GUARANTEE" means the guarantee agreement to be entered into by Kinam
U.S. in favour of the Administrative Agent, in form and substance satisfactory
to all of the Lenders and as the same may be amended, modified, supplemented or
replaced from time to time, and pursuant to which Kinam U.S. shall guarantee the
Secured Obligations and the Hedging Obligations.
"KINAM U.S. INVESTMENT ACCOUNT PLEDGE AGREEMENT" means the pledge agreement to
be entered into by Kinam U.S. in favour of the Administrative Agent, in form and
substance satisfactory to all of the Lenders and as the same may be amended,
modified, supplemented or replaced from time to time, and pursuant to which
Kinam U.S. shall pledge to the Administrative Agent and grants to the
Administrative Agent a security interest in all of the Investment Account
Collateral of Kinam U.S. as continuing collateral security for the indebtedness,
liabilities and obligation of Kinam U.S. under the Kinam U.S. Guarantee to the
extent it relates to the Secured Obligations.
"KINAM U.S. PLEDGE AGREEMENT" means the pledge agreement to be entered into by
Kinam U.S. in favour of the Administrative Agent, in form and substance
satisfactory to all of the Lenders and as the same may be amended, modified,
supplemented or replaced from time to time, and pursuant to which Kinam U.S.
shall pledge to the Administrative Agent and grant to the Administrative Agent a
security interest in all of the issued and outstanding shares of Fairbanks U.S.
as continuing collateral security for the indebtedness, liabilities and
obligations of Kinam U.S. under the Kinam U.S. Guarantee to the extent it
relates to the Secured Obligations.
"KINAM U.S. SECURITY DOCUMENTS" means the Kinam U.S. Investment Account Pledge
Agreement and the Kinam U.S. Pledge Agreement and "KINAM U.S. SECURITY DOCUMENT"
means either of the Kinam U.S. Security Documents.
"KINROSS CANADA INVESTMENT ACCOUNT PLEDGE AGREEMENT" means the pledge agreement
to be entered into by Kinross Canada in favour of the Administrative Agent, in
form and substance satisfactory to all of the Lenders and as the same may be
amended, modified, supplemented or replaced from time to time, and pursuant to
which Kinross Canada shall pledge to the Administrative Agent and grant to the
Administrative Agent a security interest in all monies and permitted investments
in its Investment Account as continuing collateral security for the Secured
Obligations.
"KINROSS CANADA SECURITY DOCUMENTS" means the Kinross Canada Investment Account
Pledge Agreement and the Sinking Fund Pledge Agreement and "KINROSS CANADA
SECURITY DOCUMENT" means either of the Kinross Canada Security Documents.
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"KINROSS U.S.A. INVESTMENT ACCOUNT PLEDGE AGREEMENT" means the pledge agreement
to be entered into by Kinross U.S.A. in favour of the Administrative Agent, in
form and substance satisfactory to all of the Lenders and as the same may be
amended, modified, supplemented or replaced from time to time, and pursuant to
which Kinross U.S.A. shall pledge to the Administrative Agent and grant to the
Administrative Agent a security interest in all monies and permitted investments
in its Investment Account as continuing collateral security for the Secured
Obligations.
"LETTERS" means:
(x) standby letters of credit or letters of guarantee issued by the
Issuing Lender (i) at the request, and on the credit, of Kinross
Canada and (ii) on behalf of Kinross Canada and, if applicable, a
Subsidiary, 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
(y) standby letters of credit issued by the Issuing Lender (i) at the
request, and on the credit, of either U.S. Borrower and (ii) on
behalf of such U.S. Borrower and, if applicable, a Subsidiary,
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.
With respect to any Letter to be issued hereunder at the request, and on behalf
of, Fairbanks U.S. to replace the UBS Letter, the Issuing Lender confirms (x)
the current beneficiary of the UBS Letter is acceptable to the Issuing Lender
and (y) the Issuing Lender shall renew any such replacement Letter provided no
Default or Event of Default has occurred and is outstanding at the time of any
such renewal.
"LIBO LOAN" means monies lent by the Lenders to Kinross Canada in United States
dollars and upon which interest accrues at a rate referable to LIBOR or monies
lent by the Lenders to Kinross U.S.A. 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.
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"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 LIBO 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).
"LOAN DOCUMENTS" means the Borrower Documents and Guarantor Documents and all
certificates, notices and other documents delivered or to be delivered to the
Administrative Agent in relation to the Credit Facility pursuant hereto or
thereto.
"LOANS" means Prime Rate Loans, BA Rate Loans, Base Rate Canada Loans, Base Rate
New York Loans and LIBO Loans.
"LT ACQUISITION"means LT Acquisition Inc.
"LT ACQUISITION GUARANTEE" means the guarantee agreement to be entered into by
LT Acquisition in favour of the Administrative Agent, in form and substance
satisfactory to all of the Lenders and
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as the same may be amended, modified, supplemented or replaced from time to
time, and pursuant to which LT Acquisition shall guarantee the Secured
Obligations and the Hedging Obligations.
"MACASSA MINE" means the gold mine located in Teck Township on the outskirts of
the town of Kirkland Lake, in northeastern Ontario.
"MAJORITY LENDERS" means, at any particular time, such group of Lenders whose
Individual Commitments aggregate at least two-thirds of the aggregate of the
Individual Commitments of all the Lenders at such time.
"MATERIAL ADVERSE CHANGE" means any change of circumstances or event which would
or does 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 ability of any Company
to perform its material obligations under any Loan Document or on the ability of
the Lenders to enforce any of such obligations.
"MATURITY DATE" means December 31, 2002, as the same may be extended from time
to time pursuant to Section 9.02.
"MELBA CREEK" means Melba Creek Mining, Inc.
"MELBA CREEK GUARANTEE" means the guarantee agreement to be entered into by
Melba Creek in favour of the Administrative Agent, in form and substance
satisfactory to all of the Lenders and as the same may be amended, modified,
supplemented or replaced from time to time, and pursuant to which Melba Creek
shall guarantee the Secured Obligations and the Hedging Obligations.
"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 (taking into account only the
Companies) for such period as the net income of Kinross Canada excluding any
extraordinary items; provided, however, that for the purposes of Section
11.01(o), Net Income shall be calculated for Kinross Canada on a consolidated
basis without the restriction of taking into account only the Companies.
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"NET INDEBTEDNESS" means, at any particular time, Total Indebtedness at such
time less (x) Non-Recourse Indebtedness at such time and (y) the aggregate cash
balances of the Companies at such time which are not subject to a Lien other
than a Lien in favour of the Administrative Agent, and which are on deposit in
an Investment Account.
"NET INDEBTEDNESS/RESERVES RATIO" means, at any particular time, the ratio of
(i) Net Indebtedness at such time to (ii) the Reserves at such time.
"NET INDEBTEDNESS/ROLLING OCF RATIO" means, as at the last day of any Fiscal
Quarter, the ratio of (i) Net Indebtedness at such date to (ii) Rolling OCF for
such Fiscal Quarter.
"NON-RECOURSE INDEBTEDNESS" means Indebtedness of any subsidiary, direct or
indirect, of any Borrower (other than the Restricted 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 any
Borrower that has any Non-Recourse Indebtedness.
"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 (taking into account only the Companies); and
(c) consolidated depreciation and amortization expenses and other
non-cash expenses of Kinross Canada for such Fiscal Quarter
(taking into account only the Companies).
The calculation of OCF shall be adjusted for non-cash revenues and expenses of
the Companies including, without limitation, deferred revenue and the difference
between accrued and cash reclamation costs. The calculation of OCF shall also be
reduced by an amount equal to the aggregate cash reclamation costs for
properties owned by any subsidiary of Kinross Canada which is neither a
Restricted Subsidiary nor a Non-Recourse Subsidiary.
"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
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instrumentality thereof, or any court, tribunal, grand jury, mediator,
arbitrator or referee, whether foreign or domestic.
"OMOLON" means Omolon Gold Mining Company.
"OMOLON SUBORDINATED DEBT FACILITY" means the loan made by ABN AMRO Bank
(Moscow) Ltd. to Omolon pursuant to the loan agreement dated November 29, 1996,
etween Omolon and ABN AMRO Bank (Moscow) Ltd., as amended.
"OMOLON WORKING CAPITAL FACILITY" means the working capital facility established
in favour of Omolon by ABN AMRO Bank A.O. pursuant to an agreement dated March
4, 1999, as the same may be amended, modified, supplemented or replaced from
time to time in accordance with Section 11.02(h).
"OPIC" means the Overseas Private Investment Corporation.
"OPIC/EBRD OMOLON INDEBTEDNESS" means all indebtedness owed by Omolon to either
OPIC or EBRD including, without limitation, under or in connection with the
following:
(i) the loan agreement dated as of June 30, 1995 between Omolon and
EBRD, as amended; and
(ii) the finance agreement dated as of June 30, 1995 between Omolon
and OPIC, as amended.
"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 INVESTMENTS" means 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 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
26
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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;
27
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(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 to secure the payment of the purchase price or the
repayment of monies borrowed to pay the purchase price of any
equipment hereafter or previously acquired by any Company;
(l) Liens on minerals or the proceeds of sale of such minerals
arising or granted pursuant to a processing arrangement, 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 and
provided further that the aggregate amount of such obligations do
not exceed $500,000 at any time;
(m) any other Lien satisfaction of which has been provided for by
deposit in escrow of cash or a surety bond in an amount
sufficient to pay the liability in respect of such Lien in full
and provided further that the aggregate amount of such
obligations do not exceed $500,000 at any time.
(n) Liens to secure non-recourse project indebtedness for borrowed
money of any Company provided that the assets thereby encumbered
are not related to mines that have commenced operation as at the
date hereof;
(o) capital leases, provided that the Attributable Debt in connection
therewith does not at any time exceed U.S. $40,000,000;
(p) Lien granted by Kinross Canada in favour of ABN Amro Bank Canada
pursuant to a pledge and security agreement dated as of December
10, 1998 by Kinross Canada in favour of ABN Amro Bank Canada;
(q) Liens set out in the title opinions referred to in Section
12.02(d)(ix) to the extent approved in writing by the
Administrative Agent; and
28
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(r) 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.
"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 BONDS" shall have the meaning ascribed thereto in the Fairbanks U.S.
Pledge and Security Agreement.
"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 the
Borrowers (other than the Companies) in favour of the Administrative Agent
pursuant to Section 11.01(t), in form and substance satisfactory to all of the
Lenders and as the same may be amended, modified, supplemented or replaced from
time to time.
"PREPAYMENT NOTICE" shall have the meaning ascribed thereto in Section 9.05.
"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
Schedule I Rate 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 Lenders to Kinross Canada 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 13.01
declaring all indebtedness of the Borrowers hereunder to be immediately due and
payable, (ii) upon any dissolution, liquidation, winding-up, reorganization,
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bankruptcy, insolvency or receivership of any of the Companies (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 or 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 Fiscal Quarter, the
aggregate projected production, expressed in ounces of gold, from the mines
owned by the Companies for the next 18 months, such aggregate projected
production (x) to be based upon the most recent budget of Kinross Canada
delivered to the Administrative Agent pursuant to Section 11.01(a)(v), such
budget to be in substantially the form previously provided by Kinross Canada to
the Administrative Agent and (y) to be based on assumptions acceptable to the
Majority Lenders, acting reasonably.
"PROJECTED REALIZED PRICE" means, as at the last day of any Fiscal Quarter 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 spot price per ounce of gold; and
(y) hedged Projected Production is calculated at the hedged price per
ounce of gold, each of which type of hedge agreement and the
counterparty thereto shall be on terms acceptable to the
Administrative Agent.
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 with respect to a particular
Lender, the ratio of the Individual Commitment of such Lender at such time to
the aggregate of the Individual Commitments of all of the Lenders at such time.
"QR MINE" means the gold mine located 70 kilometres southeast of Quesnel,
British Columbia.
"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.
"REDUCTION AMOUNT" means, for any Reduction Date, the amount equal to A less the
aggregate of B plus C plus D, where
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A = the Scheduled Reduction Amount that corresponds to such Reduction Date;
B = any amounts deposited into the Sinking Fund Account on such Reduction Date
in accordance with the first sentence of Section 11.01(v);
C = any amount deposited into the Sinking Fund Account after the immediately
preceding Reduction Date up to and including the particular Reduction Date
pursuant to the second sentence of Section 11.01(v) (the "Relevant Period");
and
D = the aggregate amount of any mandatory prepayments under the Credit
Facility made pursuant to Section 9.04 during the Relevant Period.
If, on any Reduction Date, the aggregate of B plus C plus D exceeds the amount
of the relevant Scheduled Reduction Amount, the amount of the next Scheduled
Reduction Amount shall be reduced by an amount equal to such excess and any
remaining excess thereafter shall be applied as a reduction to the amount of the
Credit Facility due on the Maturity Date and the remaining Scheduled Reduction
Amounts, in inverse order of maturity.
"REDUCTION DATES" means each of June 30, 2000, December 31, 2000, June 30, 2001,
December 31, 2001 and June 30, 2002 and "REDUCTION DATE" means any of the
Reduction Dates.
"REFUGIO MINE" means the gold mine located in the Maricunga mining district in
central Chile, 120 kilometres east of Iopiapo.
"RELEASE" means a "release", as such term is defined in CERCLA.
"RESERVES" means, at any particular time, the aggregate of (x) the aggregate
proven and probable recoverable reserves of gold and silver of the Companies
expressed in Gold Equivalent and (y) 50% of the possible recoverable reserves of
gold and silver of Kinross Canada at the Hoyle Pond Mine, expressed in Gold
Equivalent (provided such 50% never totals more than 15% of the Reserves), in
each case 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 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.
"RESTRICTED SUBSIDIARIES" means Kinam U.S., Kinam Canada, Fairbanks Canada,
Melba Creek, LT Acquisition, Teko Inc., Teko Ltd. and Kinam Refugio, being all
of the subsidiaries, direct or
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indirect, of any Borrower that holds a direct or indirect interest in (x) any
existing North American mine which is currently in production or (y) the Refugio
Mine.
"ROLLING OCF" means, for any particular Fiscal Quarter, OCF for such Fiscal
Quarter and for the three immediately preceding Fiscal Quarters.
"RYAN LODE DEPOSIT" means the real property owned by Teko Inc. and described as
such in Schedule P hereto, together with all buildings and structures thereon
and appurtenances thereto.
"RYAN LODE DEPOSIT TRUST DEED" means the deed of trust to be entered into by
Teko Inc. in favour of the Administrative Agent, in form and substance
satisfactory to all of the Lenders and as the same may be amended, modified,
supplemented or replaced from time to time, and pursuant to which Teko Inc.
shall grant to the Administrative Agent a first fixed and floating charge over
all of the assets related to the Ryan Lode Deposit as continuing collateral
security for the indebtedness, liabilities and obligations of Teko Inc. under
the Teko Inc. Guarantee to the extent it relates to the Secured Obligations.
"ROLLOVER NOTICE" shall have the meaning ascribed thereto in Section 5.03.
"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 not Schedule I Lenders.
"SCHEDULE I REFERENCE LENDERS" means the Administrative Agent prior to the
Syndication Date and thereafter 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 the Borrowers acting reasonably.
"SCHEDULE II REFERENCE LENDERS" means a reference group of up to three Schedule
II Lenders, the composition of which shall be acceptable to the Administrative
Agent and the Borrowers acting reasonably.
