Form 20-F o
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Form 40-F x
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Exhibit Number
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Description of Exhibit
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99.1
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Credit Agreement dated December 17, 2012
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JAGUAR MINING INC.
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Date: February 1, 2013
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By:
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/s/ David M. Petroff
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Name: David M. Petroff
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Title: President and Chief Executive Officer
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ARTICLE 1 INTERPRETATION
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1
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1.01
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Definitions
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1
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1.02
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References to Specific Terms
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21
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1.03
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Headings
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22
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1.04
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Internal References
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22
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1.05
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Number and Gender
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22
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1.06
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Calculation of Time
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22
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1.07
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Construction of Terms
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22
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1.08
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English Language Version Governs
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22
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1.09
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Exhibits
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22
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ARTICLE 2 THE CREDIT FACILITIES
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23
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2.01
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Credit Facility
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23
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2.02
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Purpose of Credit Facility
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23
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2.03
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Non-Revolving Nature of the Credit Facility
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23
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2.04
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Advances
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23
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2.05
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Lender’s Obligations for Advances
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23
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2.06
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Irrevocability
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23
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ARTICLE 3 DISBURSEMENT CONDITIONS
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24
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3.01
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Conditions Precedent to the Initial Advance
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24
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3.02
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Condition Precedent to Subsequent Advances
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26
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3.03
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Waiver
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26
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3.04
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Failure to Advance
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27
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ARTICLE 4 PAYMENTS OF INTEREST AND FEES
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27
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4.01
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Interest on the Advance
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27
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4.02
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General Interest Rules
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27
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4.03
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Maximum Interest Rate
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27
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4.04
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Overdue Principal and Interest Obligations
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28
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4.05
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Standby Fees
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28
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4.06
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Upfront Fees
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28
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4.07
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Advance Fees
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29
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ARTICLE 5 REPAYMENTS
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30
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5.01
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Mandatory Repayment of Principal
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30
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5.02
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Voluntary Repayments
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30
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5.03
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Mandatory Repayments on Additional Equity Financings
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30
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5.04
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Mandatory Repayment on Dispositions
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30
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5.05
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Mandatory Repayments from Proceeds of Insurance
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30
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5.06
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Place of Payment
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30
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5.07
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Account of Record
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31
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ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE BORROWER
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31
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6.01
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Representations and Warranties
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31
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6.02
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Existence and Qualification
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31
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6.03
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Power and Authority
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31
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6.04
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Execution, Delivery
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32
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6.05
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Credit Documents Comply with Applicable Law, Organizational Documents and Contractual Obligations
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32
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6.06
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Consent Respecting Credit Documents
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32
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6.07
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Enforceable Obligations
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32
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6.08
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Taxes and Tax Returns
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32
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6.09
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Accounts
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33
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6.10
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Accounts Receivable
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33
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6.11
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Judgments, Etc.
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33
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6.12
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Absence of Litigation
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33
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6.13
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Debt
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34
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6.14
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Non Arm’s Length Transactions
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34
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6.15
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Ownership
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34
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6.16
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Insurance
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35
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6.17
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Licensors, Suppliers, Distributors and Customers
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35
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6.18
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No Employee Disputes
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36
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6.19
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Labour Relations
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36
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6.20
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Compliance with Law
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36
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6.21
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No Event of Default or Pending Event of Default
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36
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6.22
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Corporate Structure
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37
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6.23
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Relevant Jurisdictions
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37
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6.24
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Computer Software
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37
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6.25
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Intellectual Property Rights
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38
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6.26
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Contracts and Licences
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38
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6.27
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Fiscal Year
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38
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6.28
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Financial Information
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39
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6.29
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No Material Adverse Effect
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39
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6.30
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Environmental
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39
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6.31
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Employee Welfare and Pension Plans
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40
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6.32
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Powers-of-Attorney
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40
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6.33
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Full Disclosure
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40
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6.34
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Issued Shares
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40
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ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF THE LENDER
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41
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7.01
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Representations and Warranties
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41
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7.02
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Accredited Investor
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41
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7.03
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No Offering Document
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42
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7.04
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Not a Shareholder
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42
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ARTICLE 8 COVENANTS
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42
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8.01
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Covenants
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42
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8.02
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Conduct of Business, Maintenance of Existence, Compliance with Law
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42
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8.03
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Access to Information
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42
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8.04
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Obligations and Taxes
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43
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8.05
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Use of Credit Facilities
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43
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8.06
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Insurance
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43
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8.07
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Notices
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44
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8.08
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Environmental Compliance
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44
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8.09
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Maintenance of Property
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45
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8.10
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Landlord Consents and Non-Disturbance Agreements
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45
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8.11
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Consents re Material Contracts
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46
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8.12
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Pension Plans
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46
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8.13
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Notification of Changes to Schedules of the Disclosure Letter
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46
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8.14
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Quarterly Reports
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46
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8.15
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Annual Reports
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46
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8.16
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Annual Business Plan
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47
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8.17
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Other Information
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47
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8.18
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Disposition of Property
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47
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8.19
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No Consolidation, Amalgamation, etc.
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47
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8.20
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No Change of Name
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48
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8.21
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No Debt
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48
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8.22
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No Investments
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48
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8.23
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No Financial Assistance
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48
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8.24
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No Distributions
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48
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8.25
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No Encumbrances
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49
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8.26
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No Change to Year End
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49
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8.27
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No Continuance
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49
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8.28
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Location of Assets in Other Jurisdictions
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49
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8.29
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Restrictions on Business Activities
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49
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8.30
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Financial Instruments
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49
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8.31
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Amendments to Organizational Documents
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49
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8.32
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Amendments to Other Material Contracts and Material Licences
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50
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8.33
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No New Subsidiaries
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50
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8.34
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Accounts
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50
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8.35
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Mineral Rights
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50
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8.36
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Issued Shares
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51
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8.37
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Non-Arm’s Length Transactions
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52
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8.38
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Prepayment of Other Debt
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52
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ARTICLE 9 SECURITY
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53
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9.01
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Form of Security
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53
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9.02
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After Acquired Property and Further Assurances
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54
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9.03
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Registration
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55
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9.04
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Release of Security
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55
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ARTICLE 10 DEFAULT
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55
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10.01
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Events of Default
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55
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10.02
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Acceleration and Termination of Rights
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57
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10.03
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Remedies Cumulative
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58
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10.04
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Saving
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58
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10.05
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Perform Obligations
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58
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10.06
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Third Parties
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58
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10.07
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Set-Off or Compensation
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58
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10.08
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Application of Payments
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59
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ARTICLE 11 COSTS, EXPENSES AND INDEMNIFICATION
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59
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11.01
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Costs and Expenses
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59
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11.02
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Specific Third Party Claim Indemnification
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60
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ARTICLE 12 TAXES, CHANGE OF CIRCUMSTANCES
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61
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12.01
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Change in Law
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61
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12.02
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Taxes
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62
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ARTICLE 13 SUCCESSORS AND ASSIGNS AND ADDITIONAL LENDERS
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63
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13.01
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Binding Effect
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63
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13.02
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Assignment
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63
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13.03
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Participations
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65
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ARTICLE 14 EXCHANGE AND CONFIDENTIALITY OF INFORMATION
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65
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14.01
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Confidentiality and Disclosure of Information
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65