"SCHEDULED REDUCTION AMOUNT" means, with respect to a particular Reduction Date,
the amount opposite such Reduction Date as set forth below:
REDUCTION DATE SCHEDULED REDUCTION AMOUNT
-------------- --------------------------
June 30, 2000 $10,000,000
December 31, 2000 $10,000,000
June 30, 2001 $10,000,000
December 31, 2001 $10,000,000
June 30, 2002 $15,000,000
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provided, however, that the Scheduled Reduction Amounts shall be subject to
adjustment as provided in the definition of "Reduction Amount".
"SECURED ASSETS" means the property and assets of the Companies in which the
Administrative Agent has been granted a Lien pursuant to the Security Documents.
"SECURED OBLIGATIONS" means all present and future indebtedness, liabilities and
obligations of any Borrower:
(a) to the Administrative Agent and the Lenders or any of them under
this agreement or any other Loan Document; and
(b) to the Lenders in respect of cash management arrangements now or
hereafter entered into.
"SECURITY" means the collateral security constituted by the Security Documents.
"SECURITY DOCUMENTS" means the Borrower Security Documents and the Guarantor
Security Documents and "SECURITY DOCUMENT" means any of the Security Documents.
"SINKING FUND ACCOUNT" means the special purpose account established by Kinross
Canada with the Administrative Agent at the applicable Branch of Account and
into which Kinross Canada shall deposit monies pursuant to Section 11.01(v).
"SINKING FUND PLEDGE AGREEMENT" means the cash collateral pledge agreement to be
entered into by Kinross Canada in favour of the Administrative Agent, in form
and substance satisfactory to all of the Lenders and as the same may be amended,
modified, supplemented or replaced from time to time, and pursuant to which
Kinross Canada shall pledge to the Administrative Agent and grant to the
Administrative Agent a security interest in the Sinking Fund Account as
continuing collateral security for the Secured Obligations.
"SUBSIDIARY" shall have the meaning ascribed thereto in the Business
Corporations Act (Ontario).
"SYNDICATION DATE" means the date specified in a written notice from the
Administrative Agent to the Borrowers as the date of the completion of the
initial syndication by The Bank of Nova Scotia as Lender of the Credit Facility.
"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
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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. $88,300,000; and
(ii) the Cdn. $200,000,000 December, 1996 subordinated convertible
debentures of Kinross Canada;
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.
"TEKO INC." means La Teko Resources Inc.
"TEKO INC. GUARANTEE" means the guarantee agreement to be entered into by Teko
Inc. in favour of the Administrative Agent, in form and substance satisfactory
to all of the Lenders and as the same may be amended, modified, supplemented or
replaced from time to time, and pursuant to which Teko Inc. shall guarantee the
Secured Obligations and the Hedging Obligations.
"TEKO INC. INVESTMENT ACCOUNT PLEDGE AGREEMENT" means the pledge agreement to be
entered into by Teko Inc. in favour of the Administrative Agent, in form and
substance satisfactory to all of the Lenders and as the same may be amended,
modified, supplemented or replaced from time to time, and pursuant to which Teko
Inc. shall pledge to the Administrative Agent and grant to the Administrative
Agent a security interest in all of the Investment Account Collateral of Teko
Inc. as continuing collateral security for the indebtedness, liabilities and
obligation of Teko Inc. under the Teko Inc. Guarantee to the extent it relates
to the Secured Obligations.
"TEKO LTD." means La Teko Resources Ltd.
"TEKO LTD. GUARANTEE" means the guarantee agreement to be entered into by Teko
Ltd. in favour of the Administrative Agent, in form and substance satisfactory
to all of the Lenders and as the same may be amended, modified, supplemented or
replaced from time to time, and pursuant to which Teko Ltd. shall guarantee the
Secured Obligations and the Hedging Obligations.
"TEKO LTD. PLEDGE AGREEMENT" means the pledge agreement to be entered into by
Teko Ltd. in favour of the Administrative Agent, in form and substance
satisfactory to all of the Lenders and as the same may be amended, modified,
supplemented or replaced from time to time and pursuant to which Teko Ltd. shall
pledge to the Administrative Agent and grant to the Administrative Agent a
security interest in all of the issued and outstanding shares of Teko Inc. as
continuing collateral
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security for the indebtedness, liabilities and obligations of Teko Ltd. under
the Teko Ltd. Guarantee to the extent it relates to the Secured Obligations.
"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.
"TRUE NORTH DEPOSIT" means the real property owned by Fairbanks U.S. or Teko
Inc. described in Schedule Q hereto, together with all buildings and structures
thereon and appurtenances thereto.
"TRUE NORTH DEPOSIT TRUST DEED" means the deed of trust to be entered into by
Fairbanks U.S. and Teko Inc. in favour of the Administrative Agent, in form and
substance satisfactory to all of the Lenders and as the same may be amended,
modified, supplemented or replaced from time to time, and pursuant to which
Fairbanks U.S. and Teko Inc. shall grant to the Administrative Agent a first
fixed and floating charge over all of the assets related to the True North
Deposit as continuing collateral security, in the case of Fairbanks U.S., for
the Secured Obligations and, in the case of Teko Inc., for the indebtedness,
obligations and limitations of Teko Inc. under the Teko Inc. Guarantee to the
extent it relates to the Secured Obligations.
"UBS LETTER" means irrevocable letter of credit No. SBY504662 issued on May 22,
1997 on behalf of Fairbanks U.S. by Union Bank of Switzerland in favour of The
First National Bank of Chicago.
"UCC" means the Uniform Commercial Code of the United States, as amended.
"U.S." and "UNITED STATES" means the United States of America.
"U.S. BORROWERS" means Kinross U.S.A. and Fairbanks U.S. and "U.S. BORROWER"
means either of the U.S. Borrowers.
"U.S. BRANCH OF ACCOUNT" means the Atlanta Agency of the Administrative Agent
located at 600 Peachtree Street, N.E., Suite 2700, Atlanta, Georgia 30308, or
such other office of the Administrative Agent located in the United States as
the U.S. Borrowers and the Administrative Agent may agree upon.
"UNDEVELOPED PORTION OF THE FORT KNOX MINE" means that portion of the Fort Knox
Mine to which no proven and probable recoverable reserves of gold and silver
have been attributed by the Companies.
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"U.S. DOLLAR EQUIVALENT" means the relevant Exchange Equivalent in United States
dollars of any amount of Canadian dollars.
"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.
1.02 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.
1.03 PLURAL AND SINGULAR. Where the context so requires, words importing the
singular number shall include the plural and vice versa.
1.04 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.
1.05 CURRENCY. Unless otherwise specified herein, all statements of or
references to dollar amounts in this agreement shall mean lawful money of the
United States.
1.06 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 15.01, 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.
1.07 TIME OF THE ESSENCE. Time shall in all respects be of the essence of this
agreement.
1.08 NON-BANKING DAYS. Subject to Section 7.04(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
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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.
1.09 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, the U.S. Dollar Equivalent of
the principal amount thereof;
(b) in the case of a LIBO 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 Bank 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.
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ARTICLE 2
CREDIT FACILITY
2.01 ESTABLISHMENT OF CREDIT FACILITY. Subject to the terms and conditions
hereof, the Lenders hereby establish in favour of the Borrowers a revolving term
credit facility (the "Credit Facility") in the amount of U.S. $110,000,000 or
the Canadian Dollar Equivalent thereof, reducing on each Reduction Date by the
applicable Reduction Amount.
2.02 CREDIT RESTRICTIONS. Subject to the terms and conditions hereof, the
aggregate amount of credit outstanding under the Credit Facility shall not at
any time exceed the amount of the Credit Facility. Notwithstanding any other
provision hereof, Kinross Canada shall be entitled to obtain credit by way of BA
Rate Loans or Bankers' Acceptances only in an aggregate amount for any drawdown,
rollover or conversion in an amount greater than or equal to Cdn. $2,000,000.
2.03 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 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.
2.04 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 9.01. Any mandatory prepayment under the Credit
Facility pursuant to Section 9.04 shall cause a permanent reduction in the
amount of the Credit Facility, such reduction in each case to be in an amount
equal to the amount of the prepayment and to be at the time of the prepayment.
The amount of the Credit Facility shall also reduce at the time, and in the
amount, of each payment to Kinross Canada pursuant to the penultimate sentence
of Section 6 of the Sinking Fund Pledge Agreement. The Credit Facility shall
also be permanently reduced in accordance with
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the provisions of Section 2.01. 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 Pro Rata Share of the amount of such reduction of
the Credit Facility.
2.05 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 13.01;
(ii) the date on which the Credit Facility has been
permanently reduced to zero pursuant to Section 2.04;
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
3.01 TYPES OF CREDIT AVAILMENTS. Subject to the terms and conditions hereof, the
Borrowers may obtain credit under the Credit Facility as follows:
(a) Kinross Canada may obtain credit under the Credit Facility by way
of one or more Prime Rate Loans, Base Rate Canada Loans, LIBO
Loans, Bankers' Acceptances and Letters;
(b) Kinross U.S.A. may obtain credit under the Credit Facility by way
of one or more Base Rate New York Loans, LIBO Loans and U.S.
dollar denominated Letters; and
(c) Fairbanks U.S. may obtain credit under the Credit Facility by way
of one or more U.S. dollar denominated Letters.
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3.02 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.
3.03 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 3.02, the
Administrative Agent shall forthwith give notice of such failure by the
Defaulting Lender to the relevant Borrower and the other Lenders and such notice
shall state that any 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 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
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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. The failure of any Lender to make available to the
Administrative Agent its Pro Rata Share of any Loan as required herein shall not
relieve any other Lender of its obligations to make available to the
Administrative Agent its Pro Rata Share of any Loan as required herein.
3.04 FUNDING OF BANKERS' ACCEPTANCES.
(a) If the Administrative Agent receives 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
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 Lender's Pro
Rata Share of such extension of credit. The Administrative Agent shall also at
such time notify Kinross Canada of each Lender's Pro Rata Share of such
extension of credit. Each 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 Kinross Canada which are presented to it for acceptance and which have
an aggregate face amount equal to such 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 Lender shall purchase the
Bankers' Acceptances which it has accepted for a purchase price equal to the BA
Discounted Proceeds therefor. Each 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) Kinross Canada shall provide for payment to the accepting 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. Kinross Canada hereby waives presentment for payment of
Bankers' Acceptances by the Lenders and any defence to payment of amounts due to
a Lender in respect of a Bankers' Acceptance which might exist by reason of such
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Bankers' Acceptance being held at maturity by such Lender which accepted it and
agrees not to claim from such 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 Lender
shall, forthwith after the acceptance of drafts of Kinross Canada 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 Kinross Canada of the terms and conditions set forth in Article
12, make such BA Proceeds available to Kinross Canada 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 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 Kinross
Canada as aforesaid, Kinross Canada shall pay to the Administrative Agent on
behalf of the Lenders an amount equal to the aggregate amount of the acceptance
fees in respect of such Bankers' Acceptances calculated in accordance with
Section 7.05 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 Kinross Canada, be
executed in advance by or on behalf of Kinross Canada, by mechanically
reproduced or facsimile signatures of any two officers of Kinross Canada who are
properly so designated and authorized by Kinross Canada from time to time. Any
Bankers' Acceptance so executed and delivered by Kinross Canada to the Lenders
shall be valid and shall bind Kinross Canada and may be dealt with by the
Lenders to all intents and purposes as if the Bankers' Acceptance had been
signed in the executing officers' own handwriting.
(e) Kinross Canada shall notify the Lenders as to those officers whose
signatures may be reproduced and used to execute Bankers' Acceptances in the
manner provided in Section 3.04(d). Bankers' Acceptances with the mechanically
reproduced or facsimile signatures of designated officers may be used by the
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) Kinross Canada hereby indemnifies and agrees to hold harmless the
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 Kinross
Canada 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
Lenders.
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(g) Each Lender agrees that, in respect of the safekeeping of executed
drafts of Kinross Canada 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 Lender
shall, at the option of such 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) At the request of a particular Lender, Kinross Canada shall promptly
execute and deliver to such Lender a power of attorney in favour of such
Canadian Lender in the form of Schedule M hereto.
3.05 BA RATE LOANS. If, in the sole judgement of a Lender, such Lender is unable
to extend credit by way of Bankers' Acceptances in accordance with this
agreement, such Lender shall give an irrevocable notice to such effect to the
Administrative Agent and Kinross Canada prior to 10:00 a.m. (Toronto time) on
the date of the requested credit extension and shall make available to Kinross
Canada 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 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 3.02 and 3.03. 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 Lender to obtain the same effective rate as if such 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 Kinross Canada 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 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 Lender shall, at the option of such 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).
3.06 TIMING OF CREDIT AVAILMENTS. No Bankers' Acceptance, BA Rate Loan or LIBO
Loan under the Credit Facility may have a maturity date later than the Maturity
Date.
3.07 INABILITY TO FUND U.S. DOLLAR ADVANCES IN CANADA. If a Lender determines in
good faith, which determination shall be final, conclusive and binding on
Kinross Canada, and the Administrative Agent notifies Kinross Canada that (i) by
reason of circumstances affecting financial markets inside or outside Canada,
deposits of United States dollars are unavailable to such Lender in Canada, (ii)
adequate and fair means do not exist for ascertaining the applicable interest
rate on
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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 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 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 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 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 Kinross Canada to obtain any affected Base Rate
Canada Loan or LIBO Loan from such Lender shall be suspended
until such Lender determines that the circumstances causing such
suspension no longer exist and such Lender so notifies Kinross
Canada;
(b) if any affected Base Rate Canada Loan or LIBO Loan is not yet
outstanding, any applicable Drawdown Notice shall be cancelled
and the advance requested therein shall not be made;
(c) if any LIBO Loan is already outstanding at any time when the
right of Kinross Canada to obtain credit by way of a LIBO Loan is
suspended, it shall, subject to Kinross Canada 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 LIBO Loan
or, if Kinross Canada does not have the right to obtain credit by
way of a Base Rate Canada Loan at such time, such LIBO 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 LIBO Loan; and
(d) if any Base Rate Canada Loan is already outstanding at any time
when the right of Kinross Canada to obtain credit by way of a
Base Rate Canada Loan is suspended,
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it shall, subject to Kinross Canada having the right to obtain
credit by way of a LIBO Loan at such time, be immediately
converted to a LIBO 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 Kinross Canada does not have
the right to obtain credit by way of a LIBO 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.
3.08 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.
3.09 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 3.08, the Administrative Agent shall, subject to Sections 3.03 and
8.03 remit to each 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 3.02, 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 Lender its Pro Rata Share of such payment and the
relevant Borrower fails to make such payment, each 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 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 Lenders pursuant hereto to be as set
forth in a certificate delivered by the Administrative Agent to each Lender,
which certificate shall constitute prima facie evidence of such amount of
repayment.
3.10 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
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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.
3.11 GENERAL PROVISIONS RELATING TO ALL LETTERS.
(a) Each 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 Borrower unconditionally
assumes all risks with respect to the same. Each 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 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;
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(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;
(viii) any reduction or withdrawal of the Issuing Lender's credit rating
by any rating agency; or
(ix) any other circumstance, happening or omission, whether or not
similar to any of the foregoing.
The obligations of each 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 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 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
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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.
3.12 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, LIBO 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.
ARTICLE 4
DRAWDOWNS
4.01 DRAWDOWN NOTICE. Subject to Section 3.07 and provided that all of the
applicable conditions precedent set forth in Article 12 have been fulfilled by
the Borrowers or waived by the Majority Lenders, 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 3.12 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, LIBO 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 LIBO 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
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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 3.02.
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
5.01 BANKERS' ACCEPTANCES. Provided that Kinross Canada has, by giving notice to
the Administrative Agent in accordance with Section 5.03, requested the Lenders
to accept its drafts to replace all or a portion of outstanding Bankers'
Acceptances as they mature, each Lender shall, on the maturity of such Bankers'
Acceptances and concurrent with the payment by Kinross Canada to such Lender of
the face amount of such Bankers' Acceptances or the portion thereof to be
replaced, accept Kinross Canada'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 3.04.