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ARTICLE 15 GENERAL PROVISIONS
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66
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15.01
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Entire Agreement
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66
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15.02
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Further Assurances
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66
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15.03
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Amendment
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66
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15.04
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Conflict of Terms
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66
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15.05
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No Partnership
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67
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15.06
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Notice
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67
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15.07
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Remedies Cumulative
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68
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15.08
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Non-Merger
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68
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15.09
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Survival
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68
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15.10
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Severability
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68
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15.11
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Waiver
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68
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15.12
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Governing Law
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68
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15.13
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Submission to Jurisdiction
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69
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15.14
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Judgment Currency
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69
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15.15
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Waiver of Jury Trial
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69
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15.16
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Counterparts
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70
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15.17
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Effective Date
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70
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Exhibit 1
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Repayment Notice
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3
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Exhibit 3
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Notice of Request for Advance
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4
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Exhibit 4
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Security Not Required for the Initial Advance
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5
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1.01
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Definitions
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(a)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #000107044864 dated August 20, 2012 between Banco Bradesco S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(b)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #000101172414 dated November 25, 2011 between Banco Bradesco S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(c)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #000101172415 dated November 25, 2011 between Banco Bradesco S.A. and MTL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(d)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #000103559853 dated March 14, 2012 between Banco Bradesco S.A. and MTL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(e)
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the Export Financing Note (Nota de Crédito à Exportação) #081001795 issued by MSOL in favour of Banco Bradesco S.A. on August 26, 2010, as such certificate may be amended, revised, replaced, supplemented or restated from time to time;
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(f)
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the Financing Agreement (Cédula de Crédito Bancário - Finame) #0758455-5 dated June 2, 2010 between Banco Bradesco S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(g)
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the Financing Agreement (Cédula de Crédito Bancário - Finame) #0759536-0 dated June 11, 2010 between Banco Bradesco S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time; and
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(h)
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the Derivatives Management Agreement (Instrumento Particular de Gerência de Derivativos) dated October 2, 2012 between Banco Bradesco S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(a)
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indebtedness in respect of borrowed money, including, for greater certainty, principal, interest, fees and expenses relating thereto, or for the deferred purchase price of Property or services, or an indebtedness which is evidenced by a note, bond, debenture or any other similar instrument;
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(b)
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a transfer of Property with recourse or with an obligation to repurchase, to the extent of that Person’s liability;
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(c)
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indebtedness secured by any Encumbrance on any of that Person’s Property to the extent attributable to that Person’s respective interest in such Property, even though it has not assumed or become liable for its payment;
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(d)
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the principal component of a Capital Lease obligation;
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(e)
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reimbursement obligations arising in connection with bankers’ acceptances, letters of credit or letters of guarantee;
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(f)
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a Contingent Obligation to the extent that the primary obligation guaranteed is not otherwise classified as a liability on that Person’s consolidated balance sheet; or
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(g)
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the aggregate amount at which any shares in that Person’s capital which are redeemable or retractable at the option of the holder of such shares (except where the holder is that Person) may be redeemed or retracted;
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(h)
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reserves for deferred taxes or general contingencies; or
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(i)
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any trade account payable and accrued liability (including deferred revenues and taxes payable) incurred in the ordinary course of business, except to the extent any such trade account payable or accrued liability remains unpaid and undisputed for more than the greater of 120 days after the date of the invoice received in relation thereto and the time period within which an Obligor has customarily paid such trade account payable and accrued liability or a responsible person in the jurisdiction in which such Obligor carries on business customary would pay such trade account payable and accrued liability;
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(a)
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of any dividends on any of its Equity Interests;
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(b)
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on account of, or for the purpose of setting apart any property for a sinking or other analogous fund for, the purchase, redemption, retirement or other acquisition of any of its Equity Interests;
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(c)
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of any other distribution in respect of any of its Equity Interests of, or on account of, profit participating notes or similar instruments; or
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(d)
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of any management, consulting or similar fee or any bonus payment or comparable payment, or by way of gift or other gratuity, to any Affiliate of such Person or to any director or officer of such Person or Affiliate of such Person, or to any Person not dealing at Arm’s Length with such first Person, Affiliate of such Person, or any director or officer of the foregoing;
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(a)
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acquisition of any Equity Interests of such Person; or
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(b)
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acquisition, by purchase or otherwise, of all or substantially all of the business, assets or stock or other evidence of beneficial ownership of that Person;
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(a)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #109826269 dated December 14, 2012 between Itaú BBA S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(b)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #103546478 dated March 14, 2012 between Itaú BBA S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(c)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #107271320 dated August 29, 2012 between Itaú BBA S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(d)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #105306243 dated June 5, 2012 between Itaú BBA S.A. and MSOL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(e)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #107272078 dated August 29, 2012 between Itaú BBA S.A. and MTL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(f)
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the Advance Against Exchange Agreement (Adiantamento Contra Câmbio) #109826333 dated December 14, 2012 between Itaú BBA S.A. and MTL, as such agreement may be amended, revised, replaced, supplemented or restated from time to time;
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(g)
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the Export Financing Certificate (Cédula de Crédito à Exportação) #5709100 issued by MSOL in favour of Itaú S.A. on May 6, 2010, as such certificate may be amended, revised, replaced, supplemented or restated from time to time;
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(h)
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the Export Financing Certificate (Cédula de Crédito à Exportação) #6603104 issued by MSOL in favour of Itaú S.A. on July 22, 2010, as such certificate may be amended, revised, replaced, supplemented or restated from time to time;
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(i)
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the Export Financing Certificate (Cédula de Crédito à Exportação) #5707104 issued by MTL in favour of Itaú S.A. on May 6, 2010, as such certificate may be amended, revised, replaced, supplemented or restated from time to time;
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(j)
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the Export Financing Certificate (Cédula de Crédito à Exportação) #8089104 issued by MSOL in favour of Itaú S.A. on November 22, 2010, as such certificate may be amended, revised, replaced, supplemented or restated from time to time;
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(k)
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the Export Financing Certificate (Cédula de Crédito à Exportação) #7221104 issued by MSOL in favour of Itaú S.A. on September 8, 2010, as such certificate may be amended, revised, replaced, supplemented or restated from time to time; and
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(l)
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the Agreement for Execution of Derivatives Operations (Convênio para Celebração de Operações de Derivativos) #5023 between Itaú BBA S.A. and MSOL dated October 9, 2012, as such convention may be amended, revised, replaced, supplemented or restated from time to time;
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(a)
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the business, operations, properties, assets and condition (financial or otherwise) of the Obligors, taken as a whole;
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(b)
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the legality, validity or enforceability of any of this Agreement or the Security, including the validity, enforceability, perfection or priority of any Encumbrance created or intended to be created under any of the Security; or
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(c)
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the right, entitlement or ability of any Obligor to pay or perform any of its Obligations under any of the Credit Documents which would reasonably be considered material having regard to the Obligors as a whole;
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(a)
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a “pension plan” or “plan” which is subject to the Pension Benefits Act (Ontario), the ITA, or applicable pension benefits legislation in any other Canadian jurisdiction which is applicable to an Obligor’s employees working in Canada; or
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(b)
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any foreign employer sponsored or established pension plan or similar arrangement applicable to an Obligor’s employees in countries other than Canada, but
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(c)
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excluding all such plans mandated and administered by a Government Authority;
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(a)
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Debt under this Agreement;
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(b)
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Debt secured by PMSIs created, incurred or assumed after the date of this Agreement to finance the acquisition of Property;
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(c)
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the Debt listed in Schedule 1 of the Disclosure Letter, or the renewal, extension or replacement thereof provided any such renewal does not increase the principal amount owing thereunder beyond that listed in Schedule 1 of the Disclosure Letter;
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(d)
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the Permitted Inter-Corporate Debt;
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(e)
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Debt not exceeding $100,000 (or the equivalent in Brazilian reais) in any individual instance or $500,000 (or the equivalent in Brazilian reais) in the aggregate for all Obligors provided there are no Encumbrances in support of such Debt;
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(f)
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Debt comprised of Financial Assistance permitted by this Agreement; and
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(g)
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Debt consented to in writing by the Lender from time to time;
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(a)
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all cash amounts, equity distributions and dividends paid by an Obligor to another Obligor;
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(b)
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salaries, fees and bonuses payable in cash or Equity Interests of the Borrower for senior management, employees and consultants paid either (1) in the ordinary course of business; (2) paid pursuant to an employment agreement; or (3) as the same may have been approved by the Borrower’s board of directors or any compensation policy adopted by the Borrower’s board of directors;
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(c)
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routine employee benefits consistent with past practice;
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(d)
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director fees and expenses payable in cash or Equity Interests of the Borrower;
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(e)
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fees and expenses, determined on an Arm’s Length basis, for services provided by an Affiliate of an Obligor to an Obligor in the ordinary course of business; and
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(f)
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Distributions not exceeding $100,000 (or the equivalent in Brazilian reais) in any individual instance and $500,000 (or the equivalent in Brazilian reais) in the aggregate for all Obligors;
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(a)
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Encumbrances for taxes, rates, assessments or other governmental charges or levies not yet due, or for which instalments have been paid based on reasonable estimates pending final assessments, or if due, the validity of which is being contested diligently and in good faith by appropriate proceedings by that Person;
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(b)
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(i) deemed Encumbrances and trusts arising by operation of Law (ii) or pledges of deposits in connection with workers’ compensation, employment insurance and other social security legislation, in each case, which secure obligations not at the time due or delinquent or, if due or delinquent, the validity of which is being contested diligently and in good faith by the appropriate proceedings by that Person;
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(c)
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Encumbrances under or pursuant to any judgment or award rendered, or claim filed, against that Person, the time for the appeal or petition for rehearing of which shall not have expired, or which is being contested diligently and in good faith by the appropriate proceedings by that Person or which such Person shall diligently and in good faith be prosecuting an appeal or proceeding for review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;
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(d)
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undetermined or inchoate Encumbrances, charges, rights of distress, privileges, statutory Encumbrances, adverse claims or Encumbrances of any nature whatsoever incidental to construction or current operations which have not at such time been filed or exercised, or which relate to obligations not due or payable, or if due or payable, the validity of which is being contested diligently and in good faith by appropriate proceedings by that Person;
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(e)
|
licences, easements, rights-of-way, servitudes or other similar rights in land (including, without limitation, licences, easements, rights-of-way, servitudes and other similar rights in land for railways, sidewalks, public ways, sewers, drains, gas and oil and other pipelines, gas, steam and water mains or electric light and power, or telephone and telegraph conduits, poles, wires and cables) which individually or in the aggregate do not materially impair the use of the affected land for the purpose for which such land is held by that Person, taken as a whole;
|
|
(f)
|
the right reserved to, or vested in, any Governmental Authority under the terms of any lease, licence, concession, franchise, grant or permit acquired by that Person, or under any statutory provision, to terminate any such lease, licence, concession, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof;
|
|
(g)
|
Encumbrances or covenants restricting or prohibiting access to or from lands abutting on controlled access highways or covenants affecting the use to which lands may be put; provided, however, such liens or covenants do not materially impair the use of the lands in the operations of that Person;
|
|
(h)
|
any carrier’s, warehouseman’s, builder’s, mechanic’s, garageman’s, labourer’s or materialman’s Encumbrances or other similar Encumbrances arising in the ordinary course of business or out of the construction or improvement of any land or arising out of the furnishing of materials or supplies, provided that such Encumbrances secure monies not at the time due or delinquent or, if due or delinquent, the validity of which is being contested diligently and in good faith by the appropriate proceedings by that Person;
|
|
(i)
|
in respect of any land, any defects or irregularities in the title to such land which are of a minor nature and which, individually or in the aggregate, will not materially impair the use of such land for the purposes for which such land is held by that Person;
|
|
(j)
|
security given by that Person to a public utility or any Governmental Authority when required by such public utility or Governmental Authority in connection with the operations of such Person, all in the ordinary course of its business which individually or in the aggregate do not materially impair its use in the operation of the business of that Person, taken as a whole;
|
|
(k)
|
the Security;
|
|
(l)
|
the Inter-Corporate Security provided the same has been assigned to the Lender pursuant to the Security;
|
|
(m)
|
any operating lease entered into in the ordinary course of business;
|
|
(n)
|
Encumbrances on cash or securities and bankers’ liens, rights of set off and other similar Encumbrances existing solely with respect to such cash and securities on deposit in one or more accounts maintained by that Person, or delivered by that Person to a secured party, granted in the ordinary course of business securing amounts with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements or securing Permitted Hedging Arrangements;
|
|
(o)
|
PMSIs that secure Permitted Debt;
|
|
(p)
|
landlords’ liens or any other rights of distress reserved in or exercisable under any lease of real property for rent and for compliance with the terms of such lease; provided that such lien does not attach generally to all or substantially all of the Property of that Person;
|
|
(q)
|
Encumbrances on cash deposits or securities (other than Equity Interests of an Obligor) provided in the ordinary course of business to secure performance of (i) contracts related to the development or operation of a mine, mining concessions and environmental reclamation obligations, (ii) surety bonds, performance bonds related to the development or operation of a mine and other obligations of a like nature or (iii) leases of real property to which that Person is a party;
|
|
(r)
|
rights and interests created by notice by any department of highways or similar authorities with respect to proposed highways and which do not materially impair the operation of the business of that Person;
|
|
(s)
|
lis pendens that may be registered against any real property or interest therein of that Person in respect of any action or proceeding against that Person or in which it is a defendant but with respect to which action or proceeding, no judgment, award or attachment against that Person has been grated or made and which that Person is defending diligently and in good faith;
|
|
(t)
|
the Encumbrances described in Schedule 2 of the Disclosure Letter;
|
|
(u)
|
any other Encumbrances as agreed to in writing by the Lender; and
|
|
(v)
|
any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any security interest referred to in the preceding subparagraphs (a) to (t) inclusive of this definition, so long as any such extension, renewal or replacement of such security interest is limited to all or any part of the same Property that secured the security interest extended, renewed or replaced (plus improvements on such Property) and the indebtedness or obligation secured thereby is not increased;
|
|
(a)
|
security provided in respect of Permitted Debt described on Schedule 1 of the Disclosure Letter as “Priority Debt” and in the form described therein; and
|
|
(b)
|
those Encumbrances specified in paragraphs (a), (b), (c), (d), (e), (f), (g), (i), (j), (n), (o), (p), (q) and (t) of the definition of Permitted Encumbrances;
|
|
(a)
|
it is created in connection with or for the purpose of the acquisition of such Property;
|
|
(b)
|
it does not at any time encumber any Property other than the Property financed by such Debt and proceeds thereof;
|
|
(c)
|
the amount of Debt secured by it is not increased subsequent to that acquisition; and
|
|
(d)
|
the principal amount of Debt secured by it at no time exceeds (i) 100% of the original purchase price of that Property at the time it was acquired, and for the purposes of this definition the term “acquisition” shall include a Capital Lease, and the term “acquire” shall have a corresponding meaning;
|
|
(a)
|
the protection, preservation or remediation of the natural environment (the air, land, surface water or groundwater);
|
|
(b)
|
solid, gaseous or liquid waste generation, handling, treatment, storage, disposal or transportation;
|
|
(c)
|
occupational or public safety and health; and
|
|
(d)
|
Hazardous Substances;
|
1.02
|
References to Specific Terms
|
|
(a)
|
Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with Applicable Accounting Standards. Unless otherwise provided herein, all financial terms used in this Agreement shall be determined in accordance with Applicable Accounting Standards in effect at the date of such determination. Where the character or amount of any asset or liability or item of revenue or expense is required to be determined, or any consolidation or other computation is required to be made for the purpose of this Agreement, such determination or calculation shall be made in accordance with Applicable Accounting Standards applied on a consistent basis, unless otherwise indicated.