5.02 LIBO LOANS. Subject to Section 3.07 and provided that the applicable
Borrower has, by giving notice to the Administrative Agent in accordance with
Section 5.03, requested the Lenders to continue to extend credit by way of a
LIBO Loan to replace all or a portion of an outstanding LIBO Loan as it matures,
each Lender shall, on the maturity of such LIBO Loan, continue to extend credit
to such Borrower by way of a LIBO 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 LIBO Loan or the portion thereof to be
replaced.
5.03 ROLLOVER NOTICE. The notice to be given to the Administrative Agent
pursuant to Section 5.01 or 5.02 ("Rollover Notice") shall be irrevocable, shall
be given in accordance with Section 3.12, shall be in substantially the form of
Schedule F hereto and shall specify:
(a) the applicable Borrower;
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(b) the maturity date of the maturing Bankers' Acceptances or the
maturing LIBO Loan, as the case may be;
(c) the face amount of the maturing Bankers' Acceptances or the
principal amount of the maturing LIBO Loan, as the case may be,
and the portion thereof to be replaced;
(d) in the case of a maturing LIBO Loan, the Interest Period or
Interest Periods of the replacement LIBO 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
6.01 CONVERTING LOAN TO OTHER TYPE OF LOAN. Subject to Section 3.07 and provided
that the applicable Borrower has, by giving notice to the Administrative Agent
in accordance with Section 6.04, requested the 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 Lender shall, on the date of conversion
(which, in the case of the conversion of all or a portion of an outstanding LIBO
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.
6.02 CONVERTING LOAN TO BANKERS' ACCEPTANCES. Provided that Kinross Canada has,
by giving notice to the Administrative Agent in accordance with Section 6.04,
requested the Lenders to accept its drafts to replace all or a portion of an
outstanding Loan and, if a LIBO Loan or a BA Rate Loan is to be replaced the
date of conversion is the date on which such Loan matures, each Lender shall, on
the date of conversion and concurrent with the payment by Kinross Canada to each
Lender of the principal amount of such outstanding Loan or the portion thereof
which is being converted, accept Kinross Canada'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 3.04.
6.03 CONVERTING BANKERS' ACCEPTANCES TO LOAN. Each Lender shall, on the maturity
date of a Bankers' Acceptance which such Lender has accepted, pay to the holder
thereof the face amount
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of such Bankers' Acceptance. Subject to Section 3.07 and provided that Kinross
Canada has, by giving notice to the Administrative Agent in accordance with
Section 6.04, requested the Lenders to convert all or a portion of outstanding
maturing Bankers' Acceptances into a Loan, each Lender shall, upon the maturity
date of such Bankers' Acceptances and the payment by such Lender to the holders
of such Bankers' Acceptances of the aggregate face amount thereof and concurrent
with the payment by Kinross Canada to such Lender of the aggregate face amount
of such Bankers' Acceptances, extend credit to Kinross Canada 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 Lender has funded Kinross Canada by way
of a BA Rate Loan rather than by way of Bankers' Acceptances, the provisions of
this Section 6.03 as they relate to Bankers' Acceptances shall apply mutatis
mutandis to such BA Rate Loan.
6.04 CONVERSION NOTICE. The notice to be given to the Administrative Agent
pursuant to Section 6.01, 6.02 or 6.03 ("Conversion Notice") shall be
irrevocable, shall be given in accordance with Section 3.12, 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 LIBO 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.
6.05 ABSENCE OF NOTICE. Subject to Section 3.07, in the absence of a Rollover
Notice or Conversion Notice within the appropriate time periods referred to
herein, a maturing LIBO Loan in
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favour of Kinross Canada shall be automatically converted to a Base Rate Canada
Loan, a maturing LIBO Loan in favour of Kinross U.S.A. 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 6.04.
6.06 CONVERSION BY LENDERS. Upon written notice to such effect to the applicable
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 LIBO Loan, convert such Bankers' Acceptance or BA Rate Loan into a
Prime Rate Loan, convert such LIBO Loan in favour of Kinross Canada into a Base
Rate Canada Loan and convert such LIBO Loan in favour of Kinross U.S.A. into a
Base Rate New York Loan as though a notice to such effect had been given in
accordance with Section 6.04.
ARTICLE 7
INTEREST AND FEES
7.01 INTEREST RATES. The Borrowers shall pay to the Lenders, in accordance with
Section 3.08, 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 LIBO Loan in favour of Kinross Canada, LIBOR
plus the Applicable Rate; and
(e) in the case of each LIBO Loan in favour of Kinross U.S.A., LIBOR
(Reserve Adjusted) plus the Applicable Rate.
7.02 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
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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 LIBO 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 LIBO 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 LIBO Loans are
otherwise required to be repaid.
7.03 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 Lenders
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
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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 2% in the case of
overdue amounts denominated in U.S. dollars; and
(ii) the Prime Rate plus 2% 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.
7.04 SELECTION OF INTEREST PERIODS. With respect to each LIBO 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;
(b) the first Interest Period for a LIBO 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.
7.05 ACCEPTANCE FEES.
(a) Upon the acceptance of any draft of Kinross Canada under the Credit
Facility pursuant hereto, Kinross Canada shall pay to the 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 Kinross Canada's draft and
ending on but excluding the maturity date of the Bankers' Acceptance; provided,
however, that such fee shall not be less than $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 Lenders deducting the amount thereof from
the BA Discounted Proceeds before advancing the BA Proceeds to the
Administrative Agent as provided in Section 3.04(c). With
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respect to each rollover or conversion into Bankers' Acceptances, such
acceptance fees shall be paid by Kinross Canada to the Administrative Agent as
provided in Section 3.04(c). Each such payment is non-refundable and fully
earned when due.
7.06 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 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.
7.07 LETTER FEES.
(a) The applicable Borrower shall pay to the Lenders, in accordance with
Section 3.08, an issuance fee in advance on the date each Letter is issued
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 its term; provided that the minimum issuance fee for each Letter shall
be U.S.$150. In addition, with respect to all Letters, the applicable 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 on or after the Syndication Date,
the applicable Borrower shall pay to the Issuing Lender, in accordance with
Section 3.08, a fronting fee in advance on the date each Letter is issued or
renewed calculated at a rate of 0.15% per annum on the amount of each such
Letter for a period of time equal to its term. For certainty, the aforesaid
fronting fee shall also be due and payable on the Syndication Date with respect
to any outstanding Letters issued prior thereto, such fronting fee with respect
to each such outstanding Letter to be calculated on the then contingent
liability of the Issuing Lender on the Syndication Date for the balance of its
term. Each such payment is non-refundable and fully earned when due.
7.08 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 11.01(a)(iii)
that has previously been delivered to the Administrative Agent with respect to
the second immediately preceding Fiscal Quarter.
ARTICLE 8
RESERVE, CAPITAL, INDEMNITY AND TAX PROVISIONS
8.01 CONDITIONS OF CREDIT. The obtaining or maintaining of credit hereunder
shall be subject to the terms and conditions contained in this Article 8.
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8.02 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 applicable 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 8.02(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
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limitation shall not apply to any such cost, reduction, payment
or foregone return of a retroactive nature.
8.03 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 8.02(b) (the "Affected Lender"), then the
Borrowers may indicate to the Administrative Agent in writing that they desire
to replace the Affected Lender with one or more of the other Lenders, and the
Administrative Agent shall then forthwith give notice to the other 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 Loan 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
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 Loan 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 Loan 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 9.06. 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 Commitments of
such Assenting Lender by the respective amounts of such assumption.
8.04 INDEMNITY RELATING TO CREDITS. Upon notice from the Administrative Agent to
the applicable 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 Lenders such amount or amounts as will
compensate the Administrative Agent or the Lenders (including, for certainty,
the Issuing Lender) for any loss, cost or expense incurred by them:
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(a) in the liquidation or redeposit of any funds acquired by the
Lenders to fund or maintain any portion of a LIBO 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 LIBO 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 LIBO 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.
8.05 INDEMNITY FOR TRANSACTIONAL AND ENVIRONMENTAL LIABILITY.
(a) The Borrowers hereby agree to indemnify and hold the Administrative
Agent, each 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 8.05(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 Loan Documents and any
instrument, document or agreement
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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 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 8.05(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 negligence or willful misconduct.
(c) All obligations provided for in this Section 8.05 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 8.05 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 8.05, 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 8.05 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.
8.06 PAYMENTS FREE AND CLEAR OF TAXES. Any and all payments made hereunder or
under any other Loan 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
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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
8.06) 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 8.06 shall survive indefinitely the permanent repayment of the
outstanding credit hereunder and the termination of the Credit Agreement.
ARTICLE 9
REPAYMENTS AND PREPAYMENTS
9.01 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. 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.
9.02 EXTENSION OF MATURITY DATE.
(a) The Borrowers may request, by written request given to the
Administrative Agent (the "Extension Request") not earlier than 120 nor later
than 90 days prior to the then current Maturity Date, that this agreement be
amended to extend the Maturity Date to a date one year later than the effective
date of such amendment (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. 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 Amendment has been
consented to by Lenders which, in the aggregate, have extended to the Borrowers
under the Credit Facility an amount of credit outstanding which is equal to at
least four-fifths of the total amount of credit outstanding under the Credit
Facility at such time, but has not been consented to by all of the Lenders, then
on or before the second Banking Day following the aforesaid 30 day period, the
Administrative Agent shall give written notice to the Borrowers and the Lenders
advising as to those
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Lenders who have irrevocably consented to the Extension Amendment (the
"Consenting Lenders") and those Lenders who have not consented or who have been
deemed to have not consented to the Extension Amendment (the "Dissenting
Lenders"). For certainty, the determination of whether such four-fifths consent
threshold has been met may be made, subject to the terms and conditions hereof,
following a permanent reduction of the Credit Facility pursuant to Section 2.04.
(b) A Consenting Lender, at its option, may acquire all or any portion
of the rights and obligations of the Dissenting Lenders under the Credit
Facility by giving written notice to the Administrative Agent of the portion of
the rights and obligations of the Dissenting Lenders under the Credit Facility
which such Consenting Lender is prepared to acquire. Such notice shall be given
within 10 days following receipt of the notice from the Administrative Agent
advising as to the Consenting Lenders and the Dissenting Lenders pursuant to
Section 9.02(a). If more than one Consenting Lender gives notice to the
Administrative Agent that it wishes to acquire all or a portion of the rights
and obligations of the Dissenting Lenders under the Credit Facility, then each
Consenting Lender shall be entitled to acquire its rateable portion of the
rights and obligations of the Dissenting Lenders under the Credit Facility. For
the purpose of this Section 9.02(b), the Consenting Lenders' rateable portion
shall be determined based on the aggregate amount of the Individual Commitments
with respect to the Credit Facility (before acquisition under this Section 9.02)
of each of the Consenting Lenders wishing to acquire a portion of the rights and
obligations of the Dissenting Lenders under the Credit Facility. The
Administrative Agent shall give written notice to the Borrowers within two
Banking Days following the expiry of the time for Consenting Lenders to give
notice of acquisition pursuant to this Section 9.02(b), of the Individual
Commitments of the Dissenting Lenders with respect to the Credit Facility to be
so acquired.
(c) If one or more of the consenting Lenders (the "Acquiring Lenders")
has given notice to the Administrative Agent that it wishes to acquire all or a
portion of the rights and obligations of the Dissenting Lenders under the Credit
Facility pursuant to Section 9.02(b), then, concurrently with the notice given
to the Borrowers pursuant to Section 9.02(b), the Administrative Agent shall
give notice to each of the Acquiring Lenders setting out the amount of the
Individual Commitments of and the amount of the outstanding credit extended by
the Dissenting Lenders to be acquired by each of the Acquiring Lenders in
accordance with Section 9.02(b) and of the date (the "Acquisition Date") on
which the acquisition shall be effective. The Acquisition Date shall be a date
to be determined by the Administrative Agent but in any event prior to the then
current Maturity Date. At or before 11:00 a.m. (Toronto time) on the Acquisition
Date, each Acquiring Lender shall deposit with or transfer to the Administrative
Agent for the account of the Dissenting Lenders an amount equal to the amount of
the outstanding credit to be acquired by it pursuant to this Section 9.02(c) and
the Borrowers shall pay to the Administrative Agent, on behalf of the Dissenting
Lenders, all accrued and unpaid interest on any outstanding credit being
acquired by the Acquiring Lenders. Upon receipt of such amounts, the
Administrative Agent shall (iii) disburse such amounts to each of the Dissenting
Lenders in accordance with their respective entitlement thereto against delivery
of assignments in the form of Schedule C hereto evidencing the assignment by the
Dissenting Lenders
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to the Acquiring Lenders of their respective right, title and interest in and to
those portions of the outstanding credit to be acquired hereunder; and (iv) make
appropriate entries in the books of account regarding the Credit Facility. The
provisions of Section 15.05(c) shall apply mutatis mutandis to any acquisition
pursuant to this Section 9.02.
(d) If the Borrowers have requested an Extension Amendment and such
Extension Amendment has not been consented to by all of the Lenders, and if the
Acquiring Lenders have not acquired all of the rights and obligations of the
Dissenting Lenders under the Credit Facility, then the Borrowers may locate one
or more other Persons ("Substitute Lenders"), satisfactory to the Administrative
Agent acting reasonably and who irrevocably consents to the Extension Amendment,
to become Lenders and to acquire all or a rateable portion of the rights and
obligations of the Dissenting Lenders under the Credit Facility which have not
been acquired by the Acquiring Lenders. If not all of the rights and obligations
of the Dissenting Lenders under the Credit Facility have been acquired by
Acquiring Lenders or Substitute Lenders or both on or before the then current
Maturity Date, there shall be no extension of the then current Maturity Date. If
all of the rights and obligations of the Dissenting Lenders under the Credit
Facility have been acquired by Acquiring Lenders or Substitute Lenders or both
on or before the then current Maturity Date, the Extension Amendment shall
become effective on the then current Maturity Date.
9.03 VOLUNTARY PREPAYMENTS UNDER CREDIT FACILITY. Subject to Section 9.05, 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 on any day other than the last day of their term) at any time,
without penalty, provided that Section 8.04(a) shall be complied with in
connection with any such prepayment. Amounts which are prepaid as aforesaid may
be reborrowed.
9.04 MANDATORY PREPAYMENTS. The Borrowers shall prepay outstanding credit under
the Credit Facility at the time, and in the amount, of (x) any prepayment or
cancellation of any Industrial Revenue Bond, (y) any permanent reduction or any
prepayment (which cannot be reborrowed) of the Omolon Working Capital Facility
or (z) any prepayments of the Omolon Subordinated Debt Facility in excess of the
annual scheduled repayments of principal thereunder of approximately
U.S.$4,200,000. Amounts prepaid as aforesaid may not be reborrowed.
9.05 PREPAYMENT NOTICE. The Borrowers shall give written notice to the
Administrative Agent of each voluntary prepayment pursuant to Section 9.03. Such
notice (a "Prepayment Notice") shall be irrevocable, shall be given in
accordance with Section 3.12 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.
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9.06 REIMBURSEMENT OR CONVERSION ON PRESENTATION OF LETTERS.
(a) On presentation of a Letter and payment thereunder by the Issuing
Lender, the Borrowers 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 Borrowers 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 Kinross Canada), 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 either 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
Borrowers do not fully reimburse the Issuing Lender on or before the date of
payment, then Section 9.06(a) shall apply to deem a Loan to be outstanding to
the applicable Borrower under this agreement in the manner therein set out. Each
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 Lender is participating in the deemed Loan in
accordance with its Pro Rata Share.