|
|
(b)
|
Currency. Unless specified otherwise, all dollar amounts expressed in this Agreement refer to U.S. Dollars, and the equivalent of all such dollar amounts in Brazilian reais, where applicable, shall be based on a fixed exchange rate of US$1 to R$2.0840.
|
|
(c)
|
“Including.” Where this Agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means “includes without limitation.”
|
|
(d)
|
“Knowledge.” Where any representation, warranty, or other statement in this Agreement, or in any other document delivered under this Agreement, is expressed by an Obligor to be “to its knowledge,” or is otherwise expressed to be limited in scope to facts or matters known to an Obligor or of which an Obligor is aware, it means (a) the current, actual knowledge of directors and officers of such Obligor and (b) the knowledge that would have come to the attention of any of those directors or officers had they duly investigated the facts related to that statement with, and made reasonable inquiries of, those individuals employed by the Obligors which would reasonably be expected to have knowledge of facts related to that statement.
|
|
(e)
|
Statutes, etc. Unless specified otherwise, any reference in this Agreement to a statute includes the regulations, rules, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those regulations, rules, or policies.
|
|
(f)
|
“Permitted Encumbrances.” The inclusion of any reference to “Permitted Encumbrances” in any Credit Document should not be interpreted as an intention on the part of the Lender to subordinate any Encumbrance created by any of the Security to any Permitted Encumbrance.
|
1.03
|
Headings
|
1.04
|
Internal References
|
1.05
|
Number and Gender
|
1.06
|
Calculation of Time
|
1.07
|
Construction of Terms
|
1.08
|
English Language Version Governs
|
1.09
|
Exhibits
|
Exhibit 1
|
-
|
Repayment Notice
|
|
Exhibit 2
|
-
|
Wire Instructions
|
|
Exhibit 3
|
-
|
Notice of Request for Advance
|
|
Exhibit 4
|
-
|
Security Not Required for the Initial Advance
|
2.01
|
Credit Facility
|
2.02
|
Purpose of Credit Facility
|
2.03
|
Non-Revolving Nature of the Credit Facility
|
2.04
|
Advances
|
2.05
|
Lender’s Obligations for Advances
|
2.06
|
Irrevocability
|
3.01
|
Conditions Precedent to the Initial Advance
|
|
(a)
|
receipt by the Lender of the following:
|
|
(i)
|
a duly executed copy of this Agreement;
|
|
(ii)
|
a Notice of Request for Advance delivered in accordance with Section 2.04;
|
|
(iii)
|
certified true copies of the Organizational Documents of each Obligor, the resolutions authorizing the execution, delivery and performance of each Obligor’s respective obligations under the Credit Documents and the transactions contemplated by this Agreement and the Credit Documents (with such documents being in the English language in respect of the Borrower and in the Portuguese language in respect of each other Obligor);
|
|
(iv)
|
certificates of status or good standing, as applicable, for the jurisdiction in which each Obligor is incorporated or exists (with such certificates being in the English language in respect of the Borrower and in the Portuguese language in respect of each other Obligor);
|
|
(v)
|
copies, if any, of all required shareholder, regulatory, governmental, and other approvals, necessary in connection with the execution and delivery of the Credit Documents and the consummation of the transactions contemplated by the Credit Documents, certified by a Senior Officer of each of the Obligors to be true and correct and in full force and effect (with such documents being in the English language in respect of the Borrower and in the Portuguese language in respect of each other Obligor);
|
|
(vi)
|
copies of debt instruments evidencing the Permitted Inter-Corporate Debt (with such instruments subject to Ontario law being in the English language and such instruments subject to Brazilian law being in the Portuguese language);
|
|
(vii)
|
copies of any releases, discharges, subordinations and postponements (in registerable form where appropriate) of all Encumbrances affecting the collateral encumbered by the Security which are not Permitted Encumbrances (with such documents subject to Ontario law being in the English language and such instruments subject to Brazilian law being in the Portuguese language);
|
|
(viii)
|
(x) copies of the duly executed Security (along with, where applicable, certificates representing all certificated shares or other securities pledged, together with an endorsement on the certificates or separate stock powers duly executed in blank in accordance with the requirements of the STA) (with such documents subject to Ontario law being in the English language and such documents subject to Brazilian law being in the Portuguese language), (y) evidence of submission for registration, filing and recording of the Security, and (z) evidence of the due registration, filing and recording of the Security in all applicable offices or places of registration in all Relevant Jurisdictions, save and except for confirmation of registration of the Title Security and the Security listed in Exhibit 4 (with such evidence being in the English language in respect of the Borrower and in the Portuguese language in respect of each other Obligor);
|
|
(ix)
|
currently-dated letters of opinion of Borrower’s Counsel that, collectively, encompass all Obligors, in form and substance satisfactory to Lender, acting reasonably;
|
|
(x)
|
if available, copies of certificates of insurance of the Obligors evidencing insurance, all in accordance with Section 8.06;
|
|
(xi)
|
copies of the Obligors’ latest audited and interim financial statements, pro forma models and capitalization tables;
|
|
(xii)
|
executed copies of all other Credit Documents not specifically referenced in this Section 3.01;
|
|
(xiii)
|
evidence that all required permits in respect of the Operating Projects are in effect; and
|
|
(xiv)
|
copies of the Obligors’ latest updated mining plans, reserve reports and operating budgets for the Operating Projects;
|
|
(b)
|
a currently dated certificate of each of the Obligors certifying that the representations and warranties contained in Article 6 (Representations and Warranties) are true and correct as at the Closing Date;
|
|
(c)
|
the Disclosure Letter;
|
|
(d)
|
payment in full of all amounts of reasonable documented out-of-pocket fees and expenses required, under this Agreement, to be paid on or prior to the Closing Date, with such amounts to be deducted on the Closing Date from the amount held in escrow (the “Escrow Amount”) pursuant to an escrow agreement dated November 1, 2012 between the Lender, the Borrower and Cassels Brock & Blackwell LLP (the “Escrow Agreement”); and
|
|
(e)
|
the non-existence of any continuing Event of Default or Pending Event of Default on the Advance Date, including any Event of Default or Pending Event of Default that would result from making the Advance, and delivery to the Lender of a certificate of a Senior Officer of the Borrower certifying that non-existence;
|
3.02
|
Condition Precedent to Subsequent Advances
|
|
(a)
|
confirmation of the due registration, filing and recording of the Title Security and the Security listed in Exhibit 4, in all applicable offices or places in all Relevant Jurisdictions together with confirmatory legal opinions of Borrower’s Counsel in Brazil in respect thereof; provided that such confirmation by the Borrower and such confirmatory legal opinions of the Borrower's Counsel in Brazil have not already been provided in respect of a prior Advance.
|
|
(b)
|
receipt by the Lender of a Notice of Request for Advance as required under Section 2.04 (Advances);
|
|
(c)
|
the non-existence of any continuing Event of Default or Pending Event of Default on the Advance Date, including any Event of Default or Pending Event of Default that would result from making the Advance, and receipt by the Lender of a certificate of a Senior Officer of the Borrower certifying that non-existence; and
|
|
(d)
|
payment of fees in accordance with Section 4.07.
|
3.03
|
Waiver
|
3.04
|
Failure to Advance
|
4.01
|
Interest on the Advance
|
|
(a)
|
The Borrower shall pay interest on all Advances at a rate per annum equal to 11.0%.
|
|
(b)
|
Interest shall be payable in arrears on each Interest Payment Date. All interest shall accrue day to day for the actual number of days elapsed for the period from and including the date of the Advance to and including the day preceding that Interest Payment Date, and shall be calculated on the principal amount outstanding during that period on the basis of the actual number of days in the relevant calendar year.
|
4.02
|
General Interest Rules
|
4.03
|
Maximum Interest Rate
|
|
(a)
|
In the event that any provision of this Agreement or any other Credit Document would oblige an Obligor to make any payment of interest or any other payment which is construed by a court of competent jurisdiction to be interest in an amount or calculated at a rate which would be prohibited by Law or would result in a receipt by the Lender of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada) or other Applicable Law), then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted nunc pro tunc to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by Law or so result in a receipt by the Lender of interest at a criminal rate, such adjustment to be effected, to the extent necessary as follows:
|
|
(i)
|
firstly, by reducing the amount or rate of interest required to be paid under Section 4.01 of this Agreement; and
|
|
(ii)
|
thereafter by reducing any fees, commissions, premiums and other amounts which would constitute interest for the purposes of Section 347 of the Criminal Code (Canada) or other Applicable Law in such order as the Lender may decide.
|
|
(b)
|
If, notwithstanding the provisions of clause (a) of this Section and after giving effect to all adjustments contemplated thereby, the Lender shall have received an amount in excess of the maximum permitted by such clause, then such excess shall be applied by the Lender to the reduction of the principal balance outstanding and not to the payment of interest, or if such excessive interest exceeds such principal balance, such excess shall be refunded to the Borrower.
|
4.04
|
Overdue Principal and Interest Obligations
|
4.05
|
Standby Fees
|
4.06
|
Upfront Fees
|
|
(a)
|
As consideration for entering into this Credit Agreement and agreeing to make the Advances, the Borrower will deliver to the Lender:
|
|
(i)
|
payment of a fee in the amount of $50,000, and
|
|
(ii)
|
450,000 common shares in the capital of the Borrower, which shares shall be subject to a four month hold period from the date of issuance,
|
|
(b)
|
On the earlier of:
|
|
(i)
|
the date on which the condition in Section 3.02(a) is satisfied, and
|
|
(ii)
|
December 28, 2012,
|
4.07
|
Advance Fees
|
|
(a)
|
pay to the Lender a fee equal to 2% of the amount of the Advance in immediately available funds, and
|
|
(b)
|
subject to obtaining all required stock exchange approvals related thereto, deliver to the Lender, common shares in the capital of the Borrower with an aggregate share price equal to 2% of the amount of the Advance. The price per share to be used for the purpose of calculating the number of shares to be issued hereunder shall be equal to the ten-day volume weighted average price of the Borrower's common shares on the TSX, calculated on the last Business Day before the applicable Advance Date. Such shares shall be subject to a four month hold period from the date of issuance. In the event that the Borrower is unable to obtain all required stock exchange approvals for the issuance of such shares, the Borrower will pay to the Lender, in lieu of delivering such shares to the Lender, a fee equal to 2% of the amount of the Advance to be made on the date such shares were to be issued in immediately available funds.
|
5.01
|
Mandatory Repayment of Principal
|
5.02
|
Voluntary Repayments
|
5.03
|
Mandatory Repayments on Additional Equity Financings
|
5.04
|
Mandatory Repayment on Dispositions
|
5.05
|
Mandatory Repayments from Proceeds of Insurance
|
5.06
|
Place of Payment
|
5.07
|
Account of Record
|
6.01
|
Representations and Warranties
|
6.02
|
Existence and Qualification
|
|
(a)
|
has been duly incorporated, amalgamated, merged or continued, as the case may be, and is validly subsisting under the laws of its jurisdiction of formation, amalgamation, merger or continuance, as the case may be (or in the case of the Obligor which is not a corporation, has been duly created or established as a partnership or other applicable entity and validly exists under and is governed by the laws of the jurisdiction in which it has been created or established); and
|
|
(b)
|
is duly qualified and has all required Material Licenses to carry on its business in each jurisdiction in which the nature of its business requires qualification except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.
|
6.03
|
Power and Authority
|
|
(a)
|
to enter into, and to exercise its rights and perform its obligations under, the Credit Documents to which it is a party; and
|
|
(b)
|
to own its Property and carry on its business as currently conducted.
|
6.04
|
Execution, Delivery
|
6.05
|
Credit Documents Comply with Applicable Law, Organizational Documents and Contractual Obligations
|
6.06
|
Consent Respecting Credit Documents
|
6.07
|
Enforceable Obligations
|
6.08
|
Taxes and Tax Returns
|
6.09
|
Accounts
|
|
(a)
|
chequing, savings, or other accounts at any bank or other financial institution or any other account where money is or may be deposited or maintained with any Person; or
|
|
(b)
|
securities accounts or have any securities entitlements (as those terms are defined in the STA).
|
6.10
|
Accounts Receivable
|
6.11
|
Judgments, Etc.
|
6.12
|
Absence of Litigation
|
6.13
|
Debt
|
6.14
|
Non Arm’s Length Transactions
|
6.15
|
Ownership
|
|
(a)
|
Except as disclosed in Schedule 8 of the Disclosure Letter, it:
|
|
(i)
|
has good and marketable title to, or valid leasehold interests in, all of its real property, surface leases, and other related rights (collectively, “Real Property Rights”);
|
|
(ii)
|
has good and valid title to all of its Mineral Rights; and
|
|
(iii)
|
owns all of its other Property;
|
|
(b)
|
It enjoys peaceful and undisturbed possession of all its Real Property Rights and there is no pending or, to its knowledge, threatened condemnation or expropriation proceeding relating to any such Real Property Rights which would reasonably be expected to have a Material Adverse Effect. All of the Real Property Rights and the structures thereon and other tangible assets owned, leased or used by it in the conduct of its business are:
|
|
(i)
|
insured to the extent, and in a manner customary, in the industry in which the Obligors are engaged;
|
|
(ii)
|
structurally sound with no known material defects;
|
|
(iii)
|
in good operating condition and repair, subject to ordinary wear and tear and casualty;
|
|
(iv)
|
not in need of maintenance or repair except for ordinary, routine maintenance and repair the cost of which would not be material or as a result of casualty;
|
|
(v)
|
sufficient for the operation of its business as presently conducted thereon; and
|
|
(vi)
|
in conformity with all Applicable Law and other requirements (including applicable zoning, environmental, motor vehicle safety, occupational safety and health laws and regulations) relating thereto,
|
|
(c)
|
Except as set out in Schedule 8 of the Disclosure Letter, no Person has any agreement or right to acquire an interest in any of its Property other than in the ordinary course of business.
|
|
(d)
|
Schedule 8 of the Disclosure Letter contains a description of:
|
|
(i)
|
with respect to all Real Property Rights owned by it, the municipal addresses, legal description, the name of the Person which owns such property and a brief description of such property and its use;
|
|
(ii)
|
all Mineral Rights held by it (including the nature of such Mineral Rights);
|
|
(iii)
|
with respect to all Real Property Rights leased by it, the municipal addresses, legal description, the name of the Person which leases such property, the name of the landlord, the term and any renewal rights under the applicable lease and a brief description of such property and its use; and
|
|
(iv)
|
all Real Property not owned or leased by it where its Property may from time to time be stored or located.
|
6.16
|
Insurance
|
6.17
|
Licensors, Suppliers, Distributors and Customers
|
6.18
|
No Employee Disputes
|
6.19
|
Labour Relations
|
|
(a)
|
no material illegal labour practice complaint pending against it or, to its knowledge, threatened against it, and no grievance or judicial proceeding or lawsuit (including collective lawsuits) arising out of or under collective bargaining agreements is so pending against it or, to its knowledge, threatened against it;
|
|
(b)
|
no strike, labour dispute, slowdown or stoppage pending against it, or to its knowledge, threatened against it; and
|
|
(c)
|
to its knowledge, no union organizing activities with respect to its employees,
|
6.20
|
Compliance with Law
|
6.21
|
No Event of Default or Pending Event of Default
|
6.22
|
Corporate Structure
|
|
(a)
|
each such Person's full and correct name (including any French and English forms of name) and the jurisdiction in which it is incorporated or exists;
|
|
(b)
|
each such Person's full address (including postal code or zip code) of its registered office, chief executive office and all places of business and, if different, the address at which its books and records are located, and
|
|
(c)
|
details of the authorized and issued share capital, partnership interests, membership interest or other similar interest owned by, as well as issued by each such Person, with the exception of the Borrower, together with the name of the registered and beneficial owner of all of such issued and outstanding securities.
|
6.23
|
Relevant Jurisdictions
|
|
(a)
|
Its Relevant Jurisdictions are set out in Schedule 14 of the Disclosure Letter.
|
|
(b)
|
Set out in Schedule 14 of the Disclosure Letter is a true, correct and complete list in all material respects of the names and addresses of each warehouseman, processor, packer, or other place at which its Property is stored.
|
6.24
|
Computer Software
|
6.25
|
Intellectual Property Rights
|
|
(a)
|
It owns, or has the legal right to use, all Intellectual Property necessary for it to conduct its business as currently conducted except for those that the failure to own or have such legal right to use would not reasonably be expected to have a Material Adverse Effect. Set out in Schedule 15 of the Disclosure Letter is a list of all material Intellectual Property owned by it, or that it has the right to use.
|
|
(b)
|
Except as provided in Schedule 15 of the Disclosure Letter, no claim has been asserted or is pending by any Person challenging or questioning the use of any such Intellectual Property, or the validity or effectiveness of any such Intellectual Property, nor does it know of any such claim, and to its knowledge, the use of such Intellectual Property by it does not infringe on the rights of any Person, except for such claims and infringements that, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
|
6.26
|
Contracts and Licences
|
|
(a)
|
Schedule 16 of the Disclosure Letter accurately sets out all of its Material Contracts and all of its Material Licences (other than Mineral Rights disclosed in Schedule 8 of the Disclosure Letter).
|
|
(b)
|
A true and complete copy of each such Material Contract and Material Licence has been posted in the electronic data room made available to the Lender as at or prior to the Closing Date and to its knowledge, each such Material Contract and Material Licence to which it is a party or which it was issued is in full force and effect, unamended except as disclosed in Schedule 16 of the Disclosure Letter.
|
|
(c)
|
To its knowledge, no event related to an act or omission of it has occurred and is continuing which would constitute a breach of, or a default under, any Material Contract or Material Licence, where such breach would reasonably be expected to have a Material Adverse Effect.