(c) Each 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 Borrowers do not fully reimburse the Issuing Lender therefor.
(d) For certainty, the obligations in this Section 9.06 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.
9.07 LETTERS SUBJECT TO AN ORDER. Subject to Section 13.02, the Borrowers 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.
9.08 CURRENCY OF REPAYMENT. All payments and repayments of outstanding credit
hereunder shall be made in the currency of such outstanding credit.
9.09 REPAYMENTS OF CREDIT EXCESS. The Borrowers shall repay to the Lenders the
amount of any Credit Excess as follows:
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(a) the amount of such Credit Excess, to the extent any Prime Rate
Loan, Base Rate Canada Loan or Base Rate New York Loan is
outstanding, on demand; and
(b) to the extent such Credit Excess is not fully repaid pursuant to
paragraph (i) above, as at the maturity date of each Bankers'
Acceptance or LIBO Loan and as at the date of any conversion
pursuant to Article 6.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.01 REPRESENTATIONS AND WARRANTIES. To induce the Lenders and the
Administrative Agent to enter into this agreement and 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 COMPANIES. Each Company is a corporation duly
incorporated and organized and validly subsisting in good
standing under the laws of its jurisdiction of incorporation.
Each Company is duly qualified, registered or licensed in all
jurisdictions where such qualification, registration or licensing
is required. Each Company 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 Loan 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 Company of the Loan Documents to which it
is a party. Each Company has duly executed and delivered the Loan
Documents to which it is a party. The Loan Documents to which
each Company is a party are legal, valid and binding obligations
of such Company, enforceable against such Company 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.
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(c) COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance by each Company of the Loan 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 Company or of any law,
regulation, judgment, decree or order binding on or applicable to
such Company or to which its property is subject or of any
material agreement, lease, licence, permit or other instrument to
which such Company is a party or is otherwise bound or by which
such Company 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 Fiscal Year ended December 31, 1999 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 except, in connection with the Macassa Mine,
title defects or irregularities that could not reasonably be
expected to have a Material Adverse Effect.
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(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 or the United States
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.
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(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
noncompliance 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
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non-issuance or noncompliance 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. There is no French form of the
corporate name of any Company.
(n) EXECUTIVE OFFICES. Each of the Companies has more than one place
of business. The addresses of the chief executive office of each
Company (for the purposes of the PPSA, the UCC or any similar law
of any other jurisdiction) are as set out in Schedule D hereto.
(o) LOCATIONS OF TANGIBLE PERSONAL PROPERTY. The addresses of all
locations of the inventory, equipment and other tangible personal
property of each Company are as set out in Schedule N hereto.
(p) CONSENTS, APPROVALS, ETC. No consents, approvals,
acknowledgments, 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 Companies in favour of
the Administrative Agent pursuant to the Security Documents and
to ensure the perfection and the intended priority of such
Security. None of the Companies 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 FAIRBANKS U.S., MELBA CREEK AND TEKO INC.
(i) The authorized capital of Fairbanks U.S. consists of
1,000 shares with a par value of $100 each, of which 10
shares have been issued and are outstanding as fully
paid and non-assessable. Kinam U.S. 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
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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.
(ii) The authorized capital of Melba Creek consists of
10,000,000 common shares of U.S.$0.01 par value per
share, of which 100,000 common shares have been issued
and are outstanding as fully paid and non-assessable.
Fairbanks Canada is the owner of record of all of the
issued and outstanding shares of Melba Creek. There are
no outstanding warrants, options or other agreements
which require or may require the issuance of any shares
of Melba Creek or the issuance of any debt or securities
convertible into shares of Melba Creek, there are no
outstanding debt or securities convertible into shares
of Melba Creek and there are no shares of the Melba
Creek allotted for issuance.
(iii) The authorized capital of Teko Inc. consists of 25,000
shares with a par value of $1 each, of which 100 shares
have been issued and are outstanding as fully paid and
non-assessable. Teko Ltd. is the owner of record of all
of the issued and outstanding shares of Teko Inc. There
are no outstanding warrants, options or other agreements
which require or may require the issuance of any shares
of Teko Inc. or the issuance of any debt or securities
convertible into shares of Teko Inc., there are no
outstanding debt or securities convertible into shares
of Teko Inc. and there are no shares of the Teko Inc.
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. $*.
(s) RESTRICTED SUBSIDIARIES AND PARTNERSHIPS. There are no Restricted
Subsidiaries of the Borrower other than Kinam U.S., Kinam Canada,
Fairbanks Canada, Melba Creek, Kinam Refugio, LT Acquisition,
Teko Inc. and Teko Ltd. 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. The chart attached hereto as Schedule H
accurately sets out the corporate structure of the Companies and
evidences (i) intercorporate share ownership and (ii) ownership
of the Hoyle Pond Mine, Fort Knox Mine, Macassa Mine, QR Mine and
Refugio Mine.
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(u) SOLVENCY AFTER DRAWDOWN. On an unconsolidated basis,
(i) the assets of each of Kinross U.S.A. and Fairbanks U.S.
shall exceed its respective liabilities, including
contingent liabilities;
(ii) the capital of each of Kinross U.S.A. and Fairbanks U.S.
shall not be unreasonably small to conduct its
respective business; and
(iii) neither Kinross U.S.A. nor Fairbanks U.S.A. 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. Neither Kinross U.S.A.
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 G, 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 G, U or X. Terms for
which meanings are provided in F.R.S. Board Regulation G, 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 by all insurable risks
and hazards, 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
party or parties insured thereunder of the full amount of any
insured loss.
(y) YEAR 2000. In relation to any Company, any reprogramming required
to permit the proper functioning, in and following the year 2000,
of (i) each such Company's computer systems and (ii) equipment
containing embedded microchips (including
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systems and equipment supplied by others or with which each such
Company's systems interface) and the testing of all such systems
and equipment, as so reprogrammed, were substantially completed
by September 30, 1999. The cost to each such Company of such
reprogramming and testing and of the reasonably forseeable
consequences of year 2000 to each such Company (including,
without limitation, reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or a
Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the
computer and management information systems of each such Company
are and, with ordinary course upgrading and maintenance, will
continue for the term of this agreement to be, sufficient to
permit each Company to conduct its business without Material
Adverse Effect.
(z) REAL PROPERTY. Melba Creek owns no real property other than its
51% interest in the Fort Knox Deposit. Fairbanks U.S. owns no
real property other than (x) its 49% interest in the Fort Knox
Deposit and (y) its 65% interest in the True North Deposit. Teko
Inc. owns no real property other than its 35% interest in the
True North Property and the Ryan Lode Deposit.
(aa) NO OMISSIONS. None of the representations and statements of fact
set forth in this Section 10.01 omits to state any material fact
necessary to make any such representation or statement of fact
not misleading in any material respect.
10.02 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of the Borrowers contained in Section 10.01 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
11.01 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):
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(i) within 120 days after the end of each Fiscal Year,
copies of the audited consolidated and unaudited
consolidating financial statements of each Borrower for
such Fiscal Year, the unaudited partially consolidated
financial statements of each Company for such Fiscal
Year and the auditors' report thereon together with 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 and consolidating
financial statements of each Borrower and partially
consolidated financial statements of each Company;
(iii) within 45 days after the end of each Fiscal Quarter and
within 120 days after the end of each Fiscal Year, 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 60 days after the end of each Fiscal Quarter a
report summarizing Kinross Canada's consolidated hedge
position, such report to be substantially in the form of
Schedule K;
(v) prior to the beginning of each Fiscal Year, the budget
of Kinross Canada for such Fiscal Year, such budget to
be substantially in the form of the budget with respect
to the preceding Fiscal Year provided to the
Administrative Agent; and
(vi) 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 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), issue a Letter to replace the UBS
Letter and other Letters to replace outstanding letters of credit
and otherwise for general corporate purposes.
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(d) INSURANCE. The Borrowers shall, and shall cause each Restricted
Subsidiary 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 Lenders, named as loss payee and
named insured as their interest may appear with respect to all
property, boiler and machinery insurance relating to the Fort
Knox Mine. The Borrowers shall deliver to the Administrative
Agent certified copies of all of the insurance policies, riders
and endorsements relating to the aforesaid insurance. The
covenants contained in this Section 11.01(d) shall, without
duplication, be in addition to any covenants relating to
insurance which are contained in any of the Security Documents.
(e) ACCESS TO SENIOR FINANCIAL OFFICERS. Upon the request of the
Administrative Agent at reasonable intervals, the Borrowers
shall, and shall cause each Restricted 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 reimburse the
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 and out-of-pocket disbursements of counsel to the
Administrative Agent and any independent engineer and 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, interpretation and enforcement of this agreement 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) and any lien
search fees and lien registration fees.
(g) NOTICE OF EXPROPRIATION. The Borrowers shall promptly notify the
Administrative Agent of the commencement or the written threat of
any expropriation 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 Restricted Subsidiary to, permit representatives
of the Administrative Agent to inspect the Secured Assets and for
that purpose to enter on any property which is owned and
controlled by the Borrowers or the Restricted Subsidiaries and
where any
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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 OR EXECUTIVE OFFICE. If any Company changes its
corporate name or changes the location of its chief executive
office or head office, the Borrowers shall promptly notify the
Administrative Agent in writing of the details of such change.
(j) CORPORATE EXISTENCE. Other than as permitted pursuant to the
proviso in Section 11.02(b), the Borrowers shall, and shall cause
each Restricted 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
Restricted 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
Restricted 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 Restricted 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 Restricted
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.
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(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
Restricted 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 11.01(n).
(o) TANGIBLE NET WORTH. The Borrowers shall at all times maintain
Tangible Net Worth in an amount greater than the aggregate of:
(i) U.S. $475,000,000; and
(ii) the aggregate of 50% of Net Income for each Fiscal
Quarter after the Fiscal Quarter ending December 31,
1999 which has been completed on or before the date of
determination and, for the purposes of this covenant,
(x) if Net Income for any period 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 without the restriction of taking
into account only the Companies.
(p) NET INDEBTEDNESS/RESERVES RATIO. The Borrowers shall at all times
maintain the Net Indebtedness/Reserves Ratio in an amount less
than or equal to U.S. $35 per ounce.
(q) NET INDEBTEDNESS/ROLLING OCF RATIO. The Borrowers shall, as at
the last day of each Fiscal Quarter, maintain the Net
Indebtedness/Rolling OCF Ratio in an amount less than or equal to
3.5:1.
(r) AGGREGATE CASH BALANCES. The Borrowers shall, and shall cause the
Restricted Subsidiaries to, as at the last day of each Fiscal
Quarter maintain aggregate cash
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balances of the Companies in the Investment Accounts (in all
cases not subject to a Lien other than in favour of the
Administrative Agent) which exceed the aggregate of:
(i) U.S. $20,000,000; and
(ii) the product of X and Y
where X = the Projected Production as at such date; and
Y = the amount by which U.S. $300 exceeds the Projected
Realized Price as at such date.
The Borrowers shall, and shall cause the Restricted Subsidiaries
to, maintain aggregate cash balances in the Investment Accounts
for the entirety of the Fiscal Quarter immediately following the
last day of the preceding Fiscal Quarter in an aggregate amount
in excess of the aggregate cash balances as at such last day
unless such cash balances are required to fund normal course
expenses as set out in the most recent budget provided by the
Borrowers to the Administrative Agent.
(s) HOYLE POND AND FORT KNOX MINES. Kinross Canada shall, directly or
indirectly, at all times maintain 100% ownership of the Hoyle
Pond Mine and Fort Knox Mine.
(t) INTERCOMPANY INDEBTEDNESS. The Borrowers shall cause all
intercompany Indebtedness owing by any Company to any direct or
indirect subsidiary of any Borrower (other than to another
Company) to be subordinated and postponed, pursuant to the
Postponement and Subordination Undertaking, to the Indebtedness
of such Company to the Lenders and the Administrative Agent for
so long as a Default has occurred and is continuing.
(u) INVESTMENT ACCOUNTS. Subject to Section 11.02(i), the Borrowers
shall, and shall cause each Restricted Subsidiary to, maintain
all cash 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.
(v) SINKING FUND ACCOUNT. If on any Reduction Date the aggregate
credit outstanding under all Letters exceeds the amount of the
Credit Facility at such time (assuming the reduction of the
Credit Facility by the applicable Scheduled Reduction
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Amount), Kinross Canada may on such Reduction Date deposit in
pledge in the Sinking Fund Account an amount equal to such
excess. If on the date of any mandatory prepayment of outstanding
credit under the Credit Facility pursuant to Section 9.04, the
aggregate amount of credit outstanding under all Letters exceeds
the amount of the Credit Facility at such time (assuming the
reduction of the Credit Facility by the amount of such mandatory
prepayment), Kinross Canada may on the required date of such
mandatory prepayment deposit in pledge in the Sinking Fund
Account an amount equal to such excess.
(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 installment 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
installment 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
Restricted 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
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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.
11.02 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 Restricted Subsidiary to, enter into or grant, create, assume
or suffer to exist any Lien affecting any of their respective
properties, assets or undertaking, save and except only for the
Permitted Liens.
(b) CORPORATE EXISTENCE. The Borrowers shall not, and shall not
permit or suffer any Restricted 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 Companies 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 any of the shares of Kinross
U.S.A. or Fairbanks U.S. The Borrowers
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shall not suffer or permit the sale or other disposition of any
of the shares of the Restricted Subsidiaries. The Borrowers shall
not, and shall not suffer or permit any of the Restricted
Subsidiaries to, sell or otherwise dispose of any of the Secured
Assets ; provided, however, that this prohibition on sale or
other disposition shall not prohibit (x) the Companies allowing
mineral claims to lapse on the Undeveloped Portion of the Fort
Knox 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 Knox Mine. Subject
always to the preceding three sentences, the Borrowers shall not,
and shall not suffer or permit any Restricted Subsidiary to, in
any particular Fiscal Year, sell or otherwise dispose of any of
their other respective assets (other than the disposition of
inventory and worn out, unserviceable or obsolete equipment in
the ordinary course of business) individually or in the aggregate
or in excess of U.S.$25,000,000. For purposes of greater
certainty, (A) the sale of metal product constitutes part of the
ordinary course of business of the Companies and (B) this Section
11.02(c) shall not apply to any sale by (x) any Borrower of any
of its portfolio of equity securities in junior mining companies
or (y) any Company to another Company of the former's equipment.
(d) ATTRIBUTABLE DEBT. The Borrowers shall not suffer or permit
Attributable Debt at any time to exceed U.S. $40,000,000.
(e) GOLD HEDGING CONTRACTS. The Borrowers shall not, and shall not
suffer or permit the Restricted Subsidiaries to, have outstanding
any gold hedging contracts which create matured or contingent
obligations to deliver gold in excess of (x) 80% of the projected
production of the Companies in any future 12 month period or (y)
40% of Reserves at the date of determination
(f) REGULATION G, U OR X. The Borrowers shall not, and shall not
suffer or permit any Restricted 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 for a purpose which
violates, or would be inconsistent with, Regulation G, U or X of
the F.R.S. Board.
(g) CAPITAL MARKET TRANSACTIONS. The Borrowers shall not, and shall
not suffer or permit any Restricted Subsidiary to, enter into any
capital market transaction for speculative purposes.
(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 or
the agreements evidencing the OPIC/EBRD Omolon Indebtedness, the
Omolon Working Capital Facility or the Omolon Subordinated
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Debt Facility to the extent such amendments relate to rate,
amortization, term or security.
(i) ACCOUNT BALANCES OF NON-RESTRICTED SUBSIDIARIES. The Borrowers
shall not suffer or permit the aggregate balance (both the cash
balance and the value of invested funds) of all bank accounts and
investment accounts maintained by all of the Companies outside of
the Investment Accounts to exceed $500,000 or the Canadian Dollar
Equivalent thereof.
11.03 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
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
12.01 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 applicable Borrower shall have complied with the requirements
of Article 4, 5 or 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 10.01 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; and
(d) the Credit Facility has not been terminated pursuant to Section
2.05.
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12.02 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 the date such credit is extended:
(a) the conditions precedent set forth in Section 12.01 have been
fulfilled;
(b) as continuing collateral security for the Secured Obligations,
each Borrower has duly executed and delivered to the
Administrative Agent the Borrower Security Documents to which it
is a signatory and the Restricted Subsidiaries have duly executed
and delivered to the Administrative Agent the Guarantees;
(c) as continuing collateral security for the obligations of
Fairbanks Canada, Kinam U.S., Kinam Refugio, Melba Creek, Teko
Inc. and Teko Ltd. under their respective Guarantees, each of
said Restricted Subsidiaries has duly executed and delivered to
the Administrative Agent the Guarantor Security Documents to
which it is a signatory;
(d) 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 Company;
(ii) a certificate of status or good standing for each
Company issued by the appropriate governmental body or
agency of the jurisdiction in which such Company is
incorporated;
(iii) a duly certified copy of the resolution of the board of
directors of each Company authorizing it to execute,
deliver and perform its obligations under each Loan
Document to which such Company is a signatory and, in
the case of Melba Creek, Fairbanks U.S., and Teko Inc.,
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 Company, in such
capacity, setting forth specimen signatures of the
individuals authorized to sign the Loan Documents to
which such Company is a signatory;
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(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 Melba Creek, Fairbanks U.S. and
Teko Inc. 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 11.01(d);
(viii) an opinion of each Company's counsel addressed to the
Lenders, the Administrative Agent and its counsel,
relating to the status and capacity of each Company, the
due authorization, execution and delivery and the
validity and enforceability of the Loan Documents to
which such Company is a party in the jurisdiction of
incorporation of such Company and in the Province of
Ontario and such other matters as the Administrative
Agent may reasonably request;
(ix) opinions of counsel to Melba Creek, Fairbanks U.S. and
Teko Inc. with respect to the title to the Fort Knox
Deposit, True North Deposit and Ryan Lode 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 Companies under, and the
enforceability against the Companies of, the Loan
Documents which are governed by the laws of the Province
of Ontario); and
(xi) certified copies of the IRB Loan Agreements and each of
the trust indentures under which the Industrial Revenue
Bonds are issued;
(e) there has not occurred a material adverse change in the property,
assets, financial condition, operations, prospects or business of
any Company (it being acknowledged that the foregoing shall not
include any change or effect attributable to changes in the
economy of the United States, Canada or any other country or
changes attributable to the seasonality of the Companies'
businesses);
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(f) all of credit extended in favour of Kinross Canada and Kinross
U.S.A. under the Existing Credit Agreement shall have become
obligations under the Credit Facility pursuant to Section 12.04
and all commitments of The Bank of Nova Scotia under the Existing
Credit Agreement shall have been terminated and any collateral
security therefor released and discharged;
(g) the Administrative Agent shall have completed, to its
satisfaction in its sole and absolute discretion, a review of all
agreements evidencing Indebtedness of the Borrowers and their
subsidiaries;
(h) the Administrative Agent has received evidence satisfactory to
it, in its sole and absolute discretion, that:
(i) the aggregate cash balances of the Companies exceeded
U.S. $93,750,000 as at December 31, 1999;
(ii) the Omolon Working Capital Facility has been permanently
reduced to no more than U.S. $7,500,000; and
(iii) the OPIC/EBRD Omolon Indebtedness has become
Non-Recourse Indebtedness;
(i) the Administrative Agent shall have completed, to its
satisfaction, a review of an updated three year budget of the
Companies;
(j) the Administrative Agent's senior mining engineer, in conjunction
with an independent engineer retained by the Administrative
Agent, shall have completed, to their satisfaction, a technical
and environmental due diligence review;
(k) the Administrative Agent has received the Postponement and
Subordination Undertaking and the Environmental Indemnity
Agreement, duly executed by all parties thereto;
(l) the Administrative Agent has received 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;
(m) 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 referred to herein;
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(n) 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, acknowledgments,
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
Companies in favour of the Administrative Agent pursuant to the
Security Documents and to ensure the perfection and the intended
priority of such security; and
(o) the Borrowers shall have paid to 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 Loan Documents.
Such fees shall include, without limitation, with respect to each
Existing Letter, the payment by the Borrowers of an amount equal
to any additional amount that would have been payable by the
Borrowers if such Existing Letter had been initially issued under
this agreement (for the balance of its term); and
(p) all current account documentation shall have been completed to
the satisfaction of the Administrative Agent.
12.03 WAIVER. The terms and conditions of Sections 12.01 and 12.02 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
12.01 in whole or in part in respect of any other extension of credit.
12.04 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. The parties hereby agree that, upon the date of the completion of the
fulfilment of the conditions precedent set forth in Sections 12.01(b) to (d) and
12.02(b) to (r), all Existing Letters shall be deemed to be Letters issued under
the Credit Facility, the provisions of this agreement shall henceforth apply
thereto and supersede the Existing Credit Agreement and any other reimbursement
agreement previously executed by Kinross Canada in respect thereof and such
deeming shall constitute the initial drawdown hereunder. Any accrued but unpaid
fees owing with respect to the Existing Letters as at such date shall be deemed
to be accrued and unpaid fees hereunder. Upon the Existing Letters being deemed
to be Letters hereunder, Kinross Canada shall forthwith pay to the Lenders an
amount equal to any Letter issuance fees owing with respect to such Letters as a
result of the Applicable Rate applicable thereto being higher than the rate
applicable to such Letters at the time of their issuance.
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ARTICLE 13
DEFAULT AND REMEDIES
13.01 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 9.01;
(b) the failure of any Borrower to pay any amount due hereunder
(other than amounts due pursuant to Section 9.01) within five
Banking Days after the payment is due;
(c) the commencement by any Company or by any other Person of
proceedings for the dissolution, liquidation or winding up of any
Company or for the suspension of operations of any Company (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 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 the Borrowers 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
the Borrowers 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 the Borrowers notice thereof;
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(f) if a writ, execution, attachment or similar process is issued or
levied against all or any portion of the property of any Company
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
Company of any covenant or provision of any Loan Document (other
than those previously referred to in this Section 13.01) 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 the Borrowers 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 Company 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) 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;
(k) 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
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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;
(l) 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 any of the Postponement and
Subordination Undertaking, the Environmental Indemnity Agreement
or any Hedging Agreement; or
(m) any one or more of the Loan Documents is determined by a court of
competent jurisdiction not to be a legal, valid and binding
obligation of any Company which is a party thereto, enforceable
by the Administrative Agent, the Lenders or any of them against
such Company and such Loan Document has not been replaced by a
legal, valid, binding and enforceable document which is
equivalent in effect to such Loan Document, assuming such Loan
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 Company actively cooperates with the Administrative Agent
to so replace such Loan Document;
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 all collateral security therefor
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 all collateral security therefor 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 Kinross Canada
to the Lenders of the present value of the face amount of all Bankers'
Acceptances issued and outstanding hereunder, Kinross Canada shall have no
further liability to the Lenders with respect to
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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.
13.02 REFUND OF OVERPAYMENTS. With respect to each Letter for which the Issuing
Lender has been paid all of its contingent liability pursuant to Section 9.01,
9.07 or Section 13.01 and provided that all amounts due by the Borrowers to the
Issuing Lender under Section 9.01, 9.07 and Section 13.01 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).
13.03 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
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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.
13.04 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 this agreement.
ARTICLE 14
THE ADMINISTRATIVE AGENT
14.01 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 Loan 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 Loan 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 14.01 on its own behalf and as agent and
trustee for its directors, officers, employees and agents.
14.02 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 15.05 as the holder of all of the interests of such Lender under
the Loan Documents.
14.03 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.
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14.04 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 Loan Documents or any instrument, document or communication
furnished pursuant to or in connection with the Loan 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.
14.05 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 Loan 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.
14.06 RESPONSIBILITY OF ADMINISTRATIVE AGENT. The duties and obligations of the
Administrative Agent to the Lenders under the Loan 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.
14.07 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 13.01 or under 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
Loan 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 Loan 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.
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14.08 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 13.01 of this
agreement and under the other Loan 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 Loan 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
13.01 of this agreement or under the other Loan 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.
14.09 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 Loan 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 Loan Documents; or
(c) to any Lender or Lenders for any statements, representations or
warranties in any of the Loan Documents or in any other documents
contemplated thereby or in any other information provided
pursuant to any of the Loan Documents or any other documents
contemplated thereby or for the validity, effectiveness,
enforceability or sufficiency of any of the Loan 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) pro rata according to the
Exposure of each of them 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 Loan Documents or any other document contemplated thereby or any
action taken or omitted by the Administrative Agent under any of the Loan
Documents or any document contemplated thereby,
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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 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 or removal 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.
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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 Loan 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 or any Reduction Date or reduce
any Reduction Amount;
(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 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, any of the Security
Documents or any of the Guarantees, in whole or in part;
or
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(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 and the Administrative Agent pursuant hereto has become
immediately due and payable pursuant to Section 13.01 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 and the Administrative Agent pursuant hereto has become
immediately due and payable pursuant to Section 13.01 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 Loan 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
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whenever any Lender shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, compensation, or otherwise) on
account of any monies owing or payable by a Borrower to it hereunder in excess
of its pro rata share of payments on account of monies owing by such Borrower to
all the Lenders hereunder.
(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, the Exposure of a Lender under this agreement and the
Security Documents shall be the aggregate amount (expressed in U.S. dollars) of
the Individual Commitments of such Lender.
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14.20 DECISION TO ENFORCE SECURITY. Upon the Security becoming enforceable in
accordance with its terms, 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 Companies 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 Companies
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 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
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Obligations which have not then matured) to the Lenders
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 ENTERING INTO CONTRACTS. The Administrative Agent may enter into any
Security Document as agent for and on behalf of the Lenders.
14.24 OTHER SECURITY NOT PERMITTED. None of the Lenders shall be entitled to
enjoy any Lien with respect to any of the assets of any of the Companies other
than the Security.
ARTICLE 15
MISCELLANEOUS
15.01 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 (in the case of the
Borrowers and the Administrative Agent) or set out in Schedule A hereto (in the
case of the Lenders) 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.
15.02 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.
15.03 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.
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15.04 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.
15.05 ASSIGNMENT.
(a) Neither the Loan 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 (which consent
shall not be required for so long as an Event of Default has occurred and is
continuing if no Letters are outstanding at the time of the relevant assignment)
and of the Administrative Agent, a Lender may at any time sell all or any part
of its rights and obligations under the Loan Documents to one or more Persons
("Purchasing Lenders"). Upon such sale, the Lender shall, to the extent of such
sale, be released from its obligations under the Loan Documents (subject always
to its continuing obligations under Section 9.06) and each of the Purchasing
Lenders shall become a party to the Loan 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 Loan
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 15.01, unless and until the requisite consents to such assignment
have been obtained and unless and until a copy of a fully executed copy of such
instrument has been delivered to each of the
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Administrative Agent and the Borrower. 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 respective
amounts 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 Borrowers
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.
15.06 ENTIRE AGREEMENT. This agreement and the agreements referred to herein and
delivered pursuant hereto (including, without limitation, the Fee Letter)
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.
15.07 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 implementing and carrying out the
true intent and meaning of the Loan Documents or any agreement delivered
pursuant thereto and such additional security and legal opinions in connection
with the Secured Assets as the Administrative Agent may from time to time
request, in form and substance satisfactory to the Administrative Agent.
15.08 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 15.08
referred to as the "Judgment Currency") an amount due in another currency (such
other currency being hereinafter in this Section 15.08 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
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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 15.08(a)(ii) being hereinafter in this
Section 15.08 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 15.08(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
15.08(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 15.08 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.
15.09 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 sue 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
Knox Deposit Deed of Trust, the Ryan Lode Deposit Deed of Trust, the True North
Deposit Deed of Trust or any of them under Alaska Statutes 09.45.170-09.45.220.
- 91 -
IN WITNESS WHEREOF the parties hereto have executed and delivered this
agreement on the date first written above.
Kinross Gold Corporation KINROSS GOLD CORPORATION
57th Floor, Scotia Plaza
40 King Street West By: ______________________________
Toronto, Ontario Name:
M5H 2Y2 Title:
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By: ______________________________
Attention: Brian Penny, Vice-President Name:
and Chief Financial Officer and Title:
Chris Hill, Vice-President and
Treasurer
Telefax: (416) 363-6622
Kinross Gold U.S.A., Inc. KINROSS GOLD U.S.A., INC
c/o Kinross Gold Corporation
57th Floor, Scotia Plaza
40 King Street West By: ______________________________
Toronto, Ontario Name:
M5H 2Y2 Title:
By: ______________________________
Attention: Brian Penny, Vice-President Name:
and Chief Financial Officer and Title:
Chris Hill, Vice-President and
Treasurer
Telefax: (416) 363-6622
101
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Fairbanks Gold Mining, Inc. FAIRBANKS GOLD MINING, INC.
c/o Kinross Gold Corporation
57th Floor, Scotia Plaza
40 King Street West By: _____________________________
Toronto, Ontario Name:
M5H 2Y2 Title:
By: _____________________________
Attention: Brian Penny, Vice-President Name:
and Chief Financial Officer and Title:
Chris Hill, Vice-President and
Treasurer
Telefax: (416) 363-6622
THE BANK OF NOVA SCOTIA THE BANK OF NOVA SCOTIA, AS
Corporate Banking ADMINISTRATIVE AGENT
44 King Street West 16th Floor
Toronto, Ontario M5H 1H1 By: _____________________________
Name:
Title:
Attention: Unit Head
Bank Finance-Mining By: _____________________________
Telefax: (416) 866-2010 Name:
Title:
with a copy to:
THE BANK OF NOVA SCOTIA
Attention: Unit Head
Bank Financing-Syndications By: _____________________________
Name:
Telefax: (416) 866-3329 Title:
By: _____________________________
Name:
Title:
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THE BANK OF NOVA SCOTIA
(ATLANTA AGENCY)
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
103
SCHEDULE A
INDIVIDUAL COMMITMENTS
NAME AND ADDRESS OF LENDER INDIVIDUAL COMMITMENTS
- -------------------------- ----------------------
The Bank of Nova Scotia U.S.$110,000,000
Bank Finance- Mining
44 King Street West, 16th Floor
Toronto, Ontario
M5H 1H1
Attention: Unit Head
Bank Finance-Mining
Telefax: (416) 866-2010
104
B-1
SCHEDULE B
COMPLIANCE CERTIFICATE
TO: THE BANK OF NOVA SCOTIA
I, *, the [senior financial officer] of Kinross Gold Corporation, hereby
certify that:
1. I am the duly appointed [senior financial officer] of Kinross Gold
Corporation, a Borrower named in the credit agreement made as of March 8, 2000
(the "Credit Agreement") between Kinross Gold Corporation, Kinross Gold U.S.A.,
Inc., Fairbanks Gold Mining, Inc., the Lenders named therein and The Bank of
Nova Scotia, as administrative agent of the Lenders and as such I am providing
this Certificate for and on behalf of Kinross Gold Corporation pursuant to the
Credit Agreement.