|
|
(d)
|
It has not received notice from a lender under a Brazilian Bank Loan that such lender may demand repayment of such Brazilian Bank Loan prior to its stated maturity.
|
|
(e)
|
Each Material Contract to which it is a party is binding upon it and, to its knowledge is a binding agreement of each other Person who is a party to the Material Contract.
|
6.27
|
Fiscal Year
|
6.28
|
Financial Information
|
6.29
|
No Material Adverse Effect
|
6.30
|
Environmental
|
|
(a)
|
It is not subject to any administrative, civil or criminal proceeding or known investigation relating to Requirements of Environmental Law and to its knowledge, no such proceeding or investigation is threatened against it.
|
|
(b)
|
All relevant approvals, permits, licenses, registrations and other authorizations required by the Requirements of Environmental Law have been obtained by it in relation to the operation of the Business and its Properties (whether owned, leased or otherwise occupied) and each is valid and in full force, except where the failure to have same would not reasonably be expected to have a Material Adverse Effect. It has complied with all conditions and requirements that have been imposed under such approvals, permits, licenses, registrations and other authorizations, except where the failure to so comply would not be reasonably expected to have a Material Adverse Effect.
|
|
(c)
|
It currently operates the Business and its Properties (whether owned, leased or otherwise occupied) in compliance with the Requirements of Environmental Law, except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect.
|
|
(d)
|
It is actively and diligently using commercially reasonable efforts to plan for future compliance with all Requirements of Environmental Law and all such steps are being completed in a manner consistent with a prudent and responsible operator engaged in a business of a similar nature.
|
|
(e)
|
No Hazardous Substances are or have been stored, disposed of or otherwise used by it in violation of any applicable Requirements of Environmental Law except where any such violation would not reasonably be expected to have a Material Adverse Effect.
|
|
(f)
|
All aboveground and underground storage tanks now or previously located in, on or under any real property now owned or leased by it have been operated, maintained and decommissioned or closed, as applicable, in compliance with applicable Requirements of Environmental Law except when the failure to so comply would not reasonably be expected to have a Material Adverse Effect.
|
|
(g)
|
To its knowledge, no real property or groundwater in, on or under any property now or previously owned or leased by it (i) is or has been contaminated by any Hazardous Substance where the results of such contamination would reasonably be expected to have a Material Adverse Effect, or (ii) except as set out in Schedule 17 of the Disclosure Letter, is named in any list of hazardous waste or contaminated sites maintained under any Requirements of Environmental Law.
|
6.31
|
Employee Welfare and Pension Plans
|
6.32
|
Powers-of-Attorney
|
6.33
|
Full Disclosure
|
6.34
|
Issued Shares
|
|
(a)
|
the currently issued and outstanding common shares of the Borrower are listed and posted for trading on the TSX and the NYSE and no order ceasing or suspending trading in any securities of the Borrower or prohibiting the trading of any of the Borrower’s issued securities has been issued and no proceedings for such purpose are pending or, to the knowledge of the Borrower, threatened;
|
|
(b)
|
the Borrower has obtained all consents, approvals and authorizations (including the approval of the TSX and the NYSE) and has made all filings as may be required under applicable securities laws necessary for the issuance of the Issued Shares in accordance with this Agreement, provided that the total number of common shares issuable by the Borrower hereunder does not exceed 8,440,964 common shares;
|
|
(c)
|
the Borrower has not taken any action which would be reasonably expected to result in the delisting, suspension or cancellation of admission of the Borrower’s common shares on or from the TSX or NYSE;
|
|
(d)
|
the Borrower has received the approval of the TSX and the NYSE for the listing of all Issued Shares on the TSX and the NYSE;
|
|
(e)
|
the Borrower is not in default of any requirements of the TSX or the NYSE in any material respect;
|
|
(f)
|
the Borrower is a “reporting issuer” in each of the Reporting Provinces within the meaning of Applicable Securities Laws and is not in default of any requirement of Applicable Securities Laws in any material respect; and
|
|
(g)
|
to the knowledge of the Borrower, no agreement is in force or effect which affects the voting or control of the common shares of the Borrower.
|
7.01
|
Representations and Warranties
|
7.02
|
Accredited Investor
|
7.03
|
No Offering Document
|
7.04
|
Not a Shareholder
|
POSITIVE COVENANTS
|
8.01
|
Covenants
|
8.02
|
Conduct of Business, Maintenance of Existence, Compliance with Law
|
8.03
|
Access to Information
|
8.04
|
Obligations and Taxes
|
|
(a)
|
It shall pay or discharge, or cause to be paid or discharged, before they become delinquent all Taxes that are due and payable by it and all required payments under any of its Debt, in each case other than such Taxes and Debt, the payment of which is being contested in good faith by appropriate proceedings and for which adequate provision has been taken by it on its financial statements in accordance with applicable Accounting Standards.
|
|
(b)
|
It shall prepare and file, or cause to be prepared and filed, all Tax Returns that are required to be prepared and filed by it with the appropriate Governmental Authority on a timely basis all in accordance with Applicable Law, except where its ability to file such Tax Returns is impeded by an act or omission caused by or affecting the Governmental Authority with whom such Tax Return must be filed.
|
8.05
|
Use of Credit Facilities
|
8.06
|
Insurance
|
|
(a)
|
The Borrower shall maintain or cause to be maintained with reputable insurers satisfactory to the Lender acting reasonably comprehensive general liability insurance and insurance coverage against risk of loss or damage to Property of each Obligor (including public liability and damage to property of third parties, business interruption insurance, fire and extended peril insurance, and boiler and machinery insurance) in such amounts and otherwise covering such risks as is reasonable and prudent for a business analogous to the business of the Obligors, and provide to the Lender, on an annual basis, evidence of such coverage. The Borrower shall, on an annual basis prior to the expiry or replacement of any insurance policy, send copies of all renewal or replacement notices relating to such policies to the Lender.
|
|
(b)
|
The Lender shall be indicated in all property insurance policies as a loss payee as its interests may appear (except where any such policy is subject to Brazilian law) or additional insured on all general liability policies (except where any such policy is subject to Brazilian law), as applicable; provided that prior to the occurrence of an Event of Default which is continuing, the Lender shall direct or forward payment of any and all proceeds of such insurance policies to the Borrower and the Borrower shall use such proceeds to repair and restore the applicable Property.
|
8.07
|
Notices
|
|
(a)
|
any violation of any Applicable Law which, if not rectified promptly would reasonably be expected to have a Material Adverse Effect;
|
|
(b)
|
any entering into, termination of, amendment of, or default by an Obligor under a Material Contract or Mineral Right;
|
|
(c)
|
any damage to or destruction of any Property of an Obligor having a replacement cost in excess of $500,000 (or the equivalent in Brazilian reais);
|
|
(d)
|
any Encumbrance registered against any Property of an Obligor, other than a Permitted Encumbrance;
|
|
(e)
|
details of any Permitted Inter-Corporate Debt incurred subsequent to the Closing Date;
|
|
(f)
|
any Event of Default or Pending Event of Default;
|
|
(g)
|
any Material Adverse Effect;
|
|
(h)
|
the occurrence or threatened occurrence of any litigation, dispute, arbitration, proceeding or other circumstance the result of which, if determined adversely, would be a judgment or award against any Obligor:
|
|
(i)
|
in excess of $500,000 (or the equivalent in Brazilian reais); or
|
|
(ii)
|
would result in a Material Adverse Effect; or
|
|
(i)
|
the execution of any power-of-attorney, except in the ordinary course of business,
|
8.08
|
Environmental Compliance
|
|
(a)
|
the existence of Hazardous Substance located on, above or below the surface of any land which it owns, leases, operates, occupies or controls (except those being stored, used or otherwise handled in substantial compliance with applicable Requirements of Environmental Law), or contained in the soil or water constituting such land, in each case to the extent that the existence of such Hazardous Materials would reasonably be expected to have a Material Adverse Effect; or
|
|
(b)
|
the occurrence of any reportable release, spill, leak, emission, discharge, leaching, dumping or disposal of Hazardous Substances that has occurred on or from such land where such occurrence would reasonably be expected to have a Material Adverse Effect; or
|
|
(c)
|
the occurrence of any environmental damage resulting directly or indirectly from its activities, which would reasonably be expected to have a Material Adverse Effect.
|
8.09
|
Maintenance of Property
|
8.10
|
Landlord Consents and Non-Disturbance Agreements
|
|
(a)
|
obtain a consent agreement from each landlord of Real Property Rights or property that is leased by such landlord at any time and from time to time to it, in form and content satisfactory to the Lender acting reasonably;
|
|
(b)
|
obtain a non-disturbance agreement from each mortgagee of any such leased Real Property Rights and an acknowledgement by each such mortgagee of any applicable landlord’s consent in respect of such Real Property Rights; and
|
|
(c)
|
register notice of each lease relating to leased Real Property Rights and any applicable landlord’s consent and non-disturbance agreement against title to the applicable Real Property Rights or leasehold property.
|
8.11
|
Consents re Material Contracts
|
8.12
|
Pension Plans
|
8.13
|
Notification of Changes to Schedules of the Disclosure Letter
|
8.14
|
Quarterly Reports
|
8.15
|
Annual Reports
|
8.16
|
Annual Business Plan
|
8.17
|
Other Information
|
8.18
|
Disposition of Property
|
|
(a)
|
Dispositions in the ordinary course of business of obsolete Property or of any inventory or other assets that are customarily sold by it on an on-going basis as part of the normal operation of its business;
|
|
(b)
|
Dispositions of Property between the Obligors, where in each case, the receiving Obligor has granted Security to the Lender over or in respect of such Property subject only to Permitted Encumbrances;
|
|
(c)
|
Dispositions of Property on Arm’s Length terms and for fair market value which are not otherwise permitted under subparagraphs 8.18(a) and 8.18(b) above, provided that the Net Proceeds are used by the Borrower to repay principal outstanding in accordance with Section 5.04; and
|
|
(d)
|
Dispositions of Equity Interests of a Guarantor where all or substantially all of the Property of such Guarantor has been transferred to another Obligor, other than Recoverable Taxes.
|
8.19
|
No Consolidation, Amalgamation, etc.
|
|
(a)
|
each Guarantor may enter into a Capital Reorganization provided that the Lender receives Security (subject only to Permitted Encumbrances) over its interest in all Equity Interests resulting from such Capital Reorganization that were not previously pledged by the Security;
|
|
(b)
|
the Borrower may enter into a Capital Reorganization in which the holders of Equity Interests of the Borrower immediately prior to the Capital Reorganization continue to have, directly or indirectly, more than 50% of the Equity Interests of the Borrower or applicable Successor Entity immediately after such Capital Reorganization and no Event of Default would result from such Capital Reorganization; and
|
|
(c)
|
it may amalgamate, enter into a merger, consolidation or other reorganization with, or liquidate, wind-up or dissolve itself (or suffer any liquidation, wind-up or dissolution) into, another Obligor so long as no Event of Default is then existing and no Event of Default would result from the consummation of such merger, amalgamation or consolidation.
|
8.20
|
No Change of Name
|
8.21
|
No Debt
|
8.22
|
No Investments
|
8.23
|
No Financial Assistance
|
8.24
|
No Distributions
|
8.25
|
No Encumbrances
|
8.26
|
No Change to Year End
|
8.27
|
No Continuance
|
8.28
|
Location of Assets in Other Jurisdictions
|
|
(a)
|
it has first given 30 days prior written notice thereof to the Lender; and
|
|
(b)
|
it has first executed and delivered to the Lender all Security and all financing or registration statements deemed necessary or admissible by, and in form and substance satisfactory to, the Lender or Lender’s Counsel, to ensure that the Security at all times constitutes a perfected first priority Encumbrance (subject only to Permitted Encumbrances and Insolvency Legislation) over such Property in such jurisdiction, together with any supporting certificates, resolutions, opinions and other documents as the Lender or Lender’s Counsel may deem necessary or desirable.
|
8.29
|
Restrictions on Business Activities
|
8.30
|
Financial Instruments
|
8.31
|
Amendments to Organizational Documents
|
8.32
|
Amendments to Other Material Contracts and Material Licences
|
8.33
|
No New Subsidiaries
|
8.34
|
Accounts
|
|
(a)
|
any chequing, savings, or other accounts at any bank or other financial institution or any other account where money is or may be deposited or maintained with any Person; or
|
|
(b)
|
a securities account or have any securities entitlement (as those terms are defined in the STA);
|
8.35
|
Mineral Rights
|
|
(a)
|
each of the Mineral Rights that are commercially viable to it shall be maintained and defended in accordance with Applicable Laws;
|
|
(b)
|
except as set out in Schedule 20 of the Disclosure Letter, there shall be no agreements, commitments, third party held options or third party rights to any of the Mineral Rights or unpaid taxes, debts or fees or overdue royalty payments pending in relation to any of its Mineral Rights, except where the payment of any of the foregoing is being diligently contested in good faith by appropriate proceedings; and
|
|
(c)
|
it shall take such actions as are commercially reasonable to obtain or maintain free and unrestricted access to the land covered by its Mineral Rights as is necessary to permit it to exploit its Mineral Rights with respect to such land.
|
8.36
|
Issued Shares
|
|
(a)
|
All consents, approvals, permits, authorizations or filings as may be required under applicable securities laws, including the approval of any stock exchange on which the Borrower's common shares are listed, necessary for the issuance and sale of the Issued Shares will be obtained by the Borrower prior to the date any Issued Shares are to be issued to the Lender hereunder in relation to Issued Shares actually issued in accordance with the terms hereof.
|
|
(b)
|
The Borrower shall use commercially reasonable efforts to maintain the listing of its common shares on the TSX until the principal amount of Advances made hereunder has been satisfied in full and the Lender is under no obligation to make further Advances, provided this covenant shall not prevent the Borrower from (i) entering into a support agreement, arrangement agreement, amalgamation agreement or other similar agreement in respect of a take-over bid, merger, amalgamation, tender offer, recapitalization, scheme of arrangement or share exchange, or (ii) completing any transaction which would result in the Borrower ceasing to be listed on the TSX, in each case so long as the holders of common shares of the Borrower receive securities of an entity which is listed on a stock exchange in Canada or the holders of common shares of the Borrower have approved the transaction (by way of vote or by tender to a take-over bid of more than 50% of the outstanding common shares of the Borrower), in accordance with Applicable Securities Laws.
|
|
(c)
|
The Borrower shall use commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the securities laws of the Reporting Provinces until the principal amount of Advances made hereunder has been satisfied in full and the Lender is under no obligation to make further Advances, provided this covenant shall not prevent the Borrower from (i) entering into a support agreement, arrangement agreement, amalgamation agreement or other similar agreement in respect of a take-over bid, merger, amalgamation, tender offer, recapitalization, scheme of arrangement or share exchange, or (ii) completing any transaction which would result in the Borrower ceasing to be a reporting issuer, in each case so long as the holders of common shares of the Borrower receive securities of an entity which is listed on a stock exchange or the holders of common shares of the Borrower have approved the transaction (by way of vote or by tender to a take-over bid of more than 50% of the outstanding common shares of the Borrower), in accordance with Applicable Securities Laws.
|
|
(d)
|
All necessary corporate action has been taken by the Borrower to reserve and authorize for issuance a sufficient number of common shares to enable it to satisfy its obligations to issue the Issued Shares hereunder and such shares, when issued in accordance with the terms of this Agreement, will be validly issued and outstanding as fully paid and non-assessable shares in the capital of the Borrower.
|
|
(e)
|
The Borrower shall file a Form 45-106F1 within the time period prescribed by National Instrument 45-106 in connection with the issuance of all Issued Shares, as applicable.
|
8.37
|
Non-Arm’s Length Transactions
|
8.38
|
Prepayment of Other Debt
|
|
(a)
|
regularly scheduled payments, prepayments or redemptions of principal, interest and any other amount owing in respect thereof required pursuant to the instruments evidencing such Debt and as set out on Schedule 21 of the Disclosure Letter; and
|
|
(b)
|
in connection with any Brazilian Bank Loan, (i) a payment demanded by the lender thereunder, (ii) a prepayment that in its reasonable opinion, based on communications from the lender thereunder, is necessary to avoid a demand for payment by such lender or (iii) a prepayment that in its reasonable opinion is necessary to avoid it being made subject by the lender thereunder to terms not commercially reasonable in the context of the Obligors' other financing commitments, taken as a whole; provided that it may not make any payment of the type contemplated by this Section 8.38(b) if any of the following exist: (x) at the time of such payment, the Obligors do not have sufficient resources by way of cash and availability under the Credit Facility to satisfy all of the Obligors’ aggregate indebtedness, liabilities and obligations of any and every kind, nature or description whatsoever (whether direct or indirect, absolute or contingent, matured or unmatured) owing to the lender to whom such payment is to be made; and (y) there exists an Event of Default or Pending Event of Default that has not been cured or waived.
|
9.01
|
Form of Security
|
|
(a)
|
As general and continuing security for the due payment and performance of the Obligations, the following Security shall be granted to the Lender:
|
|
(i)
|
a general security agreement from the Borrower in favour of the Lender, constituting a first priority Encumbrance (subject only to the Priority Encumbrances) on all present and after-acquired Property of the Borrower;
|
|
(ii)
|
a pledge of machinery and equipment in respect of all present and after-acquired tangible assets with an original cost to a Guarantor equal to or greater than $75,000 (or the equivalent in Brazilian reais) from each Guarantor in favour of the Lender, constituting a first priority Encumbrance (subject only to the Priority Encumbrances);
|
|
(iii)
|
an unlimited guarantee from each Subsidiary of the Borrower, guaranteeing the due payment and performance to the Lender of the all present and future Obligations of the Borrower;
|
|
(iv)
|
mortgages or charges, as applicable, duly registered in first position (subject to Priority Encumbrances) against all present and after-acquired Real Property Rights owned by MSOL and MTL;
|
|
(v)
|
a pledge of mineral rights from MTL and MSOL in favour of the Lender, constituting a first priority Encumbrance (subject only to the Priority Encumbrances) against all present and after-acquired mineral rights owned by MTL and MSOL;
|
|
(vi)
|
a pledge of gold production from MTL and MSOL in favour of the Lender constituting a first priority Encumbrance (subject only to Priority Encumbrances) in respect of all gold production of MTL and MSOL;
|
|
(vii)
|
a pledge of accounts and receivables from each Guarantor in favour of the Lender constituting a first priority Encumbrance (subject only the Priority Encumbrances) in respect of all present and after-acquired accounts and receivables; and
|
|
(viii)
|
a conditional assignment to the Lender constituting a first priority Encumbrance (subject only the Priority Encumbrances) of the rights, entitlements, and benefits of each Guarantor under any Material Contract, the Inter-Corporate Debt and certain agreements relating to Real Property Rights and Mineral Rights.
|
|
(b)
|
The documents referred to above shall be in form satisfactory to the Lender and Lender’s Counsel, provided however that such documents subject to Brazilian law or registered in Brazil shall be in the Portuguese language.
|
|
(c)
|
Except in the case of confirmation of registration of the pledges of mineral rights with the DNPM Brazilian Mines Department - Belo Horizonte, Minas Gerais and São Luiz, Maranhão, the Borrower shall deliver to the Lender, as soon as reasonably practicable, and in any event no later than 110 days following the Closing Date, confirmation of the due registration, filing and recording of the Title Security and the Security listed in Exhibit 4 in all applicable offices or places in all Relevant Jurisdictions together with confirmatory legal opinions of Borrower’s Counsel in Brazil in respect thereof. The Borrower shall deliver to the Lender, as soon as reasonably practicable, confirmation of the due registration of the pledges of mineral rights with the DNPM Brazilian Mines Department - Belo Horizonte, Minas Gerais and São Luiz, Maranhão.
|
9.02
|
After Acquired Property and Further Assurances
|
9.03
|
Registration
|
9.04
|
Release of Security
|
10.01
|
Events of Default
|
|
(a)
|
the failure of an Obligor to pay any amount of principal hereunder, or to pay interest, fees or other Obligations when due and payable and such failure shall continue for a period of 5 Business Days following receipt by such Obligor from the Lender of notice of non-payment;
|
|
(b)
|
the failure of an Obligor to observe or perform any covenant or obligation applicable to it under any Credit Document (other than a covenant or condition whose breach or default in performance is specifically dealt with elsewhere in this Section 10.01), if such default is capable of being cured within 90 days and that Obligor fails to cure such default within the earlier of 30 days from the date:
|
|
(i)
|
it has knowledge of the default; and
|
|
(ii)
|
the Lender delivers written notice of the default to the Borrower;
|
|
(c)
|
any representation or warranty made by any Obligor in any Credit Document or in any certificate or other document at any time delivered hereunder to the Lender was incorrect or misleading in any material respect;
|
|
(d)
|
the cessation or threatened cessation by an Obligor of its business generally;
|
|
(e)
|
the failure of an Obligor to observe or perform any agreement or condition in relation to any Debt (other than in connection with the Brazilian Bank Loans) in excess of $2,000,000 (or the equivalent in Brazilian reais) to any Person, or contained in any instrument or agreement evidencing, securing or relating thereto, or (other than in connection with the Brazilian Bank Loans) any other event shall occur or condition exist, the effect of which default or other condition is to cause, or to permit the holder of such Debt to cause such Debt to become due prior to its stated maturity date and the Obligor shall have failed to cure that breach or alleged breach, provided same is curable, within 30 days after the Obligor has knowledge thereof;
|
|
(f)
|
the denial by any Obligor of its obligations under any Credit Document, or the claim by any Obligor that any of the Credit Documents is invalid or has been withdrawn in whole or in part, except to the extent set forth in the opinions of the Borrower’s Counsel delivered pursuant to Section 3.01;
|
|
(g)
|
a decree or order has been entered by a court of competent jurisdiction adjudging an Obligor bankrupt or insolvent or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any of them under any Insolvency Legislation or insolvency or appointing a receiver and/or a receiver and manager or decreeing or ordering a winding-up or liquidation of the affairs of any of them, unless such decree or order is being contested diligently and in good faith by appropriate proceedings by such Obligor and such decree or order is stayed cancelled or dismissed within 60 days;
|
|
(h)
|
an Obligor files a proposal pursuant to Insolvency Legislation or shall institute proceedings to be adjudicated a bankrupt or insolvent or shall consent to the institution of bankruptcy, or insolvency proceedings against it or shall file a petition or answer or consent seeking reorganization or relief under any applicable laws relating to bankruptcy or insolvency, or shall consent to the filing of any such petition or shall consent to the appointment of a receiver and/or a receiver and manager or shall have made an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due;
|
|
(i)
|
the taking of possession by an Encumbrancer, by appointment of a receiver, receiver and manager, or otherwise, of any material portion of the Property of any Obligor unless such appointment or possession is being contested diligently and in good faith by appropriate proceedings by such Obligor and such possession or appointment is stayed or revoked within 60 days;
|
|
(j)
|
an Obligor incurs any further Debt or other liability to any Person holding a Priority Encumbrance beyond the amount of such Obligor’s Debt and liabilities to such Persons as at the Closing Date;
|
|
(k)
|
the entering or obtaining of a final judgment or decree for the payment of money due against an Obligor in an amount in excess of $2,000,000 (or the equivalent in Brazilian reais) if that judgment or decree is not vacated, discharged or stayed pending appeal within the applicable appeal period;
|
|
(l)
|
the issuance of one or more orders by (i) one or more of the securities regulators in the Reporting Provinces or in a jurisdiction outside of Canada, (ii) the NYSE, (iii) the TSX, or (iv) the TSXV, ceasing, suspending or prohibiting trading in securities of the Borrower on all of the NYSE, the TSX and the TSXV, and such order or orders shall continue in effect for a period of 10 Business Days following its issuance;
|
|
(m)
|
any of the Brazilian Bank Loans shall remain unsatisfied for a period of 30 days following demand or maturity thereof; or
|
|
(n)
|
a Change of Control in respect of the Borrower.
|
10.02
|
Acceleration and Termination of Rights
|
10.03
|
Remedies Cumulative
|
10.04
|
Saving
|
10.05
|
Perform Obligations
|
10.06
|
Third Parties
|
10.07
|
Set-Off or Compensation
|
10.08
|
Application of Payments
|
|
(a)
|
first, to payment of any fees owed to the Lender hereunder or under any other Credit Document;
|
|
(b)
|
second, to the payment of all reasonable documented out-of-pocket costs and expenses (including without limitation reasonable legal fees) of the Lender in connection with enforcing the rights of the Lender under the Credit Documents;
|
|
(c)
|
third, to the payment of all Obligations consisting of interest payable to the Lender hereunder;
|
|
(d)
|
fourth, to all other Obligations; and
|
|
(e)
|
fifth, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
|
11.01
|
Costs and Expenses
|
11.02
|
Specific Third Party Claim Indemnification
|
12.01
|
Change in Law
|
|
(a)
|
In the event of any change after the date of this Agreement in any Applicable Law or in the interpretation or application thereof by any court or by any Governmental Authority which now or hereafter:
|
|
(i)
|
subjects the Lender to any Tax or changes the basis of taxation, or increases any existing Tax, on payments of interest or fees payable by any Obligor to the Lender under any Credit Document (except for Excluded Taxes on the overall net income or capital of the Lender or any franchise, branch, or profits tax), other than in respect of which the Lender has claimed or received an Additional Amount pursuant to Section 12.02;
|
|
(ii)
|
imposes, modifies or deems applicable any reserve, special deposit or similar requirements against assets held by, or deposits in or for the account of or loans by or any other acquisition of funds by, the office of the Lender through which the Credit Facility is being provided and at which the Obligations are being maintained; or
|
|
(iii)
|
imposes on the Lender or requires there to be maintained by the Lender any capital adequacy or additional capital requirements in respect of the Advance hereunder or any other condition with respect to any Credit Document;
|
|
(b)
|
Upon the Lender having determined that it is entitled to Additional Compensation the Lender shall promptly notify the Borrower. The Lender shall provide to the Borrower a photocopy of the relevant Applicable Law, and a certificate of a duly authorized officer of the Lender setting forth the Additional Compensation and the basis of calculation therefor, which shall be conclusive evidence of such Additional Compensation in the absence of manifest error. The Borrower shall pay or shall cause the applicable Obligor to pay to the Lender within 10 Business Days of the giving of such notice the Lender’s Additional Compensation calculated to the date of such notification. The Lender shall be entitled to be paid such Additional Compensation from time to time to the extent that the provisions of this Section 12.01 are then applicable, notwithstanding that the Lender has previously been paid Additional Compensation. The Lender shall endeavour to limit the incidence of any Additional Compensation, including seeking recovery for the account of the applicable Obligor, by appealing any assessment at the expense of the applicable Obligor upon the request of the Borrower and will not seek Additional Compensation from the applicable Obligor except to the extent it seeks Additional Compensation from all debtors to it, if any, similarly affected. The Lender shall transfer the Credit Facility to another of its existing offices if and to the extent doing so would reduce or eliminate the necessity of an Obligor paying present or future Additional Compensation.
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12.02
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Taxes
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(a)
|
All payments required to be made to the Lender pursuant to the Credit Documents shall be made free and clear of, and without deduction or withholding for, or on account of, any present or future Taxes unless such deduction or withholding is required by Applicable Law. If any Indemnified Taxes are required to be deducted or withheld by Applicable Law from any amounts payable under the Credit Documents to the Lender (other than in respect of which the Lender has claimed or received Additional Compensation pursuant to Section 12.01), the Obligor shall promptly pay an additional amount (“Additional Amount”) to the Lender as may be necessary so that after making all required Tax deductions or withholdings (including deductions or withholdings applicable to Additional Amounts payable under this Section 12.02), the Lender receives an amount equal to the amount that it would have received had no such deductions or withholdings been required. The applicable Obligor shall pay the full amount of all Taxes deducted or withheld under this Section 12.02 to the relevant Governmental Authority on a timely basis all in accordance with Applicable Law. Each Obligor shall be fully liable and responsible for and shall, promptly following receipt of a request from the Lender, pay to the Lender on its behalf or on behalf of the other Obligors, any and all Taxes in the nature of sales, use, and goods and services, and harmonized sales Taxes payable under the laws of Canada or any Province of Canada, or payable under the laws of any other country or jurisdiction, with respect to any and all goods and services made available under the Credit Documents to any Obligor by the Lender. Whenever any Taxes are required to be paid by an Obligor to a Governmental Authority under this Section 12.02, the Obligor shall send or cause to be sent to the Lender, as promptly as possible thereafter, a certified copy of an original official receipt showing payment of such Taxes or other satisfactory evidence of the payment of such Taxes. If an Obligor fails to pay any Taxes deducted or withheld as required under this Section 12.02 when due or if an Obligor fails to remit to the Lender the required documentary evidence of such payment, the Borrower shall indemnify and save harmless the Lender from any Taxes or other liabilities that may become payable by the Lender or to which the Lender may be subjected as a result of any such failure. A certificate of the Lender as to the amount of any such Taxes and containing reasonable details of the calculation of such Taxes shall be, absent manifest error, prima facie evidence of the amount of such Taxes.
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(b)
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If the Lender is entitled to an exemption from or reduction of withholding tax under the laws of a jurisdiction in which an Obligor is resident or carries on business, or under any applicable tax treaty with such jurisdiction, the Lender shall, at the request of an Obligor, deliver to the Obligor, at the time or times reasonably requested by Obligor, such properly completed and executed documentation as will permit payments under the Credit Documents to be made without withholding or at a reduced rate of withholding.
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(c)
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If the Lender receives a refund of any Taxes as to which it has been indemnified by an Obligor or with respect to which an Obligor has paid Additional Amounts or that, because of the payment of such Taxes, it has benefited from a reduction in Excluded Taxes otherwise payable by it, it shall pay to the Obligor, an amount equal to such refund or reduction (but only to the extent of indemnity payments made, or Additional Amounts paid, by the Obligors under this Section 12.02 with respect to the Taxes giving rise to such refund or reduction), net of all reasonable documented out-of-pocket expenses of the Lender.
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13.01
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Binding Effect
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13.02
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Assignment
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(a)
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No Obligor may assign any rights or obligations relating to this Agreement or any other Credit Document without the Lender’s prior written consent.
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(b)
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The Lender’s rights and obligations under this Agreement are assignable and the Lender shall be entitled to assign its rights and obligations or to permit other Persons to participate in the Credit Facilities, all in accordance with the provisions of this section and the other terms of this Agreement. The Borrower hereby consents to the disclosure of any Information to any potential Lender or participant provided that the potential Lender or participant agrees in writing to keep the Information confidential and abide by the terms of Section 14.01 in a manner that is legally enforceable by the Borrower and other Obligors directly against such Person.
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(c)
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Subject to this section and the other terms of this Agreement, the Lender may assign or transfer all (but not less than all) of its rights and obligations under this Agreement to such Persons, at such times, and upon such terms as it may determine provided that
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(i)
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prior to the occurrence and continuance of a Pending Event of Default or Event of Default, no assignment shall be made to an assignee where that assignment would result in the Borrower being obliged to make additional payments to the Lender under Section 12.01 (Change in Law) or 12.02 (Taxes), and
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(ii)
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until the occurrence of an Event of Default or a Pending Event of Default which is continuing, any such assignment requires the Borrower’s prior written consent, which consent shall not to be unreasonably withheld or delayed.
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(d)
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Following the occurrence of an Event of Default or a Pending Event of Default that is continuing, the Borrower’s prior written consent to any such assignment will not be required.
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(e)
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The assigning Lender shall obtain from the assignee an undertaking of the assignee, addressed to the Parties to this Agreement, whereby the assignee agrees to be bound by this Agreement and the other Credit Documents in the place and stead of the assignor Lender to the extent of the rights and obligations of the assignor so assigned.
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(f)
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After the execution and delivery of the undertaking, and the Borrower’s consent, to the extent required
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|
(i)
|
the assignee will be a party to this Agreement and, to the extent that rights and obligations under this Agreement have been assigned to it, have the Lender’s rights and obligations under this Agreement, and
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|
(ii)
|
the assigning Lender will, to the extent that rights and obligations under this Agreement have been assigned by it under such assignment agreement, relinquish its rights and be released from its obligations under this Agreement (except for obligations in respect of which it is then in default and for greater certainty any liabilities for any act or omission which occurred prior to such assignment) and that assigning Lender will cease to be a party to this Agreement.
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13.03
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Participations
|
|
(a)
|
the Lender’s obligations under this Agreement will remain unchanged and the Lender will remain solely responsible to the other Parties to this Agreement for the performance of those obligations,
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(b)
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the Obligors shall continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations under this Agreement,
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(c)
|
no participant will have any right to approve any amendment or waiver of any provision of this Agreement or any consent to any departure by any Person therefrom,
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|
(d)
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any agreement or instrument pursuant to which the Lender sells such participations shall provide that the Lender shall retain the sole right to enforce the Credit Documents and to approve any amendment, modification or waiver of any provision of the Credit Documents; and
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|
(e)
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a participation by the Lender of its interest (or a part thereof) under this Agreement or a payment by a participant to the Lender as a result of the participation will not constitute a payment under this Agreement to the Lender or an Advance to the Borrower.
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14.01
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Confidentiality and Disclosure of Information
|
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(a)
|
Notwithstanding Section 14.01(b) below, the Lender may provide any assignee or participant, or potential assignee or participant, under Article 13 (Successors and Assigns and Additional Lenders) with any financial, operational, and other information and data provided and to be provided to it by the Obligors or any one of them under this Agreement (the “Information”) concerning the condition of the Obligors, provided that such assignee or participant or potential assignee or participant enters into a confidentiality agreement with the Borrower pursuant to which it agrees to prevent the disclosure of such information on such terms as are acceptable to the Borrower, acting reasonably;
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|
(b)
|
Subject to paragraph (i) below, the Lender acknowledges the confidential nature of the Information and shall prevent its disclosure provided, however, that it:
|
|
(i)
|
may disclose all or any part of the Information if that disclosure is required by Law or process of a Governmental Authority in connection with any actual or threatened judicial, administrative, or governmental proceeding;
|
|
(ii)
|
will incur no liability relating to any disclosure of Information to any, or under the requirements of any, judicial authority, law enforcement agency, or taxation authority where such disclosure is required by Law or process of a Governmental Authority; and
|
|
(iii)
|
may disclose Information to any Person in connection with any enforcement action being taken or proposed to be taken by the Lender against an Obligor provided the recipient of the Information enters into a non-disclosure agreement with the Lender.
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15.01
|
Entire Agreement
|
15.02
|
Further Assurances
|
15.03
|
Amendment
|
15.04
|
Conflict of Terms
|
15.05
|
No Partnership
|
15.06
|
Notice
|
15.07
|
Remedies Cumulative
|
15.08
|
Non-Merger
|
15.09
|
Survival
|
15.10
|
Severability
|
15.11
|
Waiver
|
15.12
|
Governing Law
|
15.13
|
Submission to Jurisdiction
|
15.14
|
Judgment Currency
|
|
(a)
|
If, for the purpose of obtaining or enforcing judgment against any party in any court in any jurisdiction, it becomes necessary to convert into a particular currency (the “Judgment Currency”) an amount due in another currency (the “Indebtedness Currency”) under any Credit Document, the conversion will be made at the Rate of Exchange prevailing on the Business Day immediately preceding
|
|
(i)
|
the date of actual payment of the amount due, in the case of any proceeding in the courts of the Province of Ontario or in the courts of any other jurisdiction that will give effect to the conversion being made on that date, or
|
|
(ii)
|
the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (that date being the “Judgment Conversion Date”).
|
|
(b)
|
If, as a result of a change in the Rate of Exchange between the Judgment Conversion Date and the date of actual payment, the conversion of the Judgment Currency into Indebtedness Currency dollars results in the Lender receiving less than the full amount of Indebtedness Currency dollars payable to Lender, the Borrower agrees to pay the Lender any additional amount (and in any event not a lesser amount) as may be necessary to ensure that the amount received is not less than the full amount of Indebtedness Currency dollars payable by the Borrower on the date of payment. Any additional amount due under this section will be due as a separate debt, gives rise to a separate cause of action, and will not be affected by judgment obtained for any other sums due under this Agreement.
|
15.15
|
Waiver of Jury Trial
|
|
(a)
|
waive any rights that they may have to a trial by jury or relating to any litigation based on or arising out of, under, or in connection with this Agreement, any other Credit Document, or any course of conduct, course of dealing, statements (whether oral or written), or actions of the Lender or of the Obligors; and
|
|
(b)
|
acknowledge and agree that this provision is a material inducement for the Lender entering into this Agreement and each other Credit Document.
|
15.16
|
Counterparts
|
15.17
|
Effective Date
|
JAGUAR MINING INC.
|
|||
By:
|
(signed) David Petroff
|
||
Name: David Petroff
|
|||
Title: CEO
|
|||
By:
|
(signed) James M. Roller
|
||
Name: James M. Roller
|
|||
Title: CFO
|
|||
I/We have authority to bind the Corporation
|
GLOBAL RESOURCE FUND
|
|||
By:
|
(signed) Adriano D.C. Trindade
|
||
Name: Adriano D.C. Trindade
|
|||
Title: Attorney-in-Fact
|
|||
I have authority to bind the Corporation
|
|||
MINERAÇÃO SERRAS DO OESTE LTDA.
|
|||
By:
|
(signed) James M. Roller
|
||
Name: James M. Roller
|
|||
Title: Diretor
|
|||
I have authority to bind the Corporation
|
MINERAÇÃO TURMALINA LTDA.
|
|||
By:
|
(signed) James M. Roller
|
||
Name: James M. Roller
|
|||
Title: Diretor
|
|||
I have authority to bind the Corporation
|
MCT MINERAÇÃO LTDA.
|
|||
By:
|
(signed) James M. Roller
|
||
Name: James M. Roller
|
|||
Title: Diretor
|
|||
I have authority to bind the Corporation
|
TO:
|
Global Resource Fund (“Lender”)
|
FROM:
|
Jaguar Mining Inc. (“Borrower”)
|
DATE:
|
•
|
1.
|
This Repayment Notice is delivered to you pursuant to the credit agreement made as of December 17, 2012, between the Borrower, the Guarantors and the Lender, as amended, supplemented, restated or replaced from time to time (the “Credit Agreement”). All defined terms set forth, but not otherwise defined, in this notice shall have the respective meanings set forth in the Credit Agreement, unless the context requires otherwise.
|
2.
|
The Borrower hereby gives you notice of a repayment as follows:
|
|
(a)
|
Date of Repayment:
|
|
(b)
|
Amount of Repayment:
|
JAGUAR MINING INC.
|
|||
By:
|
|
||
Name:
|
|||
Title:
|
|||
By:
|
|
||
Name:
|
|||
Title:
|
|||
I/We have authority to bind the Corporation
|
TO:
|
Global Resource Fund (“Lender”)
|
FROM:
|
Jaguar Mining Inc. (“Borrower”)
|
DATE:
|
•
|
JAGUAR MINING INC.
|
|||
By:
|
|
||
Name:
|
|||
Title:
|
|||
By:
|
|
||
Name:
|
|||
Title:
|
|||
I/We have authority to bind the Corporation
|
Security
|
Office of Registration
|
Gold Production Agreement
|
|
MSOL
|
Real Estate Register Itabirito, Santa Bárbara, Caeté, Barão de Cocais, Sabará and Rio Acima, Minas Gerais
|
MTL
|
Real Estate Register Pitangui, Minas Gerais
|
Accounts Receivable Pledge
|
|
MSOL
|
Registry of Deeds and Documents of Belo Horizonte, Minas Gerais
|
MTL
|
Registry of Deeds and Documents of Conceição do Pará, Minas Gerais
|
MCT
|
Registry of Deeds and Documents of Centro Novo do Maranhão, Maranhão
|
Conditional Agreement for Assignment of Contracts
|
|
MSOL
|
Registry of Deeds and Documents of Belo Horizonte, Minas Gerais
|
MTL
|
Registry of Deeds and Documents of Conceição do Pará, Minas Gerais
|
MCT
|
Registry of Deeds and Documents of Centro Novo do Maranhão, Maranhão
|
Real Estate Mortgage Agreement
|
|
MSOL
|
Real Estate Register Itabirito, Barão de Cocais and Caete, Minas Gerais
|
MTL
|
Real Estate Register Pitangui, Minas Gerais
|