2. I am familiar with and have examined the provisions of the Credit Agreement
including, without limitation, those of Articles 10, 11 and 13 therein.
3. To the best of my knowledge, information and belief and after due inquiry, no
Default has occurred and is continuing.
4. As at or for the relevant period ending *, *, the amounts and financial
ratios as contained in Sections 11.01(o), (p), (q) and (r) of the Credit
Agreement are as follows and detailed calculations thereof are attached hereto:
Actual Required
Amount Amount
------ --------
(a) Tangible Net Worth * See Section 11.01(o)
(b) Net Indebtedness/Reserves * Less than U.S. $35/ounce
Ratio
(c) Net Indebtedness/Rolling OCF Ratio * Less than or equal to 3.5 to 1
(d) Aggregate Cash Balances * See Section 11.01(r)
5. As at the date hereof, the Attributable Debt consists of:
[itemize]
105
B-2
6. The attached calculation worksheet as at the relevant period ending *, *
accurately sets out the information therein contained.
7. Unless the context otherwise requires, capitalized terms in the Credit
Agreement which appear herein without definitions shall have the meanings
ascribed thereto in the Credit Agreement.
DATED this * day of *, 20* .
-----------------------------------------
(Signature)
-----------------------------------------
(Name - please print)
-----------------------------------------
(Title of Senior Financial Officer)
106
B-3
CALCULATION WORKSHEET
1. Tangible Net Worth
Actual:
Equity as of financial statements dated [ ] US$
Plus (without duplication):
Series B Preferred shares US$
$200MM convertible debentures US$
Less:
Intangible assets US$(____)
Tangible Net Worth
Minimum Required:
Base Level US$475 MM
Plus 50% Net Income since December 31, 1999 US$
Minimum Level US$
Compliance [Yes]/[No]
2. Net Indebtedness/Reserves Ratio
A. Net Indebtedness:
107
B-4
a) Indebtedness:
[itemize]
Obligor Type Amount
------- ---- ------
(L/C, loan, guarantee etc.)
1
2
3
-----------
Total Indebtedness (A)
b) Non-Recourse Indebtedness
[itemize]
Description of Non-Recourse
Obligor Indebtedness Amount
------- ---------------------------- ------
1.
2.
3.
------
Total Non-Recourse Indebtedness (B)
c) Cash Balances Held by Companies which are not subject to a Lien:
[itemize]
Company Amount
------- ------
1
108
B-5
2
3
Total Cash Balances (C)
----------
Net Indebtedness (A minus (B plus C): (D)
==========
B. Reserves:
Proven and Amount
Probable Produced
Reserves as Recoverable Since Remaining
of Yearend Recovery reserves Previous Reserves
Mine 19__ (1) Factor(2) (1) x (2) =(3) Yearend (4) (3)-(4)
---- ------------ --------- -------------- ----------- --------
1
2
3
Total Reserves at --------
Companies (E)
Net Indebtedness to Reserves Ratio D divided by E)
(maximum US$35/oz.)
Compliance [Yes]/[No]
109
B-6
3. Net Indebtedness to Rolling OCF Ratio:
Net Indebtedness (amount D above) US$______(F)
Rolling OCF of the Companies (trailing 4 quarter) US$______(G)
(show reconciliation adjusting for non-cash revenues and expenses,
reclamation costs outside Restricted Subsidiaries and Non-Recourse
Subsidiaries)
Net Indebtedness to Rolling OCF Ratio
(F divided by G)
(maximum 3.5:1)
Compliance [Yes]/[No]
4. Minimum Cash Balances:
Cash Balances (amount (C) above) US$______(J)
Minimum required:
- Base level US$20,000,000(K)
- Projected Production (next 18 months)
Mine Projected Production
---- --------------------
1
2
3 ____________________
Total Projected Production (L)
- Average Trailing 30 day spot price US$____/oz.(M)
110
B-7
- Hedged production
Hedge Instrument Amount (ozs.) Counterparty Delivery Date Hedge Price
---------------- ------------- ------------ ------------- -----------
1
2
3 ____________ ___________
Total (N) (O)
- Unhedged Production (L minus N) ____________ozs.(P)
- Projected Realized Price US$_______/oz.(Q)
[(P x M) + (N x O)] divided by (P + N)
- Minimum Cash Balance Required: US$____
K + [(US$300/oz. - Q) x L]
6. Investments/Loans by Companies:
itemize loans and equity investments by Companies in entities other than
Companies
7. Intercompany Debt:
itemize intercompany debt owed by any Company
111
C-1
SCHEDULE C
FORM OF ASSIGNMENT
Dated ____________, _____
Reference is made to the Credit Agreement made as of March 8, 2000 (the
"Credit Agreement"), between Kinross Gold Corporation, Kinross Gold U.S.A., Inc.
and Fairbanks Gold Mining, Inc., as borrowers, the Lenders named therein and The
Bank of Nova Scotia, as administrative agent of the Lenders (in that capacity,
the "Administrative Agent"). Terms defined in the Credit Agreement are used
herein as therein defined.
_________________________ (the "Assignor") and ___________________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, a % interest in and to all of
the Assignor's rights and obligations under the Credit Agreement as of the
Effective Date (as defined below) (including, without limitation, such
percentage interest in the Assignor's Individual Commitment as in effect on the
Effective Date, the credit extended by the Assignor under the Credit Facility
and outstanding on the Effective Date and the corresponding rights and
obligations of the Assignor under all of the Loan Documents).
2. The Assignor (i) represents and warrants that as of the date hereof its
Individual Commitment with respect to the Credit Facility is U.S. $ (without
giving effect to assignments thereof which have not yet become effective,
including, but not limited to, the assignment contemplated hereby), and the
aggregate outstanding amount of credit extended by it under the Credit Facility
is U.S. $ (without giving effect to assignments thereof which have not yet
become effective, including, but not limited to, the assignment contemplated
hereby); (ii) represents and warrants that it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Loan Documents or any other instrument or document furnished pursuant
thereto; (iv) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any of the Companies or the
performance or observance by the Companies of any of their obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (v) gives notice to the Administrative Agent and the Borrowers of the
assignment to the Assignee hereunder.
112
C-2
3. The effective date of this Assignment (the "Effective Date") shall be the
later of __________________ and the date on which a copy of a fully executed
copy of this Assignment has been delivered to the Borrowers and the
Administrative Agent in accordance with Section 15.01 of the Credit Agreement.
4. The Assignee hereby agrees to the specific Individual Commitment of
U.S. $_______________ with respect to the Credit Facility and to the address and
telefacsimile number set out after its name on the signature page hereof for the
purpose of notices as provided in Section 15.01 of the Credit Agreement.
5. As of the Effective Date (i) the Assignee shall, in addition to any rights
and obligations under the Loan Documents held by it immediately prior to the
Effective Date, have the rights and obligations under the Loan Documents that
have been assigned to it pursuant to this Assignment and (ii) the Assignor
shall, to the extent provided in this Assignment, relinquish its rights and be
released from its obligations under the Loan Documents, subject always to its
continuing obligations under Section 9.06 of the Credit Agreement.
6. The Assignor and Assignee shall make all appropriate adjustments in payments
under the Loan Documents for periods prior to the Effective Date directly
between themselves.
7. This Assignment shall be governed by, and construed in accordance with, the
laws of the Province of Ontario and the laws of Canada applicable therein.
[ASSIGNOR]
By: ____________________________________
Title:
113
C-3
[ASSIGNEE]
By: ____________________________________
Title:
Address
________________________________________
________________________________________
________________________________________
Attention: _____________________________
Telefax: _______________________________
Acknowledged and agreed to as of this * day of *, 20*.
THE BANK OF NOVA SCOTIA, AS ADMINISTRATIVE AGENT
By: ____________________________
Name:
Title:
+Acknowledged and agreed to as of this * day of *, 20*.
THE BANK OF NOVA SCOTIA, AS ISSUING LENDER
By: ____________________________
Name:
Title:
- --------
+ Not applicable if Event of Default outstanding and no Letters outstanding.
114
D-1
SCHEDULE D
CHIEF EXECUTIVE OFFICES
COMPANY ADDRESS
- ------- -------
Kinross Canada *
Kinross U.S.A. *
Fairbanks U.S. *
Fairbanks Canada *
Kinam U.S. *
Melba Creek *
LT Acquisition *
Teko Inc. *
Teko Ltd. *
115
E-1
SCHEDULE E
FORM OF DRAWDOWN NOTICE
TO: The Bank of Nova Scotia
RE: Credit Agreement made as of March 8, 2000 (the "Credit Agreement")
between Kinross Gold Corporation, Kinross Gold U.S. A., Inc. and
Fairbanks Gold Mining, Inc. as borrowers, the Lenders named therein and
The Bank of Nova Scotia, as administrative agent of the Lenders
- --------------------------------------------------------------------------------
Pursuant to the terms of the Credit Agreement, the undersigned hereby
irrevocably notifies you that it wishes to draw down under the Credit Facility
on [date of drawdown] as follows:
1. Availment Option: ______________________________________________________
1. Currency & Amount: _________________________________________________
2. If LIBO Loan, Interest Period: _____________________________________
3. If Bankers' Acceptance, term: ______________________________________
4. If Letter,
Type of Letter: ____________________________________________________
If issued on behalf of a subsidiary as well as on behalf of the
undersigned, the name of such subsidiary: __________________________
Date of Issuance: __________________________________________________
Named Beneficiary: _________________________________________________
Maturity Date: _____________________________________________________
Currency & Amount: _________________________________________________
Other Terms: _______________________________________________________
116
E-2
[You are hereby irrevocably authorized and directed to pay the proceeds of the
drawdown to - and this shall be your good and sufficient authority for so
doing.]
All capitalized terms defined in the Credit Agreement and used herein
shall have the meanings ascribed thereto in the Credit Agreement.
DATED the ___________ day of __________________, 20__.
[KINROSS GOLD CORPORATION/KINROSS
GOLD U.S.A., INC./FAIRBANKS GOLD
MINING, INC.]
Per: _____________________________________
Name:
Title:
117
F-1
SCHEDULE F
FORM OF ROLLOVER NOTICE
TO: The Bank of Nova Scotia
RE: Credit Agreement made as of March 8, 2000 (the "Credit Agreement")
between Kinross Gold Corporation, Kinross Gold U.S. A., Inc. and
Fairbanks Gold Mining, Inc. as borrowers, the Lenders named therein and
The Bank of Nova Scotia, as administrative agent of the Lenders
- --------------------------------------------------------------------------------
Pursuant to the terms of the Credit Agreement, the undersigned hereby
irrevocably requests a rollover of outstanding credit under the Credit Facility
on [date of rollover] as follows:
[Choose as appropriate]
Bankers' Acceptances
Maturity Date ___________
of Maturing
Bankers' Acceptances
Aggregate Face Amount $___________
of Maturing
Bankers' Acceptances
Portion Thereof $___________
to be Replaced
Term of New ______ days
Bankers' Acceptances
LIBO Loans
Maturity Date ___________
of Maturing
LIBO Loan
118
F-2
Principal Amount U.S.$_______
of Maturing
LIBO Loan
Portion Thereof U.S.$_______
to be Replaced
Interest Period _____ months
of New LIBO Loan
All capitalized terms defined in the Credit Agreement and used herein
shall have the meaning ascribed thereto in the Credit Agreement.
DATED the ___________ day of __________________, 20__.
[KINROSS GOLD CORPORATION/KINROSS
GOLD U.S.A., INC.]
Per: _____________________________________
Name:
Title:
119
G-1
SCHEDULE G
FORM OF CONVERSION NOTICE
TO: The Bank of Nova Scotia
RE: Credit Agreement made as of March 8, 2000 (the "Credit Agreement")
between Kinross Gold Corporation, Kinross Gold U.S. A., Inc. and
Fairbanks Gold Mining, Inc. as borrowers, the Lenders named therein and
The Bank of Nova Scotia, as administrative agent of the Lenders
- --------------------------------------------------------------------------------
Pursuant to the terms of the Credit Agreement, the undersigned hereby
irrevocably requests a conversion of outstanding credit under the Credit
Facility on [date of conversion] as follows:
[Choose as appropriate]
CONVERTING FROM CONVERTING INTO
Bankers' Acceptances Bankers' Acceptance
Maturity Date _______________ Aggregate Face Amount $_______________
of Bankers' Acceptances of New Bankers' Acceptances
to be converted
Aggregate Term of New ___________ days
Face Amount $_______________ Bankers' Acceptances
of said Bankers'
Acceptances
Portion Thereof $_______________ LIBO Loans
to be converted
Prime Rate Loans Principal U.S.$___________
Amount of
New LIBO Loan
Principal Amount $_______________ Interest _________ months
of Prime Rate Loan Period of
to be converted New LIBO Loan
120
G-2
Portion Thereof $_______________
to be converted
LIBO Loans
Maturity Date of ________________
Maturing LIBO Loan
Principal Amount of U.S.$___________
Maturing LIBO Loan
Portion Thereof to U.S.$___________
be converted
Base Rate Canada Loans Prime Rate Loans
Principal Amount U.S.$___________ Principal $_______________
of Base Rate Amount of
Canada Loan New Prime Rate
to be converted Loan
Portion Thereof U.S.$___________ Base Rate Canada Loan
to be converted
Base Rate New York Loan Principal U.S.$___________
Amount of
Principal Amount of U.S.$___________ New Base Rate
Base Rate New York Canada Loan
Loan to be converted
Portion Thereof U.S.$___________ Base Rate New York Loan
to be converted
Principal U.S.$___________
Amount of
New Base Rate
New York Loan
121
G-3
All capitalized terms defined in the Credit Agreement and used herein
shall have the meaning ascribed thereto in the Credit Agreement.
DATED the ___________ day of __________________, 20__.
[KINROSS GOLD CORPORATION/KINROSS
GOLD U.S.A., INC.]
Per: _____________________________________
Name:
Title:
122
H-1
SCHEDULE H
KINROSS GOLD CORPORATION
CORPORATE STRUCTURE
AS AT March 8, 2000
[TO BE UPDATED]
123
I-1
SCHEDULE I
REIMBURSEMENT INSTRUMENT
TO: The Bank Of Nova Scotia (the "Bank")
RE: Credit Agreement made as of March 8, 2000 (the "Credit Agreement")
between Kinross Gold Corporation, Kinross Gold U.S. A., Inc. and
Fairbanks Gold Mining, Inc., as borrowers, the Lenders named therein and
The Bank of Nova Scotia, as administrative agent of the Lenders
For good and valuable consideration, undersigned hereby agrees to
immediately reimburse the Issuing Lender the amount of each and any demand or
other request for payment presented to and paid by the Issuing Lender in
accordance with each Letter (as defined in the Credit Agreement) issued by the
Issuing Lender on behalf of the undersigned (even if, under laws applicable to
the rights of the beneficiary of such Letter, a demand or other request for
payment is validly presented after expiry of such Letter).
DATED as of the * day of *, 20*.
[NAME OF SUBSIDIARY]
By:
-------------------------------------
By:
-------------------------------------
124
J-1
SCHEDULE J
APPLICABLE RATES
ACCEPTANCE FEE
RATE, LIBO
PRIME RATE LOAN, LOAN INTEREST
NET BASE RATE CANADA RATE MARGIN
INDEBTEDNESS LOAN AND BASE RATE AND LETTER
/ROLLING OCF NEW YORK LOAN ISSUANCE FEE
LEVEL RATIO INTEREST RATE MARGIN RATE STANDBY FEE RATE
- ----- --------------- -------------------- --------------- -----------------
1 <1.0:1 0.00% p.a. 1.25% p.a. 0.25% p.a.
2 >= 1.0 to 1 0.25% p.a. 1.50% p.a. 0.375% p.a.
and < 1.5 to 1
3 >= 1.5 to 1 0.50% p.a. 1.75% p.a. 0.375% p.a.
and < 2.0 to 1
4 >= 2.0 to 1 0.75% p.a. 2.00% p.a. 0.50% p.a.
and < 2.5 to 1
5 >= 2.5 to 1 and 1.00% p.a. 2.25% p.a. 0.75% p.a.
3.0 to 1
6 >= 3.0 to 1 1.50% p.a. 2.75% p.a. 0.75% p.a.
125
K-1
SCHEDULE K
QUARTERLY HEDGE REPORT
KINROSS GOLD HEDGING SUMMARY
Consolidated Position as at 31-Dec-99
PUT OPTIONS TOTAL TOTAL
SPOT DEFERRED SALES PURCHASED CALL OPTIONS SOLD "FLOOR" PRICE "CAP PRICE"
- ----------------------- --- ------------- ----------------- --------------- -----------
1999 -- $ 0.00 0 $0.00 -- $ 0.00 0 $0.00 --
2000 350 $305.00 0 $0.00 $ 0.00 350 $305.00 350 305.00
2001 200 $320.00 0 $0.00 $ 0.00 200 $320.00 200 320.00
2002 200 $318.00 0 $0.00 100 $340.00 20 $318.00 300 325.33
2003 150 $325.00 0 $0.00 100 $340.00 150 $325.00 250 331.00
2004 100 $319.00 0 $0.00 100 $340.00 100 319.00 200 329.50
----- ------- --- ----- --- ------- ----- ------- ----- -------
Total 1,000 $315.00 0 $0.00 $340.00 1,000 $315.00 1,300 $320.77
===== ======= === ===== === ======= ===== ======= ===== =======
126
L-1
SCHEDULE L
EXISTING LETTERS
EXISTING LETTERS
- ------------------------------------------------------------------------------------------------------------------------------------
Obligor L/C# Amount Expiry Beneficiary
- ------- ------ --------------- -------- -------------------------------------------------
Kinross Canada 70062 $ 561,000 27-03-00 B.C. Minister of Finance
Kinross Canada 73274 $ 350,000 06-09-00 Minister of Northern Development & Mines
Kinross Canada 91669 $ 200,000 24-06-00 B.C. Minister of Finance & Corporate Relations
Kinross Canada 105552 $ 389,000 31-03-00 Minister of Northern Development & Mines
-----------
Total CAD 1,500,000
===========
Kinross Canada 111533 $ 50,000 06-07-00 Old Republic Insurance Company
Kinross Canada 48696 $ 4,096,929 02-06-00 U.S. Department of Interior
(Bureau of Land Management)
Kinross Canada and Kinross Goldbanks 67657 $ 50,500 20-08-00 U.S. Department of Interior
Mining Company (Bureau of Land Management)
Kinross Canada and Kinross Fallon Inc. 50927 $ 1,297,356 10-08-00 U.S. Department of Interior
(Bureau of Land Management)
Kinross Canada and Kinross U.S.A. 75090 $ 1,000,000 07-11-00 National Union Fire Insurance Company
of Pittsburgh P.A.
Kinross Canada and Kinross Delamar
Mining Company 70851 $ 335,000 24-09-00 Silver City Property Owners Inc.
Kinross Gold Corporation 128767 218,000 05-17-00 Nordberg Inc.
Kinross Gold Corporation 129749 654,500 03-17-00 Nordberg Inc.
Kinross Gold Corporation 138319 14,600,000 02-17-01 ABN Amro Bank Canada
Kinross Gold Corporation 138315 7,500,000 02-17-01 ABN Amro Bank Canada
Kinross Gold Corporation
o/b Kinross Gold U.S.A. Inc 116800 247,500 11/18/00 Reliance National Indemnity Company
-----------
USD $30,049,785
===========
127
M - 1
SCHEDULE M
POWER OF ATTORNEY - BANKERS ACCEPTANCES
WHEREAS Kinross Gold Corporation (the "Kinross Canada") wishes to
facilitate the issuance of Bankers' Acceptances pursuant to the terms of the
credit agreement dated March 8, 2000 between Kinross Canada, Kinross Gold
U.S.A., Inc. and Fairbanks Gold Mining, Inc., the Lenders named therein and The
Bank of Nova Scotia, as administrative agent of the Lenders (as amended,
supplemented and restated from time to time, the "Credit Agreement").
NOW THEREFORE, Kinross Canada hereby appoints [Name of Lender]
(hereinafter called the "Lender"), acting by any authorized signing officer of
the Lender, the attorney of Kinross Canada:
a. to sign for and on behalf and in the name of Kinross Canada as
drawer and, if applicable, as endorser, drafts ("Drafts") drawn on
the Lender and payable to or to the order of CDS & Co. (or other
nominee name of The Canadian Depository for Securities Limited) or
payable to or to the order of Kinross Canada; and
b. to fill in the amount, date and maturity date of such Drafts;
provided that such acts in each case are to be undertaken by the Lender in
accordance with instructions given to the Lender by or on behalf of Kinross
Canada as provided in this Power of Attorney. The signatures of any authorized
signatory of the Lender may be mechanically or electronically reproduced in
facsimile on Drafts in accordance herewith and such facsimile signatures shall
be binding and effective as if they had been manually executed by such
authorized signatory of the Lender.
Instructions to the Lender relating to the execution, completion,
endorsement, discount and/or delivery by the Lender on behalf of Kinross Canada
of Drafts which Kinross Canada wishes to submit to the Lender for acceptance by
the Lender shall be communicated by Kinross Canada to the Lender in writing in
accordance with the applicable Drawdown Notice, Rollover Notice or Conversion
Notice, as the case may be, which Drawdown Notice, Rollover Notice or Conversion
Notice shall specify the following:
a. a Canadian dollar amount which shall be the aggregate face amount of
the Drafts to be accepted by the Lender in respect of a particular
borrowing; and
b. a specified period of time (not less than 30 days or in excess of
180 days) which shall be the number of days after the date of such
Drafts that such Drafts are to be payable, and the dates of issue
and maturity of such Drafts.
128
M - 2
The communication in writing by Kinross Canada to the Lender for the
instructions referred to above shall constitute (a) the authorization and
instruction of Kinross Canada to the Lender to complete and endorse Drafts in
accordance with such information as set out above and (b) the request of Kinross
Canada to the Lender to accept such Drafts and deliver the same against payment
as set out in the instructions. Kinross Canada acknowledges that the Lender
shall not be obligated to accept any such Drafts except in accordance with the
provisions of the Credit Agreement.
The Lender shall be and it is hereby authorized to act on behalf of
Kinross Canada upon and in compliance with instructions communicated to the
Lender as provided herein if the Lender reasonably believes them to be genuine.
Kinross Canada agrees to indemnify the Lender and its directors,
officers, employees, affiliates and agents and to hold it and them harmless from
and against any loss, liability, expense or claim or any kind or nature
whatsoever incurred by any of them as a result of any action or inaction in any
way relating to or arising out of this Power of Attorney or the acts
contemplated hereby, provided that this indemnity shall not apply to any such
loss, liability, expense or claim which result from the negligence or wilful
misconduct of the Lender or any of its directors, officers, employees,
affiliates or agents or for the Lender or its directors, officers, employees,
affiliates or agents failing to use the same standard of care in the custody of
such Drafts as the Lender uses in the custody of its own property of a similar
nature.
The Power of Attorney may be revoked at any time upon not less than five
Banking Days' written notice served upon the Lender, provided that no such
revocation shall reduce, limit or otherwise affect the obligations of Kinross
Canada in respect of any Draft executed, completed, endorsed, discounted and/or
delivered in accordance herewith prior to the time at which such revocation
becomes effective.
This Power of Attorney is in addition to and not in substitution for any
agreement to which the Lender and Kinross Canada are parties. In the event of a
conflict between the provisions of this Power of Attorney and the Credit
Agreement, the Credit Agreement shall prevail. Capitalized terms used and not
defined herein shall have the meanings given to them in the Credit Agreement.
This Power of Attorney shall be governed in all respects by the laws of
the Province of Ontario and the laws of Canada applicable therein and each of
Kinross Canada and the Lender hereby irrevocably attorns to the non-exclusive
jurisdiction of the courts of such jurisdiction in respect of all matters
arising out of this Power of Attorney.
129
M - 3
DATED this ____________ day of ___________________, ________.
KINROSS GOLD CORPORATION
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
130
SCHEDULE N
LOCATION OF TANGIBLE PERSONAL PROPERTY
[TO BE ADDED]
131
SCHEDULE O
FORT KNOX DEPOSIT
LEGAL DESCRIPTIONS
[TO BE ADDED]
132
SCHEDULE P
RYAN LODE DEPOSIT
LEGAL DESCRIPTIONS
[TO BE ADDED]
133
SCHEDULE Q
TRUE NORTH DEPOSIT
LEGAL DESCRIPTIONS
[TO BE ADDED]
134
FIRST AMENDING AGREEMENT
THIS AGREEMENT made as of the 8th day of March, 2000.
BETWEEN:
THE BANK OF NOVA SCOTIA, a Canadian chartered bank
(herein, in its capacity as administrative agent of the Lenders,
called the "Administrative Agent")
- and -
THE BANK OF NOVA SCOTIA and such other financial institutions to
whom The Bank of Nova Scotia or its permitted assigns may from
time to time assign an undivided interest in the Loan Documents
and who agree to be bound by the terms of the Credit Agreement as
a Lender (including the Issuing Lender)
(herein collectively called the "Lenders" and individually called
a "Lender")
- and -
KINROSS GOLD CORPORATION, a corporation incorporated under the
laws of the Province of Ontario
(herein called "Kinross Canada")
- and -
KINROSS GOLD U.S.A., INC., a corporation incorporated under the
laws of the State of Nevada
(herein called "Kinross U.S.A.")
- and -
FAIRBANKS GOLD MINING, INC., a corporation incorporated under the
laws of the State of Delaware
(herein called "Fairbanks U.S.")
135
- 2 -
- and -
KINAM GOLD INC., a corporation incorporated under the laws of
the State of Delaware
(herein called "Kinam U.S.")
- and -
FAIRBANKS GOLD LTD., a corporation incorporated under the
laws of the Province of British Columbia
(herein called "Fairbanks Canada")
- and -
KINAM REFUGIO INC., a corporation incorporated under the laws
of the State of Delaware
(herein called "Kinam Refugio")
- and -
LA TEKO RESOURCES INC., a corporation incorporated under
the laws of the State of Nevada
(herein called "Teko Inc.")
- and -
LA TEKO RESOURCES LTD., a corporation incorporated under
the laws of the Province of British Columbia
(herein called "Teko Ltd.")
WHEREAS the Borrowers, the Lenders and the Agent entered into a
credit agreement made as of March 8, 2000 pursuant to which the Lenders
established a reducing revolving term credit facility in favour of the Borrowers
(herein called the "Credit Agreement");
136
- 3 -
AND WHEREAS the Borrowers, Kinam U.S., Fairbanks Canada, Kinam
Refugio, Teko Inc. and Teko Ltd. entered into the security documents described
in Schedule A hereto (the "Security Documents") in favour of the Administrative
Agent, each of which is defined in such Schedule;
AND WHEREAS the parties hereto wish to amend provisions of the
Credit Agreement and the Security Documents;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of
the mutual covenants and agreements contained herein, the parties covenant and
agree as follows:
ARTICLE 1
DEFINED TERMS
1.01 CAPITALIZED TERMS. All capitalized terms which are used herein without
being specifically defined herein shall have the meaning ascribed thereto in the
Credit Agreement as amended hereby.
ARTICLE 2
AMENDMENTS
2.01 GENERAL RULE. Subject to the terms and conditions herein contained, each of
the Credit Agreement and the Security Documents 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 and the Security
Documents, respectively.
2.02 AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.01 of the Credit Agreement is hereby amended by:
(i) changing "Fee Agreement" to "Fee Letter" in the definition
of Borrower Documents;
(ii) inserting the phrase "and the Hedging Obligations" after
the phrase "Secured Obligations" in the definition of each
of Exposure, Fairbanks U.S. Investment Account Pledge
Agreement, Fairbanks U.S. Pledge and Security Agreement,
Kinross Canada Investment Account Pledge Agreement,
Kinross U.S.A. Investment Account Pledge Agreement and
Sinking Fund Account Pledge
137
- 4 -
Agreement, in the sixth line of the definition of Fort
Knox Deposit Trust Deed and the sixth line of the
definition of True North Deposit Trust Deed;
(iii) deleting the phrase "to the extent it relates to the
Secured Obligations" in the definition of each of
Fairbanks Canada Pledge Agreement, Fort Knox Deposit Trust
Deed, Investment Account, Kinam Refugio Investment Account
Pledge Agreement, Kinam U.S. Investment Account Pledge
Agreement, Kinam U.S. Pledge Agreement, Ryan Lode Deposit
Trust Deed, Teko Inc. Investment Account Pledge Agreement,
Teko Ltd. Pledge Agreement and True North Deposit Trust
Deed;
(iv) adding the phrase "gold hedging transaction," immediately
before the phrase "spot or forward foreign exchange
transaction" in the definition of Hedging Agreements;
(v) adding the phrase "gold hedging transaction," immediately
before the phrase "spot or forward foreign exchange
transaction" in the definition of Indebtedness;
(vi) adding at the end of the definition of Loan Documents the
phrase "and, as such term is used in the Fort Knox Deposit
Trust Deed, the Ryan Lode Deposit Trust Deed and the True
North Deposit Trust Deed, also means the Hedging
Agreements";
(vii) adding the phrase "(and, if there is more than one Lender,
at least two Lenders)" immediately after the phrase "such
group of Lenders" in the definition of Majority Lenders;
(viii) placing the definition of Rollover Notice immediately
after the definition of Rolling OCF; and
(ix) adding the following definition thereto immediately after
the definition of Designated Account:
""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
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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 obligations of
such Company to the Lenders."
(b) Section 1.10 of the Credit Agreement is hereby amended by deleting
clause (d) thereof and replacing it with the following:
"(d) in the case of a Letter denominated in U.S. dollars, the
original stated amount thereof (or, if the Letter is
denominated in Canadian dollars, the U.S. Dollar
Equivalent of the original stated amount thereof)."
(c) Section 7.08 of the Credit Agreement is hereby amended by adding the
following at the end thereof:
"If a new Applicable Rate becomes effective during the term of an
outstanding Bankers' Acceptance, BA Rate 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 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
3.08, the amount of such underpayment. In the event of any
overpayment, the amount of such
139
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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."
(d) Section 8.06 of the Credit Agreement is hereby amended by adding the
following at the end thereof:
"This Section 8.06 shall not apply with respect to any payment
made hereunder or under any other Loan Document by Kinross Canada
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)."
(e) Section 9.04 of the Credit Agreement is hereby amended by adding the
following at the end thereof:
"Each such prepayment shall first be applied to prepay
outstanding Prime Rate Loans, Base Rate Canada Loans and Base
Rate New York Loans as selected by the Borrowers and, to the
extent that the amount of such prepayment exceeds the aggregate
amount of credit outstanding by way of such Loans which have been
prepaid, shall then be deposited by the Administrative Agent in a
segregated account and held in trust for the Lenders to be
applied to repay outstanding BA Rate Loans or LIBO 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."
(f) Section 9.06(d) of the Credit Agreement is hereby amended by adding
the following at the end thereof:
"or consents to such assignment pursuant to Section 15.05(c)"
(g) Section 9.09 of the Credit Agreement is hereby deleted and replaced
with the following:
""9.09 REPAYMENTS OF CREDIT EXCESS. The Borrowers shall repay to
the Lenders on demand the amount of any Credit Excess. Each such
repayment shall first be applied to repay outstanding Prime
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Rate Loans, Base Rate Canada Loans and Base Rate New York Loans
as selected by the Borrowers 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 Lenders to be applied to repay
outstanding BA Rate Loans or LIBO 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."
(h) Section 11.01(h) of the Credit Agreement is hereby amended by
inserting after the phrase "Administrative Agent" the phrase "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)."
(i) Section 11.02 of the Credit Agreement is hereby amended by adding
the following at the end thereof:
"(j) DISTRIBUTIONS. The Borrowers shall not, and shall not
suffer or permit the Restricted Subsidiaries to, make any
Distribution (except to another Company) for so long as
any Default has occurred and is continuing or if any
Default would arise immediately after the making of any
such Distribution.
(k) INVESTMENTS. The Borrowers shall not, and shall not suffer
or permit any Restricted Subsidiary to, make an investment
in any other entity (other than another Company), directly
or through a series of related transactions, by way of
equity investment, loan or otherwise, for so long as any
Default has occurred and is continuing or if any Default
would arise immediately after the making of any such
investment."
(j) Section 12.02(b) of the Credit Agreement is hereby amended by
inserting the phrase "and the Hedging Obligations" after the phrase "Secured
Obligations".
(k) Section 12.04 of the Credit Agreement is hereby amended by changing
"12.02(b) to (r)" to "12.02(b) to (p)" in the fifth line thereof.
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- 8 -
(l) Section 14.19 of the Credit Agreement is hereby amended by deleting
the last sentence thereof and replacing it with the following:
"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) of the Individual
Commitments of such Lender 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 a 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.
(m) Section 14.22(b)(iii) of the Credit Agreement is hereby amended by
inserting the phrase "and the Hedging Obligations" after each of the phrases
"Secured Obligations".
(n) Schedule D to the Credit Agreement is hereby amended by adding Kinam
Canada thereto as a Company and specifying the address of its chief executive
office as 57th Floor, Scotia Plaza, 40 King Street West, Toronto, Ontario M5H
2Y2.
142
- 9 -
2.03 AMENDMENTS TO SECURITY DOCUMENTS. The Security Documents are hereby amended
by:
(a) adding the phrase "and all other Loan Documents" at the end of
Section 1.1(b) of the Ryan Lode Deposit Trust Deed;
(b) deleting the phrase "insofar as it relates to the Secured
Obligations" from the definition of Obligations in Section 1.01
of the Kinam U.S. Pledge Agreement;
(c) deleting the phrase "to the extent to it relates to the Secured
Obligations" from Section 3 of each of the Teko Inc. Investment
Account Pledge Agreement, the Kinam U.S. Investment Account
Pledge Agreement and the Kinam Refugio Investment Account Pledge
Agreement; and
(d) adding the phrase "and the Hedging Obligations" after the phrase
"Secured Obligations" in Section 3 of each of the Sinking Fund
Account Pledge Agreement, the Kinross Canada Investment Account
Pledge Agreement, the Kinross U.S.A. Investment Account Pledge
Agreement and the Fairbanks U.S. Investment Account Pledge
Agreement, in the definition of Obligations in Section 1.01 of
each of the Fairbanks Canada Pledge Agreement and the Teko Ltd.
Pledge Agreement and in Section 1.02 of the Fairbanks U.S. Pledge
and Security Agreement.
2.04 DELIVERIES PURSUANT TO CREDIT AGREEMENT. For the purposes of the Credit
Agreement, this agreement and any document or instrument referred to herein
shall be deemed to be delivered pursuant to the Credit Agreement and to be
referred to in the Credit Agreement.
ARTICLE 3
MISCELLANEOUS
3.01 CONTINUING FORCE AND EFFECT. Each of the Credit Agreement and the Security
Documents is and shall continue to be in full force and effect as amended hereby
and is hereby in all respects ratified and confirmed.
3.02 REPRESENTATIONS AND WARRANTIES. The Borrowers hereby represent and warrant
that no Default has occurred and is continuing as of the date hereof or would
arise as a result of this agreement becoming effective.
3.03 GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario.
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3.04 ENUREMENT. This agreement shall enure to the benefit of and shall be
binding upon the parties hereto and their respective successors and permitted
assigns.
3.05 CONFLICT. If any provision of this agreement is inconsistent or conflicts
with any provision of the Credit Agreement or a Security Document, the relevant
provision of this agreement shall prevail and be paramount.
IN WITNESS WHEREOF the parties hereto have executed and delivered this
agreement on the date first above written.
THE BANK OF NOVA SCOTIA, AS AGENT
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, AS LENDER
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
144
- 11 -
KINROSS GOLD CORPORATION
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
KINROSS GOLD U.S.A., INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
FAIRBANKS GOLD MINING, INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
145
- 12 -
KINAM GOLD INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
FAIRBANKS GOLD LTD.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
KINAM REFUGIO INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
146
- 13 -
LA TEKO RESOURCES INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
LA TEKO RESOURCES LTD.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
147
- 14 -
The undersigned, each being a guarantor of certain obligations of the Borrowers
under the Credit Agreement and the Security Documents, hereby acknowledge, agree
to and consent to the foregoing amendments to the Credit Agreement and the
Security Documents and hereby confirm their obligations under their respective
guarantees delivered pursuant to the Credit Agreement.
DATED as of the 8th day of March, 2000.
KINAM GOLD INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
KINAM (B.C.) LTD.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
148
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FAIRBANKS GOLD LTD.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
MELBA CREEK MINING, INC..
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
KINAM REFUGIO INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
149
- 16 -
LT ACQUISITION INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
LA TEKO RESOURCES INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
LA TEKO RESOURCES LTD.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
150
SCHEDULE A
SECURITY DOCUMENTS
1. Sinking Fund Account Pledge Agreement dated March 8, 2000 of Kinross
Canada in favour of the Administrative Agent ("Sinking Fund Account
Pledge Agreement")
2. Investment Account Pledge Agreement dated March 8, 2000 of Kinross
Canada in favour of the Administrative Agent ("Kinross Canada Investment
Account Pledge Agreement")
3. Investment Account Pledge Agreement dated March 8, 2000 of Kinross
U.S.A. in favour of the Administrative Agent ("Kinross U.S.A. Investment
Account Pledge Agreement")
4. Investment Account Pledge Agreement dated March 8, 2000 of Fairbanks
U.S. in favour of the Administrative Agent ("Fairbanks U.S. Investment
Account Pledge Agreement")
5. Pledge and Security Agreement dated March 8, 2000 of Fairbanks U.S. in
favour of the Administrative Agent ("Fairbanks U.S. Pledge and Security
Agreement")
6. Investment Account Pledge Agreement dated March 8, 2000 of Kinam U.S. in
favour of the Administrative Agent ("Kinam U.S. Investment Account
Pledge Agreement")
7. Share Pledge Agreement dated March 8, 2000 of Kinam U.S. in favour of
the Administrative Agent ("Kinam U.S. Pledge Agreement")
8. Share Pledge Agreement dated March 8, 2000 of Fairbanks Canada in favour
of the Administrative Agent ("Fairbanks Canada Pledge Agreement")
9. Investment Account Pledge Agreement dated March 8, 2000 of Kinam Refugio
in favour of the Administrative Agent ("Kinam Refugio Investment Account
Pledge Agreement")
10. Investment Account Pledge Agreement dated March 8, 2000 of Teko Inc. in
favour of the Administrative Agent ("Teko Inc. Investment Account Pledge
Agreement")
11. Share Pledge Agreement dated March 8, 2000 of Teko Ltd. in favour of the
Administrative Agent ("Teko Ltd. Pledge Agreement")
12. Deed of Trust with Power of Sale, Assignment of Production, Security
Agreement, Financing Statement and Fixture Filing Dated March 8, 2000
form Teko Inc. to Fairbanks Title Agency, Inc., Trustee, and the
Administrative Agent, as Beneficiary (the "Ryan Lode Deposit Trust
Deed")
151
SECOND AMENDING AGREEMENT
THIS AGREEMENT made as of the 7th day of February, 2001.
BETWEEN:
THE BANK OF NOVA SCOTIA, a Canadian chartered bank
(herein, in its capacity as administrative agent of the Lenders,
called the "Administrative Agent")
- and -
KINROSS GOLD CORPORATION, a corporation incorporated under the
laws of the Province of Ontario
(herein called "Kinross Canada")
- and -
KINROSS GOLD U.S.A., INC., a corporation incorporated under the
laws of the State of Nevada
(herein called "Kinross U.S.A.")
- and -
FAIRBANKS GOLD MINING, INC., a corporation incorporated under the
laws of the State of Delaware
(herein called "Fairbanks U.S.")
WHEREAS the Borrowers, the Lenders and the Agent entered into a
credit agreement made as of March 8, 2000 pursuant to which the Lenders
established a reducing revolving term credit facility in favour of the
Borrowers, as amended by an agreement made as of March 8, 2000 (collectively,
the "Credit Agreement");
AND WHEREAS the parties hereto wish to amend provisions of the
Credit Agreement;
AND WHEREAS the Administrative Agent has been authorized by the
Majority Lenders to enter into this agreement on behalf of the Lenders;
152
- 2 -
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of
the mutual covenants and agreements contained herein, the parties covenant and
agree as follows:
ARTICLE 1
DEFINED TERMS
1.1 CAPITALIZED TERMS. All capitalized terms which are used herein without being
specifically defined herein shall have the meaning ascribed thereto in the
Credit Agreement as amended hereby.
ARTICLE 2
AMENDMENTS
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 DEFINED TERMS. The definition of "SCHEDULED REDUCTION AMOUNT" is hereby
deleted and replaced by the following:
"SCHEDULED REDUCTION AMOUNT" means, with respect to a particular
Reduction Date, the amount opposite such Reduction Date as set forth
below:
SCHEDULED
REDUCTION DATE REDUCTION DATE
-------------- --------------
June 30, 2000 $10,000,000
December 31, 2000 $10,000,000
February 28, 2001 $20,000,000
January 2, 2002 $20,000,000
June 30, 2002 $20,000,000
provided, however, that the Scheduled Reduction Amounts shall be subject
to adjustment as provided in the definition of "Reduction Amount".
2.3 FINANCIAL REPORTING. Section 11.01(a)(v) of the Credit Agreement is hereby
amended by deleting the reference to "the Administrative Agent; and" and
replacing it with the phrase "the
153
- 3 -
Administrative Agent. The capital expenditures and exploration component of each
such budget shall require the written approval of the Majority Lenders; and".
2.4 TANGIBLE NET WORTH. Section 11.01(o)(i) of the Credit Agreement is hereby
amended, effective as of December 31, 2000, by deleting the reference therein to
"U.S. $475,000,000" and replacing it with a reference to "U.S. $335,000,000".
2.5 AGGREGATE CASH BALANCES. As of June 30, 2001 (provided that no Credit Excess
exists after the close of business on such date and the Borrower is in full
compliance with Section 11.01(v)), Section 11.01(r) of the Credit Agreement
shall be deleted and replaced with the following:
"(r) AGGREGATE CASH BALANCES.
(i) The Borrowers shall, and shall cause the Restricted
Subsidiaries to, as at the last day of the Fiscal Quarter
ending March 31, 2001 and as at the last day of each
subsequent Fiscal Quarter up to and including the Fiscal
Quarter ending March 31, 2002, maintain aggregate cash
balances of the Companies in the Investment Accounts (in
all cases not subject to a Lien other than in favour of
the Administrative Agent) which exceed U.S. $15,000,000.
The Borrowers shall, and shall cause the Restricted
Subsidiaries to, as at the last day of each Fiscal Quarter
thereafter, maintain aggregate cash balances of the
Companies in the Investment Accounts (in all cases not
subject to a Lien other than in favour of the
Administrative Agent) which exceed U.S. $5,000,000. The
Borrowers shall, and shall cause the Restricted
Subsidiaries to, maintain aggregate cash balances in the
Investment Accounts for the entirety of the Fiscal Quarter
immediately following the last day of the preceding Fiscal
Quarter in an aggregate amount in excess of the aggregate
cash balances as at such last day unless such cash
balances are required to fund normal course expenses as
set out in the most recent budget provided by the
Borrowers to the Administrative Agent.
(ii) The Borrowers shall maintain or cause to be maintained, as
at the last day of each of the Fiscal Quarters ending
March 31, 2001, June 30, 2001 and September 30, 2001,
aggregate cash balances, as would be reported on the
consolidated balance sheet of the Canadian Borrower in
accordance with generally accepted accounting principles,
which exceed U.S. $30,000,000.
2.6 DISTRIBUTIONS. Section 11.02(j) of the Credit Agreement is hereby deleted
and replaced with the following:
154
- 4 -
"(j) DISTRIBUTIONS. Except as set forth in the following sentence, the
Borrowers shall not, and shall not suffer or permit the
Restricted Subsidiaries to, make any Distribution (except to
another Company). The Borrower may make the following
Distributions:
(i) scheduled payments of interest with respect to any
Indebtedness of a Company which is subordinated to the
obligations of such Company to the Lenders;
(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 exist as
of the date hereof; and
(iii) 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 exist as of 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."
2.7 DELIVERIES PURSUANT TO CREDIT AGREEMENT. For the purposes of the Credit
Agreement, this agreement and any document or instrument referred to herein
shall be deemed to be delivered pursuant to the Credit Agreement and to be
referred to in the Credit Agreement.
ARTICLE 3
CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT
3.1 CONDITIONS PRECEDENT. This agreement shall not become effective until the
following conditions precedent are fulfilled:
(i) each of Kinam Gold Inc., Kinam (B.C.) Ltd., Fairbanks Gold Ltd.,
Melba Creek Mining, Inc. and Kinam Refugio Inc. has consented to
the terms of this agreement, in a consent in form and substance
satisfactory to the Bank; and
(ii) the Administrative Agent on behalf of the Lenders has received
from the Borrower an amendment fee of U.S. $90,000.
155
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ARTICLE 4
MISCELLANEOUS
4.1 CONTINUING FORCE AND EFFECT. The Credit Agreement is and shall continue to
be in full force and effect as amended hereby and is hereby in all respects
ratified and confirmed.
4.2 REPRESENTATIONS AND WARRANTIES. The Borrowers hereby represent and warrant
that no Default has occurred and is continuing as of the date hereof or would
arise as a result of this agreement becoming effective.
4.3 GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario.
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 CONFLICT. If any provision of this agreement is inconsistent or conflicts
with any provision of the Credit Agreement, the relevant provision of this
agreement shall prevail and be paramount.
156
- 6 -
IN WITNESS WHEREOF the parties hereto have executed and delivered
this agreement on the date first above written.
THE BANK OF NOVA SCOTIA, AS AGENT
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
KINROSS GOLD CORPORATION
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
KINROSS GOLD U.S.A., INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
157
- 7 -
FAIRBANKS GOLD MINING, INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
The undersigned, each being a guarantor of certain obligations of the Borrowers
under, inter alia, the Credit Agreement, hereby acknowledge, agree to and
consent to the foregoing amendments to the Credit Agreement and hereby confirm
their obligations under their respective guarantees delivered pursuant to the
Credit Agreement.
DATED as of the 7th day of February, 2001.
KINAM GOLD INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
158
KINAM (B.C.) LTD.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
FAIRBANKS GOLD LTD.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
MELBA CREEK MINING, INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title:
159
- 8 -
KINAM REFUGIO INC.
Per: ___________________________________
Name:
Title:
Per: ___________________________________
Name:
Title: