Exhibit 4.03


 


Execution Version


 


AGNICO-EAGLE MINES
LIMITED


as Borrower


 


-and-


 


THE GUARANTORS FROM
TIME TO TIME


PARTY TO THIS
AGREEMENT


as Guarantors


 


-and-


 


THE LENDERS FROM TIME
TO TIME


PARTY TO THIS
AGREEMENT


 


-and-


 


THE BANK OF NOVA
SCOTIA


as Lead Arranger and
Administrative Agent


 


-and-


 


THE TORONTO-DOMINION
BANK


as Syndication Agent


 


-and-


 


BANK OF MONTREAL


as Co-Documentation
Agent


 


- and -


 


COMMONWEALTH BANK OF
AUSTRALIA


as Co-Documentation
Agent


 






 


CREDIT AGREEMENT


DATED AS OF SEPTEMBER
4, 2008


US$300,000,000 CREDIT
FACILITIES


 






 


BORDEN LADNER GERVAIS
LLP


 


DAVIES WARD PHILLIPS &
VINEBERG LLP


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
   

  	
  INTERPRETATION

  	
   

  	
  1

  
	
  1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  1.2

  	
   

  	
  Interpretation

  	
   

  	
  30

  
	
  1.3

  	
   

  	
  Currency

  	
   

  	
  31

  
	
  1.4

  	
   

  	
  Generally
  Accepted Accounting Principles

  	
   

  	
  31

  
	
  1.5

  	
   

  	
  Division and
  Titles

  	
   

  	
  31

  
	
  2.

  	
   

  	
  THE CREDIT

  	
   

  	
  32

  
	
  2.1

  	
   

  	
  Amounts of
  Credit Facility

  	
   

  	
  32

  
	
  2.2

  	
   

  	
  Availment
  Options under Credit Facility

  	
   

  	
  32

  
	
  2.3

  	
   

  	
  Revolving
  Credit Facility

  	
   

  	
  32

  
	
  2.4

  	
   

  	
  Purpose/Use
  of the Credit Facility

  	
   

  	
  32

  
	
  2.5

  	
   

  	
  Term and
  Repayment

  	
   

  	
  32

  
	
  2.6

  	
   

  	
  Voluntary
  Prepayments and Voluntary Cancellations

  	
   

  	
  32

  
	
  2.7

  	
   

  	
  Interest
  Rates

  	
   

  	
  33

  
	
  2.8

  	
   

  	
  Exchange
  Rate Fluctuations

  	
   

  	
  35

  
	
  2.9

  	
   

  	
  Pro-Rata
  Utilizations

  	
   

  	
  35

  
	
  3.

  	
   

  	
  ADVANCES, CONVERSIONS AND
  OPERATION OF ACCOUNTS

  	
   

  	
  36

  
	
  3.1

  	
   

  	
  Notice of
  Borrowing - Direct Advances

  	
   

  	
  36

  
	
  3.2

  	
   

  	
  Canadian Dollar-Libor Funded Advances

  	
   

  	
  36

  
	
  3.3

  	
   

  	
  LIBOR
  Advances and Conversions

  	
   

  	
  37

  
	
  3.4

  	
   

  	
  Evidence of
  Indebtedness

  	
   

  	
  37

  
	
  3.5

  	
   

  	
  Apportionment
  of Advances

  	
   

  	
  38

  
	
  3.6

  	
   

  	
  Notices
  Irrevocable

  	
   

  	
  38

  
	
  3.7

  	
   

  	
  Limits on BA
  Advances and Libor Advances

  	
   

  	
  38

  
	
  4.

  	
   

  	
  CALCULATION OF INTEREST AND FEES

  	
   

  	
  38

  
	
  4.1

  	
   

  	
  Calculation
  of Interest on Prime Rate Advances and US Base Rate Advances

  	
   

  	
  38

  
	
  4.2

  	
   

  	
  Payment of
  Interest on Prime Rate Advances and US Base Rate Advances

  	
   

  	
  38

  
	
  4.3

  	
   

  	
  Calculation
  of Interest on Libor Basis

  	
   

  	
  38

  
	
  4.4

  	
   

  	
  Payment of
  Interest on Libor Basis

  	
   

  	
  39

  
	
  4.5

  	
   

  	
  Fixing of
  LIBOR

  	
   

  	
  39

  
	
  4.6

  	
   

  	
  Interest on
  Miscellaneous Amounts

  	
   

  	
  39

  
	
  4.7

  	
   

  	
  Default
  Interest

  	
   

  	
  39

  
	
  4.8

  	
   

  	
  Maximum
  Interest Rate

  	
   

  	
  40

  
	
  4.9

  	
   

  	
  Interest Act

  	
   

  	
  40

  
	
  5.

  	
   

  	
  BANKERS’ ACCEPTANCES

  	
   

  	
  40

  
	
  5.1

  	
   

  	
  Advances by
  Bankers’ Acceptances and Conversions into Bankers’ Acceptances

  	
   

  	
  40

  
	
  5.2

  	
   

  	
  Acceptance
  Procedure

  	
   

  	
  41

  
	
  5.3

  	
   

  	
  Purchase of
  Bankers’ Acceptances and Discount Notes

  	
   

  	
  42

  
	
  5.4

  	
   

  	
  Maturity
  Date of Bankers’ Acceptances

  	
   

  	
  43

  
	
  5.5

  	
   

  	
  Deemed
  Conversions on the Maturity Date of Bankers’ Acceptances

  	
   

  	
  43

  
	
  5.6

  	
   

  	
  Conversion
  and Extension Mechanism

  	
   

  	
  43

  
	
  5.7

  	
   

  	
  No
  Prepayment of Bankers’ Acceptances

  	
   

  	
  44

  
	
  5.8

  	
   

  	
  Apportionment
  Amongst the Lenders

  	
   

  	
  44

  
	
  5.9

  	
   

  	
  Days of
  Grace

  	
   

  	
  44

  



 


i

















 


	
  5.10

  	
   

  	
  Obligations
  Absolute

  	
   

  	
  45

  
	
  5.11

  	
   

  	
  Depository Bills and Notes Act

  	
   

  	
  45

  
	
  6.

  	
   

  	
  ILLEGALITY, INCREASED COSTS,
  INDEMNIFICATION AND MARKET DISRUPTIONS

  	
   

  	
  45

  
	
  6.1

  	
   

  	
  Illegality

  	
   

  	
  45

  
	
  6.2

  	
   

  	
  Increased
  Costs

  	
   

  	
  46

  
	
  6.3

  	
   

  	
  Taxes

  	
   

  	
  48

  
	
  6.4

  	
   

  	
  Breakage
  Costs, Failure to Borrow or Repay After Notice

  	
   

  	
  50

  
	
  6.5

  	
   

  	
  Mitigation
  Obligations: Replacement of Lenders

  	
   

  	
  50

  
	
  6.6

  	
   

  	
  Market for
  Bankers’ Acceptances and Libor Advances

  	
   

  	
  51

  
	
  7.

  	
   

  	
  PROVISIONS RELATING TO PAYMENTS

  	
   

  	
  52

  
	
  7.1

  	
   

  	
  Payment of
  Losses Resulting From a Prepayment

  	
   

  	
  52

  
	
  7.2

  	
   

  	
  Imputation
  of Prepayments

  	
   

  	
  52

  
	
  7.3

  	
   

  	
  Currency of
  Payments

  	
   

  	
  52

  
	
  7.4

  	
   

  	
  Payments by
  the Borrower to the Agent

  	
   

  	
  53

  
	
  7.5

  	
   

  	
  Payment on a
  Business Day

  	
   

  	
  53

  
	
  7.6

  	
   

  	
  Payments by
  the Lenders to the Agent

  	
   

  	
  53

  
	
  7.7

  	
   

  	
  Netting

  	
   

  	
  53

  
	
  7.8

  	
   

  	
  Application
  of Payments

  	
   

  	
  53

  
	
  7.9

  	
   

  	
  No Set-Off
  or Counterclaim by Borrower

  	
   

  	
  53

  
	
  7.10

  	
   

  	
  Debit
  Authorization

  	
   

  	
  53

  
	
  8.

  	
   

  	
  GUARANTEES

  	
   

  	
  54

  
	
  8.1

  	
   

  	
  Guarantees

  	
   

  	
  54

  
	
  8.2

  	
   

  	
  Additional
  Guarantors

  	
   

  	
  54

  
	
  8.3

  	
   

  	
  Obligations
  Supported by the Guarantees

  	
   

  	
  55

  
	
  8.4

  	
   

  	
  Other
  Supported Obligations

  	
   

  	
  55

  
	
  8.5

  	
   

  	
  Limitation

  	
   

  	
  55

  
	
  9.

  	
   

  	
  CONDITIONS PRECEDENT

  	
   

  	
  56

  
	
  9.1

  	
   

  	
  Initial
  Advance under the Credit Facility

  	
   

  	
  56

  
	
  9.2

  	
   

  	
  Conditions
  Precedent to each Advance

  	
   

  	
  58

  
	
  9.3

  	
   

  	
  Waiver of
  Conditions Precedent

  	
   

  	
  58

  
	
  10.

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  58

  
	
  10.1

  	
   

  	
  Existence,
  Power and Authority

  	
   

  	
  58

  
	
  10.2

  	
   

  	
  Loan
  Documents

  	
   

  	
  59

  
	
  10.3

  	
   

  	
  Conduct of
  Business

  	
   

  	
  59

  
	
  10.4

  	
   

  	
  Litigation

  	
   

  	
  60

  
	
  10.5

  	
   

  	
  Financial
  Statements and Information

  	
   

  	
  60

  
	
  10.6

  	
   

  	
  Subsidiaries,
  etc.

  	
   

  	
  61

  
	
  10.7

  	
   

  	
  Title to
  Property

  	
   

  	
  61

  
	
  10.8

  	
   

  	
  Taxes

  	
   

  	
  61

  
	
  10.9

  	
   

  	
  Insurance

  	
   

  	
  61

  
	
  10.10

  	
   

  	
  No Material
  Adverse Effect

  	
   

  	
  61

  
	
  10.11

  	
   

  	
  Pension
  Matters

  	
   

  	
  61

  
	
  10.12

  	
   

  	
  Ranking and
  Priority

  	
   

  	
  62

  
	
  10.13

  	
   

  	
  Absence of
  Default

  	
   

  	
  62

  
	
  10.14

  	
   

  	
  Environment

  	
   

  	
  62

  



 


ii

















 


	
  10.15

  	
   

  	
  Mines

  	
   

  	
  63

  
	
  10.16

  	
   

  	
  Complete and
  Accurate Information

  	
   

  	
  63

  
	
  10.17

  	
   

  	
  Survival of
  Representations and Warranties

  	
   

  	
  64

  
	
  11.

  	
   

  	
  FINANCIAL COVENANTS

  	
   

  	
  64

  
	
  11.1

  	
   

  	
  Total Net
  Debt to EBITDA Ratio

  	
   

  	
  64

  
	
  11.2

  	
   

  	
  Current
  Ratio

  	
   

  	
  64

  
	
  11.3

  	
   

  	
  Tangible Net
  Worth

  	
   

  	
  64

  
	
  12.

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  65

  
	
  12.1

  	
   

  	
  Existence
  and Good Standing

  	
   

  	
  65

  
	
  12.2

  	
   

  	
  Permits

  	
   

  	
  65

  
	
  12.3

  	
   

  	
  Books and
  Records

  	
   

  	
  65

  
	
  12.4

  	
   

  	
  Property

  	
   

  	
  65

  
	
  12.5

  	
   

  	
  Material
  Contracts

  	
   

  	
  65

  
	
  12.6

  	
   

  	
  Financial
  Information

  	
   

  	
  66

  
	
  12.7

  	
   

  	
  Compliance
  with Applicable Law

  	
   

  	
  66

  
	
  12.8

  	
   

  	
  Insurance

  	
   

  	
  66

  
	
  12.9

  	
   

  	
  Payment of
  Taxes

  	
   

  	
  66

  
	
  12.10

  	
   

  	
  Access and
  Inspection

  	
   

  	
  66

  
	
  12.11

  	
   

  	
  Maintenance
  of Accounts

  	
   

  	
  67

  
	
  12.12

  	
   

  	
  Performance
  of Obligations

  	
   

  	
  67

  
	
  12.13

  	
   

  	
  Litigation

  	
   

  	
  67

  
	
  12.14

  	
   

  	
  Payment of Fees and Other Expenses

  	
   

  	
  67

  
	
  13.

  	
   

  	
  REPORTING AND NOTICE
  REQUIREMENTS

  	
   

  	
  68

  
	
  13.1

  	
   

  	
  Financial
  and Other Reporting

  	
   

  	
  68

  
	
  13.2

  	
   

  	
  Requirements
  for Notice

  	
   

  	
  70

  
	
  14.

  	
   

  	
  NEGATIVE COVENANTS

  	
   

  	
  70

  
	
  14.1

  	
   

  	
  Debt

  	
   

  	
  71

  
	
  14.2

  	
   

  	
  Liens

  	
   

  	
  71

  
	
  14.3

  	
   

  	
  Investments

  	
   

  	
  71

  
	
  14.4

  	
   

  	
  Distributions

  	
   

  	
  71

  
	
  14.5

  	
   

  	
  Asset
  Dispositions

  	
   

  	
  71

  
	
  14.6

  	
   

  	
  Derivative
  Instruments

  	
   

  	
  72

  
	
  14.7

  	
   

  	
  Line of
  Business

  	
   

  	
  72

  
	
  14.8

  	
   

  	
  Affiliate
  Transactions

  	
   

  	
  72

  
	
  14.9

  	
   

  	
  Subordinated
  Debt

  	
   

  	
  72

  
	
  14.10

  	
   

  	
  Liquidation
  and Amalgamation

  	
   

  	
  73

  
	
  15.

  	
   

  	
  EVENTS OF DEFAULT AND ENFORCEMENT

  	
   

  	
  74

  
	
  15.1

  	
   

  	
  Events of
  Default

  	
   

  	
  74

  
	
  15.2

  	
   

  	
  Remedies

  	
   

  	
  76

  
	
  15.3

  	
   

  	
  Notice

  	
   

  	
  77

  
	
  15.4

  	
   

  	
  Escrowed
  Funds for Bankers’ Acceptances

  	
   

  	
  77

  
	
  15.5

  	
   

  	
  Costs

  	
   

  	
  78

  
	
  15.6

  	
   

  	
  Relations
  with the Obligors

  	
   

  	
  78

  
	
  15.7

  	
   

  	
  Application
  of Proceeds

  	
   

  	
  78

  
	
  16.

  	
   

  	
  THE AGENT AND THE LENDERS

  	
   

  	
  79

  
	
  16.1

  	
   

  	
  Authorization
  of Agent

  	
   

  	
  79

  



 


iii

















 


	
  16.2

  	
   

  	
  Agent’s
  Responsibility

  	
   

  	
  79

  
	
  16.3

  	
   

  	
  Rights of
  Agent as Lender

  	
   

  	
  81

  
	
  16.4

  	
   

  	
  Indemnity by
  Lenders

  	
   

  	
  81

  
	
  16.5

  	
   

  	
  Notice by
  Agent to Lenders

  	
   

  	
  82

  
	
  16.6

  	
   

  	
  Protection
  of Agent - Advances and Payments

  	
   

  	
  82

  
	
  16.7

  	
   

  	
  Notice by
  Lenders to Agent

  	
   

  	
  82

  
	
  16.8

  	
   

  	
  Sharing
  Among the Lenders

  	
   

  	
  83

  
	
  16.9

  	
   

  	
  Procedure
  With Respect to Advances

  	
   

  	
  84

  
	
  16.10

  	
   

  	
  Accounts
  Kept by Each Lender

  	
   

  	
  84

  
	
  16.11

  	
   

  	
  Binding
  Determinations

  	
   

  	
  85

  
	
  16.12

  	
   

  	
  Amendment of
  Article 16

  	
   

  	
  85

  
	
  16.13

  	
   

  	
  Decisions,
  Amendments and Waivers of the Lenders

  	
   

  	
  85

  
	
  16.14

  	
   

  	
  Authorized
  Waivers, Variations and Omissions

  	
   

  	
  85

  
	
  16.15

  	
   

  	
  Provisions
  for the Benefit of Lenders Only

  	
   

  	
  85

  
	
  16.16

  	
   

  	
  Assignment
  by Agent to an Affiliate

  	
   

  	
  86

  
	
  16.17

  	
   

  	
  Collective
  Action of the Lenders

  	
   

  	
  86

  
	
  16.18

  	
   

  	
  Resignation
  of Agent

  	
   

  	
  86

  
	
  17.

  	
   

  	
  CURRENCY CONVERSION, ETC.

  	
   

  	
  87

  
	
  17.1

  	
   

  	
  Rules of
  Conversion

  	
   

  	
  87

  
	
  17.2

  	
   

  	
  Determination
  of Equivalent Amount in another Currencies

  	
   

  	
  88

  
	
  18.

  	
   

  	
  ASSIGNMENT

  	
   

  	
  88

  
	
  18.1

  	
   

  	
  Assignment
  by the Borrower

  	
   

  	
  88

  
	
  18.2

  	
   

  	
  Assignments
  and Transfers by the Lenders

  	
   

  	
  88

  
	
  18.3

  	
   

  	
  Register

  	
   

  	
  90

  
	
  18.4

  	
   

  	
  Electronic
  Execution of Assignments

  	
   

  	
  90

  
	
  18.5

  	
   

  	
  Participations

  	
   

  	
  91

  
	
  18.6

  	
   

  	
  Limitations
  Upon Participant Rights

  	
   

  	
  91

  
	
  18.7

  	
   

  	
  Promissory
  Notes

  	
   

  	
  91

  
	
  19.

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  91

  
	
  19.1

  	
   

  	
  Notices

  	
   

  	
  91

  
	
  19.2

  	
   

  	
  Amendment
  and Waiver

  	
   

  	
  92

  
	
  19.3

  	
   

  	
  Independent
  Engineer and Other Consultants

  	
   

  	
  93

  
	
  19.4

  	
   

  	
  Entire
  Agreement

  	
   

  	
  93

  
	
  19.5

  	
   

  	
  Indemnification
  and Set-Off

  	
   

  	
  93

  
	
  19.6

  	
   

  	
  Benefit of
  Agreement

  	
   

  	
  94

  
	
  19.7

  	
   

  	
  Counterparts

  	
   

  	
  94

  
	
  19.8

  	
   

  	
  This
  Agreement to Govern

  	
   

  	
  94

  
	
  19.9

  	
   

  	
  Applicable
  Law

  	
   

  	
  94

  
	
  19.10

  	
   

  	
  Severability

  	
   

  	
  94

  
	
  19.11

  	
   

  	
  Further
  Assurances

  	
   

  	
  94

  
	
  19.12

  	
   

  	
  Good Faith
  and Fair Consideration

  	
   

  	
  95

  
	
  19.13

  	
   

  	
  Responsibility
  of the Lenders

  	
   

  	
  95

  
	
  19.14

  	
   

  	
  Indemnity

  	
   

  	
  95

  
	
  19.15

  	
   

  	
  Confidentiality

  	
   

  	
  96

  
	
  19.16

  	
   

  	
  Reinstatement

  	
   

  	
  97

  
	
  19.17

  	
   

  	
  Submission
  to Jurisdiction

  	
   

  	
  97

  



 


iv

















 


	
  19.18

  	
   

  	
  Waiver of
  Venue

  	
   

  	
  98

  
	
  19.19

  	
   

  	
  Waiver of
  Jury Trial

  	
   

  	
  98

  
	
  19.20

  	
   

  	
  Language

  	
   

  	
  98

  
	
  19.21

  	
   

  	
  Third Party
  Beneficiaries

  	
   

  	
  98

  
	
  19.22

  	
   

  	
  Formal Date

  	
   

  	
  99

  



EXHIBIT A - COMMITMENTS


EXHIBIT B - ASSIGNMENT AND ASSUMPTION
AGREEMENT


EXHIBIT C - LOAN MARKET DATA TEMPLATE


EXHIBIT D - NOTICE OF BORROWING AND
CERTIFICATE


EXHIBIT E - COMPLIANCE CERTIFICATE


EXHIBIT F - ADDITIONAL GUARANTOR AGREEMENT


SCHEDULE A - MATERIAL SUBSIDIARIES


SCHEDULE B - PERMITTED LIENS


SCHEDULE C - OTHER SUPPORTED OBLIGATIONS


SCHEDULE D - LITIGATION


SCHEDULE E - EQUITY INTERESTS AND
ORGANIZATION STRUCTURE


 


v

















 


Execution Version


 


CREDIT
AGREEMENT entered into as of the 4th
day of September, 2008


 


B E T W E E N:


 


AGNICO-EAGLE MINES
LIMITED


as Borrower


 


-and-


 


1715495 ONTARIO INC.


1641315 ONTARIO INC.


AGNICO-EAGLE
(DELAWARE) L.L.C.


AGNICO-EAGLE
(DELAWARE) II L.L.C.


AGNICO-EAGLE
(DELAWARE) III L.L.C.


AGNICO-EAGLE SWEDEN
AB


AGNICO-EAGLE AB


RIDDARHYTTAN
RESOURCES AB


AGNICO EAGLE MEXICO
S.A. DE C.V.


as Guarantors


 


-and-


 


THE LENDERS LISTED ON
EXHIBIT A


TO THIS AGREEMENT
FROM TIME TO TIME


as Lenders


 


-and-


 


THE BANK OF NOVA
SCOTIA,


as Administrative Agent


 


WHEREAS the Borrower wishes to borrow certain amounts from the Lenders and
the Lenders have agreed to lend such amounts to the Borrower, subject to and in
accordance with the provisions hereof;


 


NOW
THEREFORE for valuable consideration
and intending to be legally bound by this Agreement, the parties agree as
follows:


 


1.                                       INTERPRETATION


 


1.1           Definitions


 


The following
words and expressions, when used in this Agreement, unless the contrary is
stipulated, have the following meaning:


 


1.1.1                                                “Acceptance Date” has
the meaning defined in Section 5.1.1;


 














 


1.1.2                “Advance” means any advance by the Lenders
under this Agreement including (a) direct advances of funds by way of
Prime Rate Advances, US Base Rate Advances and Libor Advances, (b) indirect
advances by way of BA Advances, (c) any deemed “Advance” hereunder and (d) any
renewal, extension, rollover or conversion of any “Advance”; and any reference
relating to the amount of “Advances” outstanding under this Agreement means the
sum (without duplication) of all outstanding Prime Rate Advances, US Base Rate
Advances and Libor Advances, plus the face amount of all outstanding Bankers’
Acceptances;


 


1.1.3                “Affiliate” means, with respect to a
specified Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control
with the Person specified;


 


1.1.4                “Agent” means The Bank of Nova Scotia, in
its capacity as administrative agent for the Lenders;


 


1.1.5                “Agreement”, “herein”, “hereby”,
“hereto” “hereunder” or similar expressions mean this
agreement, the recitals hereto and any schedules hereto, as amended,
supplemented, restated and replaced from time to time in accordance with the
provisions hereof, and not any particular article, section, subsection,
paragraph or clause or other portion hereof;


 


1.1.6                “Applicable Law” means (a) any domestic
or foreign statute, law (including common and civil law), treaty, code,
ordinance, rule, regulation, restriction or by-law (zoning or otherwise), (b) any
judgment, order, writ, injunction, decision, ruling, decree or award or (c) any
regulatory policy, practice, guideline or directive; in each case, applicable
to and binding on the Person referred to in the context in which the term is
used or the Property of such Person as a legally enforceable requirement;


 


1.1.7                “Applicable Margin” means the relevant
percentage set forth in the relevant row of the table in Section 2.7.1;


 


1.1.8                “Applicable Percentage” means, with respect
to any Lender, the percentage of the total Commitments represented by such
Lender’s Commitment; provided however, that if the Commitments have terminated
or expired, the “Applicable Percentage” shall be the percentage of the total
outstanding Advances;


 


1.1.9                “Approved Fund” means any Person (other than
a natural Person) that (a) is or will be engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the Ordinary Course and (b) is administered or managed by a
Lender, an


 


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Affiliate of a Lender or an entity or an Affiliate of an entity that
administers or manages a Lender;


 


1.1.10              “Arm’s Length” has the meaning given to that
term for the purposes of the Income Tax Act
(Canada) on the date hereof;


 


1.1.11              “Asset Disposition” means, with respect to
any Obligor, the sale, lease, transfer, assignment or other disposition or
alienation of all or any part of the Property now held or subsequently acquired
by it (including Equity Interests), or the entering into of any sale-leaseback
transaction with respect to its Property or any part thereof;


 


1.1.12              “Assignee” means an Eligible Assignee who
has entered into an Assignment and Assumption Agreement;


 


1.1.13              “Assignment” means an assignment of all or a
portion of a Lender’s rights and obligations under this Agreement in accordance
with Sections 18.2 and 18.3;


 


1.1.14              “Assignment and Assumption Agreement” means
an agreement substantially in the form of Exhibit B;


 


1.1.15              “Associate” has the meaning given to that
term in the Business Corporations Act
(Ontario) on the date hereof;


 


1.1.16              “Available Proceeds” has the meaning defined
in Section 5.2.3.4;


 


1.1.17              “BA Advance” means an Advance in Canadian
Dollars which the Borrower has elected to borrow by way of Bankers’
Acceptances;


 


1.1.18              “BA Lender” means a Lender which is a bank
that accepts bankers’ acceptances issued in Canada;


 


1.1.19              “BA Proceeds” means (a) for a Bankers’
Acceptance, an amount calculated on the applicable Drawdown Date by
multiplying: (i) the face amount of the Bankers’ Acceptance by (ii) the
following fraction:


 


	
   

  	
  1

  	
   

  
	
   

  	
  (1+
  (Bankers’ Acceptance Discount Rate x Designated Period (in days) ÷365))

  	
   

  



 


with such fraction being rounded up or down to the fifth decimal place
and .00005 being rounded up, and (b) with respect to Non-BA Lenders, the
face amount of Discount Notes issued to them, less a discount established in
the same manner as provided in clause (a) above (with references to “Bankers’ Acceptances” being replaced by
references to “Discount Notes”);


 


1.1.20              “BA Request” has the meaning defined in
subsection 5.1.1;


 


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1.1.21              “Bankers’ Acceptance” means a non-interest
bearing draft or bill of exchange in Canadian Dollars drawn by the Borrower and
accepted by a Lender in accordance with the provisions of Article 5 and
includes a Discount Note where the context permits.  In cases where the Lenders elect to use a
clearinghouse as contemplated by the Depository
Bills and Notes Act (Canada), “Bankers’ Acceptance” shall mean a
depository bill (as defined in such Act) in Canadian Dollars signed by the
Borrower and accepted by a Lender. 
Drafts or bills of exchange that become depository bills may
nevertheless be referred to herein as “drafts”;


 


1.1.22              “Bankers’ Acceptance Discount Rate” means,
as determined by the Agent (a) in respect of Bankers’ Acceptances to be
purchased by the Lenders which are Schedule I banks under the Bank Act
(Canada), the average rate for Canadian Dollar bankers’ acceptances (rounded up
to the nearest 1/100 of 1%) having Designated Periods of one, two, three, or
six months quoted on Reuters Service, page CDOR “Canadian Interbank Bid BA
Rates” (the “CDOR Rate”), having
an identical Designated Period to that of the Bankers’ Acceptances to be issued
on such day and (b) in respect of Bankers’ Acceptances to be purchased by
the Lenders which are Schedule II banks under the Bank Act (Canada) or Schedule
III banks under the Bank Act (Canada) which are not subject to the restrictions
and requirements referred to in Section 524(2) thereof, and in
respect of Discount Notes, the average of the rates for Canadian Dollar bankers’
acceptances quoted by the Schedule II Reference Banks (rounded up to the
nearest 1/100 of 1%), provided that such average rate may not exceed the rate
determined under clause (a) by more than 0.10% per annum (in each of cases
(a) and (b), the “Discount Rates”).  In all cases, the Discount Rates shall be
quoted at approximately 10:00 a.m. on the Drawdown Date calculated on the
basis of a year of 365 days.


 


In the absence of any such determination, the “Bankers’ Acceptance
Discount Rate” which would have been determined in accordance with clause (a) or
clause (b) above, respectively, shall be equal to the average of the
discount rates for bankers’ acceptances (rounded up to the nearest 1/100 of 1%)
of:


 


(i)    in the case of clause (a), the Schedule I Reference
Lenders; and


 


(ii)   in the case of clause (b), the Schedule II Reference
Banks;


 


calculated on the basis of a year of 365 days, established in accordance
with their normal practices at 10:00 a.m. on the Drawdown Date, for
bankers’ acceptances accepted by the Schedule I Reference Lenders or the
Schedule II Reference Banks, as the case may be, in amounts equal to the amount
of the BA Advances to be made that day by the


 


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Schedule I Reference Lenders or the Schedule II Reference Banks, as the
case may be, having an identical Designated Period to that of the proposed
Bankers’ Acceptances to be issued on such day, provided that the “Bankers’
Acceptance Discount Rate” replacing the rate which would have been determined
under clause (b) above shall not exceed the “Bankers’ Acceptance Discount
Rate” which would have been determined in accordance with clause (a) above
by more than 0.10% per annum;


 


1.1.23              “Banking Day” means any Business Day except
any Business Day in New York, New York which is a holiday or a day upon which
banks are authorized or required by Applicable Law or by local proclamation to
be closed in New York, New York, provided that, for LIBOR Advances, such
Business Day is also a day on which prime banks accept deposits in London,
England in the London interbank market;


 


1.1.24              “Borrower”
means Agnico-Eagle Mines Limited, an Ontario corporation;


 


1.1.25              “Branch” means the Global Wholesale Services
– Loan Operations department of The Bank of Nova Scotia at 720 King Street
West, Third Floor, Toronto, Ontario, M5V 2T3 or such other branch as is
designated from time to time by the Agent;


 


1.1.26              “Business Day” means any day, except
Saturdays, Sundays and any other day which in Toronto, Ontario or Montreal,
Quebec is a holiday or a day upon which banks are authorized or required by
Applicable Law or by local proclamation to be closed in Toronto, Ontario or
Montreal, Quebec;


 


1.1.27              “Canadian Dollar-Libor Funded Lenders” means
Barclays Bank PLC, Commonwealth Bank of Australia and any other Lender that
funds its Canadian dollars from the London interbank market and which the
Borrower has accepted in writing as a “Canadian Dollar-Libor Funded Lender”,
and “Canadian Dollar-Libor Funded Lender” means any of the “Canadian
Dollar-Libor Funded Lenders”;


 


1.1.28              “Canadian Dollar-Libor Term” means the
interest period equal to the shortest interest period displayed on Libor01 Page of
Reuters for C$1,000,000 at or about 11:00 a.m. (London time) on the date
of determination;


 


1.1.29              “Canadian Dollars” or “C$” means the lawful currency of Canada;


 


1.1.30              “Capital Lease” means any lease which is
required to be capitalized on a balance sheet of the lessee in accordance with
GAAP;


 


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1.1.31              “Capital Lease Obligations” means, as to any
Person, an obligation of such Person to pay rent or other amounts under a
Capital Lease and the amount of such obligation shall be the capitalized amount
thereof, determined in accordance with GAAP;


 


1.1.32              “Capital Reorganization” means any change in
the issued and outstanding Equity Interests of a Person involving the
reclassification of such Equity Interests or the conversion of such Equity
Interests into, or exchange of such Equity Interests for, cash, securities or
other property;


 


1.1.33              “Cash Equivalents” means, as of the date of
any determination thereof, instruments of the following types:


 


1.1.33.1                    obligations
of, or unconditionally guaranteed by, the governments of Canada or the USA, or
any agency of either of them backed by the full faith and credit of the
governments of Canada or the USA, respectively, maturing not more than one year
from the date of acquisition;


 


1.1.33.2                    marketable
direct obligations of the governments of one of the provinces of Canada, one of
the states of the USA, or any agency thereof, or of any county, department,
municipality or other political subdivision of Canada or the USA, the payment
or guarantee of which constitutes a full faith and credit obligation of such
province, state, municipality or other political subdivision, which matures not
more than one year from the date of acquisition and which, at the time of acquisition,
is accorded a short-term credit rating of at least A-1 by S&P, at least P-1
by Moody’s or at least R-1(middle) by DBRS;


 


1.1.33.3                    commercial
paper, bonds, notes, debentures and bankers’ acceptances issued by a Person
residing in Canada or the USA and not referred to in subsections 1.1.33.1,
1.1.33.2 or 1.1.33.4, and maturing not more than one year from the date of
issuance which, at the time of acquisition, is accorded a short-term credit
rating of at least A-1 by S&P, at least P-1 by Moody’s or at least
R-1(middle) by DBRS, and, in respect of Canadian asset-backed commercial paper
that is based on a DBRS rating, provided further that such asset-backed
commercial paper is issued by a Person appearring on the list of “Global
Liquidity Standard for ABCP Issuers” published and maintained by DBRS;


 


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1.1.33.4                    (a) certificates
of deposit maturing not more than one year from the date of issuance thereof,
issued by a bank or trust company organized under the laws of the USA, any
state thereof, or Canada or any province thereof or (b) Principal Currency
certificates of deposit maturing not more than one year from the date of
acquisition and issued by a bank in a Principal Jurisdiction; in all cases
having capital, surplus and undivided profits aggregating at least
US$500,000,000 (or the equivalent thereof in Canadian Dollars or in the
currency of such Principal Jurisdiction) and whose short-term credit rating is,
at the time of acquisition, accorded a short-term credit rating of at least A-1
by S&P, at least P-1 by Moody’s or at least R-1(middle) by DBRS;


 


1.1.33.5                    any repurchase
agreement having a term of 30 days or less entered into with any Lender, any
Other Lender or any Person satisfying the criteria set forth in subsection
1.1.33.4 which is secured by a fully perfected security interest in any
obligation of the type described in subsection 1.1.33.1 or 1.1.33.2 and has a
market value at the time such repurchase agreement is entered into of not less
than 100% of the repurchase obligation of such commercial banking institution
thereunder; and


 


1.1.33.6                    investments in
any security issued by an investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C.
80a-8) that is a money market fund in compliance with all applicable
requirements of SEC Rule 2a-7 (17 CFR 270.2a-7);


 


1.1.34              “CDS” has the meaning defined in Section 5.11;


 


1.1.35              “CDS & Co.” has the meaning defined
in Section 5.11;


 


1.1.36              “Change in Law” means the occurrence, after
the date of this Agreement, of any of the following: (a) the adoption or
taking effect of any Applicable Law, (b) any change in any Applicable Law
or in the administration, interpretation or application thereof by any
Governmental Authority, including any such change resulting from any quashing
by a Governmental Authority of an interpretation of any Applicable Law or (c) the
making or issuance of any Applicable Law by any Governmental Authority;


 


1.1.37              “Change of Control” means:


 


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(a)           the acquisition,
directly or indirectly, by any means whatsoever, by any Person, or group of
Persons acting jointly or in concert, (collectively, an “offeror”) of beneficial ownership of, or
the power to exercise control or direction over, or securities convertible or
exchangeable into, any securities of the Borrower carrying in aggregate
(assuming the exercise of all such conversion or exchange rights in favour of
the offeror) more than 50% of the aggregate votes represented by the voting
stock then issued and outstanding or otherwise entitling the offeror to elect a
majority of the board of directors of the Borrower; or


 


(b)           the replacement by way
of election or appointment at any time of one-half or more of the total number
of the then incumbent members of the board of directors of the Borrower, or the
election or appointment of new directors comprising one-half or more of the
total number of members of the board of directors in office immediately
following such election or appointment; unless, in any such case, the
nomination of such directors for election or their appointment is approved by
the board of directors of the Borrower in office immediately preceding such
nomination or appointment in circumstances where such nomination or appointment
is made other than as a result of a dissident public proxy solicitation,
whether actual or threatened;


 


1.1.38              “Claim” has the meaning defined in Section 19.14;


 


1.1.39              “Closing Date” means the date on which the
initial Advance is made;


 


1.1.40              “Commitment” means the portion of the Credit
Facility which a Lender has agreed to Advance to the Borrower as set out in Exhibit A
and, where the context requires, the maximum amount of Advances which such
Lender has covenanted to make, which Exhibit shall be amended and
distributed to all parties by the Agent from time to time as Applicable
Percentages change in accordance with this Agreement;


 


1.1.41              “Compliance Certificate” means a certificate
in the form of Exhibit E executed by the chief financial officer or
another senior officer of the Borrower;


 


1.1.42              “Consolidated Hedging Exposure” means the
aggregate of all amounts that would be payable to all Persons by the Borrower
and its Subsidiaries or to the Borrower and its Subsidiaries, on the date of


 


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determination, taking into account all
legally enforceable netting arrangements, pursuant to each ISDA Master
Agreement between the Borrower and each such Person and each Subsidiary and
each such Person, as if all Derivative Instruments under such ISDA Master
Agreements were being terminated on that day;


 


1.1.43              “Constating Documents” means, with respect
to any Person, its articles or certificate of incorporation, amendment,
amalgamation, continuance or association, memorandum of association,
declaration of trust, partnership agreement, limited liability company
agreement or other similar document, as applicable, and all unanimous
shareholder agreements, other shareholder agreements, voting trust agreements
and similar arrangements applicable to the Person’s Equity Interests which bind
such Person, and by-laws, all as amended, supplemented, restated or replaced
from time to time;


 


1.1.44              “Contingent Obligation” of any Person means
all contingent liabilities required to be included or noted in the financial
statements of such Person in accordance with GAAP;


 


1.1.45              “Contract” means any agreement, contract,
indenture, lease, deed of trust, licence, option, undertaking, promise or any
other commitment or obligation, whether oral or written, express or implied,
other than a Permit;


 


1.1.46              “Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
Contract or otherwise and “Controlling”
and “Controlled” have
corresponding meanings;


 


1.1.47              “Core Business” means the development,
construction and operation of mining properties and any operation relating to
mining, including the manufacturing, processing or refining of products
produced from mining operations and properties, and the sale of products
produced from or in connection with mining operations and properties, and the
financing related thereto;


 


1.1.48              “Credit Facility” has the meaning defined in
Section 2.1.


 


1.1.49              “Current Ratio” means, in respect of the Borrower, at the
date of determination, the ratio calculated by dividing the Borrower’s then
current assets by its then current liabilities as the same would be shown on a
balance sheet of the Borrower prepared on a consolidated basis in accordance
with GAAP consistently applied;


 


1.1.50              “DBRS” means DBRS Limited;


 


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1.1.51              “Debt” means, with respect to a Person,
without duplication, the aggregate of the following amounts, each calculated in
accordance with GAAP, unless the context otherwise requires:


 


1.1.51.1                    all
obligations that would be considered to be indebtedness for borrowed money
(including, without limitation, by way of overdraft and drafts or orders
accepted representing extensions of credit), and all obligations (whether or
not with respect to the borrowing of money) that are evidenced by bonds,
debentures, notes or other similar instruments;


 


1.1.51.2                    reimbursement
obligations under bankers’ acceptances and contingent obligations of such
Person in respect of any letter of credit, letters of guarantee, bank
guarantee, surety bond, performance bond and similar instruments;


 


1.1.51.3                    all
liabilities upon which interest charges are paid or are customarily paid by
that Person;


 


1.1.51.4                    any Equity
Interests of that Person (or of any Subsidiary of that Person) which Equity
Interests, by their terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the option of
the holder thereof, in whole or in part, prior to the Maturity Date, for cash
or securities constituting Debt (read without reference to this subsection
1.1.51.4) unless the issuer of such Equity Interests has by the terms of such
Equity Interests the option of repaying such amounts or retiring or exchanging
such Equity Interests with Equity Interests not convertible or exchangeable or
redeemable for Debt (read without reference to this subsection 1.1.51.4);


 


1.1.51.5                    all Capital
Lease Obligations, obligations under Synthetic Leases, obligations under sale
and leaseback transactions (unless the lease component of the sale and
leaseback transaction is an operating lease) and indebtedness under
arrangements relating to purchase money liens and other obligations in respect
of the deferred purchase price of property and services; and


 


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1.1.51.6                    the amount of
the contingent obligations under any guarantee (other than by endorsement of
negotiable instruments for collection or deposit in the Ordinary Course) or
other agreement assuring payment of any obligation in any manner of any part or
all of an obligation of another Person of the type included in subsections
1.1.51.1 through 1.1.51.5 above;


 


other than trade payables incurred in the Ordinary Course and payable
in accordance with customary practices;


 


1.1.52              “deemed interest period” has the meaning
defined in Section 4.9.1;


 


1.1.53              “Default” means an event or circumstance,
the occurrence or non-occurrence of which would, with the giving of a notice,
lapse of time or combination thereof or other condition subsequent, constitute
an Event of Default;


 


1.1.54              “depository bills” has the meaning defined
in Section 5.11;


 


1.1.55              “Derivative Instrument” means an agreement
entered into from time to time by a Person in order to control, fix or regulate
currency exchange, commodity price or interest rate fluctuations, including a
rate swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions and
any combination of these transactions);


 


1.1.56              “Derivative Obligations” means the Obligor
Hedging Exposure owed to one or more Lenders or Affiliates of a Lender under
Derivative Instruments;


 


1.1.57              “Designated Period” means, with respect to a
Libor Advance or a BA Advance, a period designated by the Borrower in
accordance with, as applicable, Sections 3.3, 5.1 and 5.4;


 


1.1.58              “Discount Note” means a non-interest bearing
promissory note denominated in Canadian Dollars issued by the Borrower to a
Non-BA Lender, such note to be in the form customarily used by such Non-BA
Lender;


 


1.1.59              “Distribution” means:


 


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1.1.59.1                                                          the retirement, redemption, retraction, purchase, or other
acquisition of any Equity Interests of an Obligor or Related Party Debt of an
Obligor;


 


1.1.59.2                                                          the declaration or payment of any dividend, return of capital or
other distribution (in cash, securities or other Property or otherwise) of, on
or in respect of, any Equity Interests of an Obligor;


 


1.1.59.3                                                          any payment or repayment of or on account of Related Party Debt of
an Obligor, including in respect of principal, interest, bonus, premium or
otherwise;


 


1.1.59.4                                                          any payment of management or similar fees to any Related Party which
is not an Obligor; and


 


1.1.59.5                                                          any other payment or distribution (in cash, securities or other
Property, or otherwise) of, on or in respect of any Equity Interests of an
Obligor or Related Party Debt of an Obligor;


 


1.1.60                                       “Drawdown Date” means
the date, which shall be a Business Day, of any Advance and includes, for
avoidance of doubt, the date of any rollover, conversion, renewal or extension
of any existing Advance;


 


1.1.61                                       “EBITDA” means, for any
period, on a consolidated basis, an amount equal to the Borrower’s revenue from
the sale of product from mines, less:


 


1.1.61.1                                                          onsite and offsite cash operating costs for such period;


 


1.1.61.2                                                          cash general and administrative expenses for such period;


 


1.1.61.3                                                          cash capital taxes for such period; and


 


1.1.61.4                                                          cash reclamation expenditures for such period;


 


each component of which is to be calculated
in accordance with GAAP consistently applied;


 


1.1.62                                       “Eligible Assignee”
means (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund, and (d) any other Person (other than a natural person) in
respect of each of which the consent of any party whose consent is required
under subsection 18.2.2 has been obtained; provided that notwithstanding the
foregoing, “Eligible Assignee”
shall not include any Obligor or any Affiliate of an Obligor;


 


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1.1.63                                       “Environmental Claims”
means any claims (including, without limitation, third party claims, whether
for personal injury or real or personal property damage or otherwise), actions,
administrative proceedings (including informal proceedings), judgments, Liens,
damages, punitive damages, penalties, fines, costs, liabilities (including sums
paid in settlement of claims), interest or losses, including reasonable legal
fees and expenses (including any such fees and expenses incurred in enforcing
the Loan Documents or collecting any sums due under same), consultant fees, and
expert fees, together with all other costs and expenses of any kind or nature
that arise directly or indirectly from or in connection with any Environmental
Laws, or any failure or breach in respect thereof, that is or allegedly is
applicable to any Obligor, its respective Properties, operations or actions to
the extent the same arose out of the relationships and arrangements created and
contemplated hereby;


 


1.1.64                                       “Environmental Laws”
means all Applicable Laws, now or hereafter in effect, to the extent relating
to pollution or protection of the environment or property and public health and
relating to (a) emissions, discharges, releases or threatened releases of
any Hazardous Substance into the environment (including ambient air, surface
water, ground water, land surface or subsurface strata), (b) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport, removal or handling of any Hazardous Substance, (c) underground
storage tanks and related piping, and emissions, discharges and releases or
threatened releases of Hazardous Substances and (d) the modification,
maintenance, use or removal of any land, wetland or waterway (including
anything beneath the surface thereof);


 


1.1.65                                       “Equity Interests”
means, with respect to any Person, all shares, interests, units, trust units,
partnership, membership or other interests, participations or other equivalent
rights in the Person’s equity or capital, however designated, whether voting or
non voting, whether now outstanding or issued after the Closing Date, together
with warrants, options or other rights to acquire any such equity interests of
such Person and securities convertible into or exchangeable for any such equity
interests of such Person;


 


1.1.66                                       “Euro” or “€” means the single currency, denominated
in Euro units, of certain member states of the European Union that adopt such
single currency as its currency in accordance with legislation of the European
Union relating to European Economic and Monetary Union;


 


1.1.67                                       “Event of Default”
means an event or circumstance described in Section 15.1;


 


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1.1.68                                       “Excluded Taxes” means,
with respect to the Agent, any Lender or any other recipient of any payment to
be made by or on account of any obligation under the Loan Documents, (a) taxes
imposed on or measured by its overall net income or capital, and franchise
taxes imposed on it (in lieu of net income taxes) by the jurisdiction (or any
political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located, or in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes or any similar tax imposed by the jurisdiction in which the
applicable lending office of the Lender is located and (c) in the case of
any payment made by the Borrower to a Foreign Lender (other than (i) an
Assignee pursuant to a request by the Borrower under subsection 6.5.2, (ii) an
Assignee pursuant to an Assignment made when an Event of Default has occurred
which is continuing or (iii) any other Assignee to the extent that the
Borrower has expressly agreed that any withholding tax shall be an Indemnified
Tax), any withholding tax that is imposed during the time such Foreign Lender
is a party hereto (or designates a new lending office) on amounts payable from
time to time by the Borrower to such Foreign Lender, except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts with respect to such withholding tax pursuant to Section 6.3.  For greater certainty, for purposes of item (c) above,
a withholding tax includes any Tax that a Foreign Lender is required to pay
pursuant to Part XIII of the Income Tax
Act (Canada) or any successor provision thereto;


 


1.1.69                                       “Federal Funds Effective Rate”
means, for any period, a fluctuating interest rate per annum equal, for each
day during such period, to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by USA federal funds brokers as published for such day (or, if such day is not
a Banking Day, for the immediately preceding Banking Day) by the Federal
Reserve Bank of New York or, for any day on which such rate is not so published
for such day by the Federal Reserve Bank of New York, the average of the
quotations for such day for such transactions received by the Agent from three
Federal Funds brokers of recognized standing selected by the Agent.  If for any reason the Agent shall have
determined, acting reasonably, that it is unable to ascertain the Federal Funds
Effective Rate for any reason, including without limitation, the inability or
failure of the Agent to obtain sufficient bids or publications in accordance
with the terms hereof, The Bank of Nova Scotia’s announced US Base Rate will
apply;


 


1.1.70                                       “Fee Letter” means the
confidential letter agreement dated September 4, 2008 between the Borrower
and The Bank of Nova Scotia, as Lead 


 


14

















 


Arranger and as Agent,
providing for the payment of certain fees in relation to the Credit Facility;


 


1.1.71                                       “First Credit Agreement”
means the
credit agreement dated as of January 10, 2008 between Agnico-Eagle Mines
Limited, as borrower, the guarantors from time to time party thereto, The Bank
of Nova Scotia, as administrative agent and co-lead arranger, Société Générale
(Canada Branch), as co-lead arranger, and the lenders from time to time party
thereto;


 


1.1.72                                       “First Currency” has
the meaning defined in Section 17.1;


 


1.1.73                                       “First Percentage”
means the percentage of the aggregate Commitments (as such term is defined in
the First Credit Agreement on the date hereof) (excluding any such Commitments
which have been suspended under Section 6.1 of the First Credit Agreement
(or any such amended provision of the First Credit Agreement having the same
effect)) which have been utilized and are outstanding as Advances (as such term
is defined in the First Credit Agreement on the date hereof);


 


1.1.74                                       “Foreign Lender” means
any Lender that is not organized under the laws of Canada, or a province or
territory thereof, and that is not otherwise considered or deemed to be
resident in Canada for income tax or withholding tax purposes;


 


1.1.75                                       “FX Rate” has the
meaning defined in Section 17.1;


 


1.1.76                                       “GAAP” means the
generally accepted accounting principles in effect from time to time in the
USA;


 


1.1.77                                       “Goldex Mine” means the
Borrower’s Goldex mining operations and property located in or around the City
of Val-d’Or, Quebec, as presently constituted and as the same may be developed
or expanded from time to time, and any replacements, substitutions and
modifications thereof permitted hereunder, together with all easements, rights
of way, rights, titles or interests of every kind and description which the
Borrower has rights to, or otherwise owns or controls, relating to or acquired
in connection with such operations, properties and claims;


 


1.1.78                                       “Governmental Authority”
means the government of Canada or any other nation, or of any political
subdivision thereof, whether provincial, state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, including
any supra-national bodies such as the European Union or the European 


 


15

















 


Central Bank and including a
Minister of the Crown, Superintendent of Financial Institutions or other
comparable authority or agency;


 


1.1.79                                       “Guarantees” means the
guarantees delivered or required to be delivered under Article 8;


 


1.1.80                                       “Guarantor Obligations”
means the obligations of the Guarantors under the Loan Documents;


 


1.1.81                                       “Guarantors” means the
Material Subsidiaries that are required to deliver a guarantee under Article 8
from time to time;


 


1.1.82                                       “Hazardous Substances”
shall mean any (a) substance, waste, liquid, gaseous or solid matter,
fuel, micro-organism, sound, vibration, ray, heat, odour, radiation, energy
vector, plasma and organic or inorganic matter which is, alone or in any
combination, hazardous, hazardous waste, hazardous material, toxic, a
pollutant, a deleterious substance, a contaminant or a source of pollution or
contamination and (b) any other chemical, material or substance, the
exposure to which is prohibited, limited or regulated by any Governmental
Authority;


 


1.1.83                                       “Indemnified Party” has
the meaning defined in Section 19.14;


 


1.1.84                                       “Indemnified Taxes”
means Taxes other than Excluded Taxes;


 


1.1.85                                       “Information” has the
meaning defined in Section 19.15.2;


 


1.1.86                                       “Insolvency Proceeding”
has the meaning defined in Section 15.1.11;


 


1.1.87                                       “Intellectual Property”
means patents, trademarks, service marks, trade names, copyrights, trade
secrets, industrial designs and other similar rights;


 


1.1.88                                       “Intercreditor Agreement”
means an intercreditor agreement between the Agent and any holder of
Subordinated Debt, in form and substance acceptable to the Lenders, acting
reasonably;


 


1.1.89                                       “Interest Payment Date”
means the last Business Day of each month or, in relation to any Libor Advance,
a day on which interest is required to be paid in accordance with Section 4.4;


 


1.1.90                                       “Investments” means (a) any
investment in or purchase of or other acquisition of any Equity Interests of
any Person, (b) any purchase or other acquisition of a business or
undertaking or division of any Person, including Property comprising the
business, undertaking or division of any Person or (c) any loan or advance
to, or guarantee of, or the provision of any other financial assistance of any
kind to, or 


 


16

















 


otherwise becoming liable for,
any debts, liabilities or obligations of, any Person;


 


1.1.91                                       “ISDA Master Agreement”
means the 1992 ISDA Master Agreement (Multi-Currency - Cross Border) or the
2002 ISDA Master Agreement, each as published by the International Swaps and
Derivatives Association, Inc. and, where the context permits or requires,
includes all schedules, supplements, annexes and confirmations attached thereto
or incorporated therein, as such agreement may be amended, supplemented or
replaced from time to time;


 


1.1.92                                       “Kittila Mine” means
Agnico-Eagle AB’s Kittila mining operations and property located in or around
Kittila, Finland, as presently constituted and as the same may be developed or
expanded from time to time, and any replacements, substitutions and
modifications thereof permitted hereunder, together with all easements, rights
of way, rights, titles or interests of every kind and description which
Agnico-Eagle AB has rights to, or otherwise owns or controls, relating to or
acquired in connection with such operations, properties and claims;


 


1.1.93                                       “Lapa Mine” means the
Borrower’s Lapa mining operations and property located approximately 11
kilometres east of the LaRonde Mine, as presently constituted and as the same
may be developed or expanded from time to time, and any replacements,
substitutions and modifications thereof permitted hereunder, together with all
easements, rights of way, rights, titles or interests of every kind and
description which the Borrower has rights to, or otherwise owns or controls,
relating to or acquired in connection with such operations, properties and
claims;


 


1.1.94                                       “LaRonde Mine” means
the Borrower’s LaRonde mining operations and property located in or around
Cadillac and Bousquet, Quebec, as presently constituted and as the same may be
developed or expanded from time to time, and any replacements, substitutions
and modifications thereof permitted hereunder, together with all easements,
rights of way, rights, titles or interests of every kind and description which
the Borrower has rights to, or otherwise owns or controls, relating to or
acquired in connection with such operations, properties and claims;


 


1.1.95                                       “Lead Arranger” means
The Bank of Nova Scotia, in such capacity;


 


1.1.96                                       “Lenders” means the
Lenders listed on Exhibit A, together with each Eligible Assignee who
enters into an Assignment and Assumption Agreement, and “Lender” means any one of them;


 


17

















 


1.1.97                                       “LIBOR” means, with
respect to any Designated Period of one, two, three or six months relating to a
Libor Advance, the average rate for deposits in US$ for a period comparable to
the Designated Period which is quoted on Libor01 Page of Reuters, or, in
case of the unavailability of such page, which is quoted on the British Bankers
Association Libor Rates Telerate (page 3750 or other applicable page), in
either case at or about 11:00 a.m. (London time), determined two Banking
Days prior to the applicable Drawdown Date in accordance with Section 4.5;
if neither of such quotes is available, then LIBOR shall be determined by the
Agent as the average of the rates at which deposits in US$ for a period similar
to the Designated Period and in amounts comparable to the amount of such Libor
Advance are offered by the Schedule 1 Reference Lenders to prime banks in the
London inter-bank market at or about 11:00 a.m. (London time) on the date
of such determination;


 


1.1.98                                       “Libor Advance” means,
at any time, an Advance in US Dollars with respect to which the Borrower has
elected to pay interest on the Libor Basis;


 


1.1.99                                       “Libor Basis” means the
basis of calculation of interest on each Advance made at LIBOR, in accordance
with the provisions of Sections 2.7, 4.3 and 4.4;


 


1.1.100                                 “Lien” means:


 


1.1.100.1                                                    with respect to any Property, any mortgage, deed of trust, lien,
pledge, hypothec, hypothecation, encumbrance, charge, assignment, consignment,
security interest, royalty interest, adverse claim, on or otherwise affecting
the Property;


 


1.1.100.2                                                    the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or title retention agreement relating to any Property;


 


1.1.100.3                                                    any purchase option, call or similar right of a third party in
respect of any Property having the effect of security for the payment or
performance of any debt, liability or obligation;


 


1.1.100.4                                                    any netting arrangement or set-off arrangement (other than netting
or set-off arising by operation of law in the Ordinary Course), defeasance
arrangement or other similar arrangement having the effect of security for the
payment or performance of any debt, liability or obligation; and


 


18

















 


1.1.100.5                                                    any other Contract, trust or arrangement that secures payment or performance
of any debt, liability or obligation;


 


and “Liens” shall have corresponding meaning;


 


1.1.101                                 “Loan Documents” means
this Agreement, the Guarantees and all other agreements, documents and
instruments to which an Obligor is a party delivered under or in relation to
the Credit Facility from time to time;


 


1.1.102                                 “Loan Obligations”
means all obligations of the Borrower to the Agent and Lenders under or in
connection with this Agreement, including but not limited to the aggregate of
Advances outstanding under this Agreement, together with interest thereon and
all other debts and liabilities, present or future, direct or indirect,
absolute or contingent, matured or not, at any time owing by the Borrower to
the Agent and Lenders in any currency or remaining unpaid by the Borrower to
the Agent and Lenders in any currency, in each case, under or in connection
with this Agreement, whether arising from dealings between the Agent and
Lenders and the Borrower or from any other dealings or proceedings by which the
Agent and Lenders may be or become in any manner whatsoever creditors of the
Borrower under or in connection with this Agreement, and wherever incurred, and
whether incurred by the Borrower alone or with another or others and whether as
principal or surety, and all interest, fees, commissions, legal and other
costs, charges and expenses incurred under or in connection with this
Agreement; provided, however, that “Loan
Obligations” shall not include “Other
Supported Obligations”.  In
this definition, “the Agent and Lenders”
shall be interpreted as “the Agent and Lenders, or any of them”;


 


1.1.103                                 “Majority Lenders”
means Lenders that represent at least 66 2/3% of the Commitments or, if the
Commitments have expired or terminated, “Majority
Lenders” shall mean Lenders to whom are owed at least 66 2/3% of
outstanding Advances;


 


1.1.104                                 “Material Adverse Effect”
means any material adverse change in or material adverse effect on (a) the
business, affairs, Property, liabilities or financial condition of the Obligors
taken as a whole, (b) the ability of the Obligors, taken as a whole, to
observe, perform or comply with their obligations under any of the Loan
Documents or (c) the rights and remedies of, as applicable, the Agent or
any of the Lenders under any of the Loan Documents;


 


1.1.105                                 “Material Assets” means (a) the Mines and all other
present and after-acquired property and assets used in connection with or
relating to the 


 


19

















 


Mines or any other operating mine, development stage mine project or
facility for the extraction or processing of ore (including all corresponding
underground and surface facilities and infrastructure and all related plant,
buildings, fixtures, equipment, chattels and machinery), whether situate on or
off such mine, development stage mine project or facility, and all
replacements, substitutions and additions thereto, (b) the Material
Subsidiaries, and (c) Related Party Debt;


 


1.1.106                                 “Material Contracts”
means any Contract (other than any Loan Document) to which an Obligor is or
becomes a party at any time that, if terminated, would reasonably be expected
to have a Material Adverse Effect;


 


1.1.107                                 “Material Permit” means
each Permit issued at any time to an Obligor that, if terminated, would
reasonably be expected to have a Material Adverse Effect;


 


1.1.108                                 “Material Subsidiary”
means a Subsidiary of the Borrower the consolidated total assets of which, at
any time, have a book value of US$40,000,000 or more or the consolidated total
revenues of which, at any time, are US$20,000,000 or more (on an annual basis),
which on the Closing Date are listed on Schedule A; provided that, once a
Subsidiary of the Borrower has such consolidated total assets or consolidated
total revenue, it shall not cease to be a “Material Subsidiary” until either
the Agent, with the consent of the Majority Lenders, or the Majority Lenders,
have consented in writing to such Subsidiary no longer being a “Material
Subsidiary”;


 


1.1.109                                 “Maturity Date” means September 3,
2010;


 


1.1.110                                 “Meadowbank Mine” means
the Borrower’s Meadowbank mining operations and property located in or around
the Kivalliq district of Nunavut, as presently constituted and as the same may
be developed or expanded from time to time, and any replacements, substitutions
and modifications thereof permitted hereunder, together with all easements,
rights of way, rights, titles or interests of every kind and description which
the Borrower has rights to, or otherwise owns or controls, relating to or acquired
in connection with such operations, properties and claims;


 


1.1.111                                 “Mines” means the Goldex Mine, the Kittila Mine, the LaRonde
Mine, the Lapa Mine, the Meadowbank Mine and the Pinos Altos Mine;


 


1.1.112                                 “Moody’s” means Moody’s
Investors Service, Inc.;


 


1.1.113                                 “Net Cash Proceeds”
means, with respect to any Asset Disposition, the gross amount of proceeds
payable in cash or Cash Equivalents to 


 


20

















 


the Obligors, or any one or
more of them, arising from such Asset Disposition, less:


 


1.1.113.1                                                    amounts paid to discharge Permitted Liens on the Property being
disposed of or indebtedness (excluding intercompany indebtedness) relating to
or incurred in connection with such Property;


 


1.1.113.2                                                    the amount of Taxes arising from in connection with or as a result
of such Asset Disposition which cannot be offset against losses, depreciation
or otherwise in the same taxation period such that same must actually be paid
or payable in cash in respect of the then-current fiscal year; and


 


1.1.113.3                                                    reasonable out-of-pocket costs, fees and expenses incurred in
connection with such Asset Disposition, including commissions, but excluding
any such amounts paid to Affiliates of any Obligor unless such amounts are in
respect of services rendered at arm’s length terms;


 


1.1.114                                 “Non-BA Lender” means a
Lender which does not accept bankers’ acceptances issued in Canada;


 


1.1.115                                 “Notice of Borrowing”
means a notice substantially in the form of Exhibit D transmitted to the
Agent by the Borrower in accordance with, as applicable, Sections 3.1, 3.3 or
subsection 5.1.1;


 


1.1.116                                 “Obligor Hedging Exposure”
means the aggregate of all amounts that would be payable to all Persons by the
Obligors or to the Obligors by other Persons, on the date of determination,
taking into account all legally enforceable netting arrangements, pursuant to
each ISDA Master Agreement between each Obligor and any such Person, as if all
Derivative Instruments under such ISDA Master Agreements were being terminated on
that day;


 


1.1.117                                 “Obligors” means the
Borrower and the Guarantors;


 


1.1.118                                 “Ordinary Course”
means, with respect to an action taken by a Person, that the action is taken in
the usual course of the normal day-to-day operations of the Person;


 


1.1.119                                    “Other Derivative Counterparties”
means, at any time, up to five Persons (which are not Lenders, Other Lenders or
Affiliates of Lenders or Other Lenders) designated in writing by the Borrower
to the Agent which are, or may be, counterparties to Derivative Instruments
with an Obligor, and which have a credit rating of not less


 


21














 


than the lowest credit rating
of any Lender that has a credit rating on the Closing Date from any of S&P
or Moody’s or the equivalent credit rating from any rating agency if not rated
by either of such credit rating agencies;


 


1.1.120                                 “Other Lender” means a
Lender (as such term is defined in the First Credit Agreement on the date
hereof);


 


1.1.121                                 “Other Supported Agreements”
means all agreements or arrangements (including guarantees) entered into or
made from time to time by any Obligor (unless otherwise specified) in
connection with (a) cash consolidation, cash management and electronic
funds transfer arrangements between an Obligor and any Lender or Affiliate of a
Lender and (b) doré purchase agreements between an Obligor and any Lender
or Affiliate of a Lender;


 


1.1.122                                 “Other Supported Obligations”
means all obligations of the Obligors to the Other Supported Parties under or
in connection with the Other Supported Agreements and all debts and
liabilities, present or future, direct or indirect, absolute or contingent,
matured or not, at any time owing by the Obligors to the Other Supported
Parties in any currency or remaining unpaid by the Obligors to the Other
Supported Parties in any currency under or in connection with the Other
Supported Agreements, whether arising from dealings between the Other Supported
Parties and the Obligors or from any other dealings or proceedings by which the
Other Supported Parties may be or become in any manner whatever creditors of
the Obligors under or in connection with the Other Supported Agreements, and
wherever incurred, and whether incurred by an Obligor alone or with another or
others and whether as principal or surety, and all interest, fees, commissions,
legal and other costs, charges and expenses; provided, however, that “Other Supported Obligations” shall not
include Loan Obligations.  In this
definition, “the Other Supported Parties”
shall be interpreted as “the Other Supported
Parties, or any of them,” and “Obligors”
shall be interpreted as “Obligors, and each
of them”;


 


1.1.123                                 “Other Supported Party”
means, at any time the Agent or a Lender or an Affiliate of the Agent or a
Lender which at such time is a creditor under or in connection with an Other
Supported Agreement;


 


1.1.124                                 “Other Taxes” means all
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document;


 


22

















 


1.1.125                                 “Participant” has the
meaning defined in Section 18.5;


 


1.1.126                                 “Pension Plan” means (a) a
“pension plan” or “plan” which is a “registered pension plan” as defined in the
Income Tax Act (Canada) or
pension benefits standards legislation in any jurisdiction of Canada and is
applicable to employees or former employees resident in Canada of any Obligor
and (b) any other defined benefit, supplemental pension benefit plan or
similar arrangement applicable to any employee or former employee of any
Obligor;


 


1.1.127                                 “Permits” means
licences, certificates, authorizations, consents, registrations, exemptions,
permits, attestations, approvals, characterization or restoration plans,
depollution program and any other approvals required by or issued pursuant to
any Applicable Law, in each case, with respect to a Person or its Property,
which are made, issued or approved by a Governmental Authority;


 


1.1.128                                 “Permitted Debt” means,
with respect to any Person:


 


1.1.128.1                                                    the Loan Obligations;


 


1.1.128.2                                                    the Other Supported Obligations to the extent they constitute Debt;


 


1.1.128.3                                                    the Guarantees;


 


1.1.128.4                                                    guarantees granted to Lenders, Other Lenders or Affiliates of Lenders
or Other Lenders in respect of obligations under Derivative Instruments entered
into between any Obligor and any Lender, any Other Lender or any Affiliate of
any Lender or any Other Lender;


 


1.1.128.5                                                    guarantees granted to Lenders, Other Lenders or Affiliates of
Lenders or Other Lenders by any Obligor in respect of obligations under Other
Supported Agreements entered into between any other Obligor and any Lender, any
Other Lender or any Affiliate of any Lender or any Other Lender;


 


1.1.128.6                                                    Debt secured by Permitted Liens;


 


1.1.128.7                                                    Debt owed by one or more Obligors to one or more other Obligors;


 


1.1.128.8                                                    unsecured Debt so long as (a) no Event of Default has occurred
and is continuing immediately prior to the incurrence of such Debt or would
occur as a result of 


 


23

















 


the incurrence or assumption of such Debt, (b) such
Debt does not require principal payments until at least 12 months following the
then existing Maturity Date at the time such Debt is incurred and (c) the
terms and conditions of such Debt shall be no more onerous to the debtor(s) thereunder
than any terms and conditions hereunder (with the exception of pricing and
fees);


 


1.1.128.9                                                    Subordinated Debt;


 


1.1.128.10                                              Debt acquired as a result of a purchase or acquisition described in
subsections (a) or (b) of the definition of Investments which
purchase or acquisition is permitted hereunder, so long as the principal amount
of such Debt does not increase;


 


1.1.128.11                                              Debt under the agreement dated January 7, 2007 between
Agnico-Eagle AB and Nordea Bank Finland Plc, in an amount not to exceed €10,000,000;
and


 


1.1.128.12                                              unsecured Debt under the First Credit Agreement.


 


1.1.129                                 “Permitted Liens”
means, with respect to any Person:


 


1.1.129.1                                                    Liens for taxes, duties or other governmental charges not yet due or
which are being contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books of such
Person, in conformity with GAAP;


 


1.1.129.2                                                    carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
or other like Liens arising in the Ordinary Course and not overdue for a period
of more than 60 days or which are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are
maintained on the books of such Person, in conformity with GAAP;


 


1.1.129.3                                                    pledges or deposits in connection with workers’ compensation,
employment insurance and other social security legislation and other
obligations of a like nature incurred in the Ordinary Course;


 


1.1.129.4                                                        deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
Ordinary Course;


 


24

















 


1.1.129.5                                                    easements, servitudes, rights-of-way, restrictions, exceptions,
minor title defects and other similar encumbrances (including for public
utilities) which, in the aggregate, do not materially interfere with such
Person or business or the use of the affected property by such Person;


 


1.1.129.6                                                    reservations, limitations, provisos and conditions in any original
grant from the Crown or any freehold lessor of any of the real properties of
such Person and statutory exceptions to title or reservations of rights which
do not in the aggregate materially interfere with such Person or business or
the use of the affected real property by such Person;


 


1.1.129.7                                                    any obligations or duties affecting any of the Property of such
Person or its Subsidiaries to any municipality or other Governmental Authority
with respect to any franchise, grant, licence or permit which do not materially
impair the use of such property for the purposes for which it is held;


 


1.1.129.8                                                    Liens created in connection with Capital Leases or securing Capital
Lease Obligations;


 


1.1.129.9                                                    any Liens for unpaid royalties or duties not yet due pursuant to
mining leases, claims or other mining rights running in favour of any
Governmental Authority;


 


1.1.129.10                                              without duplicating subsections 1.1.129.8 and 1.1.129.11, Liens on
equipment and the proceeds thereof (and on no other Property) created or
assumed to finance the acquisition thereof or secure the unpaid purchase price
of such equipment;


 


1.1.129.11                                              Liens that (i) exist at the time such Person is, or the assets
subject to such Liens are, acquired by an Obligor and (ii) extend only to
the assets acquired or the assets of the Person acquired, as applicable;


 


1.1.129.12                                              royalty agreements or other rights or claims to royalties (i) on
or affecting any Property acquired by an Obligor to the extent permitted by
this Agreement, whether in existence at the time of such acquisition or not and (ii) on or affecting
Property owned by the Borrower or any Subsidiary of the Borrower on the 


 


25

















 


Closing Date, which (except for royalty agreements
or other rights or claims to royalties in favour of any Governmental Authority
or in respect of the Pinos Altos Mine) are not subsequently amended, restated
or otherwise modified (including to increase any amounts paid thereunder),
unless doing so does not have a material adverse effect on the relevant mine,
and if it does have such a material adverse effect, then not without the prior
written consent of the Lenders, not to be unreasonably withheld;


 


1.1.129.13                                              pledges or deposits of cash or cash equivalent instruments for
purposes of securing obligations to financial institutions issuing letters of
credit to secure obligations under Pension Plans, retirement plans or for
government reclamation costs, or pledges or deposits of cash or cash equivalent
instruments to other issuers of letters of credit in the Ordinary Course,
provided that such pledging or deposit does not otherwise result in a Default
or an Event of Default;


 


1.1.129.14                                              those Liens existing on the Property of such Person (or a
predecessor of such Person) on the Closing Date and set out in Schedule B and
any extensions, renewals or replacements of any such Lien provided that the
original principal amount of the Indebtedness or obligations secured thereby is
not increased and that any such extension, renewal or replacement is limited to
the property originally encumbered thereby;


 


1.1.130                                 “Person” or “person” means any natural person,
corporation, company, limited liability company, trust, joint venture,
association, company, partnership, limited partnership, Governmental Authority,
unlimited liability company or other entity;


 


1.1.131                                 “Pinos Altos Mine”
means Agnico Eagle Mexico S.A. de C.V.’s Pinos Altos mining operations and
property located in or around the municipality of Ocampo in the state of
Chihuahua, Republic of Mexico, as presently constituted and as the same may be
developed or expanded from time to time, and any replacements, substitutions
and modifications thereof permitted hereunder, together with all easements,
rights of way, rights, titles or interests of every kind and description which
Agnico Eagle Mexico S.A. de C.V. has rights to, or otherwise owns or controls,
relating to or acquired in connection with such operations, properties and
claims;


 


1.1.132                                 “Predecessor Obligor”
has the meaning defined in Section 14.10.1.4;


 


26

















 


1.1.133                                 “Prime Rate” means, on
any day, the greater of (a) the reference rate of interest, expressed as
an annual rate, publicly announced or posted from time to time by the Agent as
being its reference rate then in effect for determining interest rates on
commercial loans made in Canada in Canadian Dollars, and (b) the average
one month Bankers’ Acceptance rate quoted on Reuters Service, page CDOR,
as at approximately 10:00 a.m. on such day, plus 0.50% per annum;


 


1.1.134                                 “Prime Rate Advance”
means an Advance in Canadian Dollars with respect to which the Borrower has
elected (or is deemed to have elected) to pay interest on the Prime Rate Basis;


 


1.1.135                                 “Prime Rate Basis”
means the basis of calculation of interest on each Advance made at the Prime
Rate, in accordance with the provisions of Sections 2.7, 4.1 and 4.2;


 


1.1.136                                 “Principal Currency”
means each of Canadian Dollars, US Dollars, Euros, British pounds, Swiss francs
and Swedish kronor;


 


1.1.137                                 “Principal Jurisdiction”
means each of Austria,
Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, Netherlands,
Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom;


 


1.1.138                                 “Property” means, with
respect to any Person, any or all of its present and future undertaking,
property and assets, tangible and intangible, and, for avoidance of doubt, in
relation to any Property which is leased or co-owned or which is property of a
partnership or joint venture, the Property of the Person means the interest of
the Person in such Property;


 


1.1.139                                 “Register” has the
meaning defined in Section 18.3;


 


1.1.140                                 “Related Party” means,
with respect to any Person, such Person’s Affiliates and the directors,
officers and employees of such Person and such Person’s Affiliates;


 


1.1.141                                 “Related Party Debt”
means Debt of an Obligor owed to an Affiliate (which is not an Obligor) or a
Related Party (which is not an Obligor);


 


1.1.142                                    “Reporting Effective Date”
has the meaning defined in subsection 2.7.3;


 


1.1.143                                 “Reporting Date” means
the last day on which financial statements and Compliance Certificate can be
delivered in compliance with, as applicable, subsections 13.1.1, 13.1.2 and
13.1.3;


 


27

















 


1.1.144                                 “S&P” means
Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc.;


 


1.1.145                                 “Schedule I Reference Lender”
means each of The Bank of Nova Scotia and The Toronto-Dominion Bank or any
other Lender which is a Schedule I bank under the Bank Act (Canada) with equity
in excess of C$5,000,000,000 appointed by the Agent from time to time with the
consent of the Borrower in replacement of any such Lender;


 


1.1.146                                 “Schedule II Reference Bank”
means any bank which is a Schedule II or Schedule III bank under the Bank Act
(Canada) and which is not subject to the restrictions and requirements referred
to in Section 524(2) thereof, designated by the Agent from time to
time with the consent of the Borrower;


 


1.1.147                                 “Second Percentage”
means the percentage of the aggregate Commitments (excluding any such
Commitments which have been suspended under Section 6.1 of this Agreement)
which have been utilized and are outstanding as Advances;


 


1.1.148                                 “Second Currency” has
the meaning defined in Section 17.1;


 


1.1.149                                 “Seizure Proceeding”
has the meaning defined in Section 15.1.10;


 


1.1.150                                 “Selected Amount”
means:


 


1.1.150.1                                                    with respect to a BA Advance, the amount of the Advance which the
Borrower has requested be advanced by way of the issuance of Bankers’
Acceptances in accordance with Section 5.1; and


 


1.1.150.2                                                    with respect to a Libor Advance, the amount that the Borrower has
requested be advanced in accordance with Section 3.3;


 


1.1.151                                 “Stamping Fee” means
the fee payable upon the acceptance of a Bankers’ Acceptance at the applicable
rate set out in Section 2.7.1 and otherwise calculated in accordance with Section 5.2.3;


 


1.1.152                                 “Standby Fee” has the
meaning defined in subsection 2.7.4;


 


1.1.153                                 “Subordinated Debt”
means Debt owing to a Person other than an Obligor which is contractually
subordinated to the Loan Obligations so long as (a) no Event of Default
has occurred and is continuing immediately prior to the incurrence of such Debt
or would occur as a result of the incurrence or assumption of such Debt, (b) such
Debt does not require principal payments until at least 12 months following the
Maturity Date in effect at the time such Debt is incurred, (c) the 


 


28

















 


terms and conditions of such
Debt are no more onerous to the debtor(s) thereunder than any terms and
conditions hereunder (with the exception of pricing and fees) and (d) such
Debt is expressly subordinated to the Loan Obligations and otherwise subject to
an Intercreditor Agreement;


 


1.1.154                                 “Subsidiary” means,
with respect to a Person, a subsidiary of such Person as defined in the Business Corporations Act (Ontario) as of
the date of this Agreement (determined as if each such Person were a body
corporate);


 


1.1.155                                 “Successor Entity” has
the meaning defined in Section 14.10.1.4(a);


 


1.1.156                                 “Supported Obligations”
means the Loan Obligations, the Guarantor Obligations and the Other Supported
Obligations;


 


1.1.157                                 “Supported Parties”
means, at any time, the Lenders and the Agent in respect of the Loan
Obligations and the Guarantor Obligations and the Other Supported Parties at
such time in respect of the Other Supported Obligations; and, for greater
certainty, does not include the Other Derivative Counterparties;


 


1.1.158                                 “Synthetic Lease” means
any synthetic lease or similar off-balance sheet financing product where such
transaction is considered borrowed money for tax purposes but is classified as
an operating lease in accordance with GAAP;


 


1.1.159                                 “Tangible Net Worth”
means, at the date of determination, the aggregate value of the Borrower’s then
stated share capital, other paid-in capital and contributed surplus (but
excluding any deficit or shares of the Borrower held by any of its
Subsidiaries) less the aggregate value of all intangibles (including, without
limitation, goodwill) all as determined on a consolidated basis in accordance
with GAAP consistently applied.


 


1.1.160                                 “Taxes” means all
present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto;


 


1.1.161                                 “Total Debt” means, at
any time, all Debt of the Borrower on a consolidated basis (which shall, for
purposes of this definition, include the Consolidated Hedging Exposure owed by
the Borrower and its Subsidiaries);


 


1.1.162                                 “Total Net Debt” means
Total Debt less Unencumbered Cash;


 


29

















 


1.1.163                                 “Total Net Debt to EBITDA Ratio”
means, for any period, the ratio of Total Net Debt to EBITDA;


 


1.1.164                                 “Trade Date” has the
meaning defined in Section 18.2.2.1;


 


1.1.165                                 “Transaction Date” has
the meaning defined in Section 7.7;


 


1.1.166                                 “Unencumbered Cash”
means all cash and Cash Equivalents held by the Obligors in the Principal
Jurisdictions that are not subject to any Lien by any Person, other than
inchoate Liens which arise by statute or operation of law, in each case, on an
involuntary basis.  For the avoidance of
doubt, any cash or Cash Equivalents held by any joint ventures that is
proportionately consolidated into the Borrower’s balance sheet shall not constitute
Unencumbered Cash;


 


1.1.167                                 “US Base Rate” means,
on any day, the rate of interest, expressed as an annual rate, publicly
announced or posted from time to time by the Agent as being its reference rate
then in effect for determining interest rates on commercial loans granted in
Canada in US Dollars to its customers (whether or not any such loans are
actually made); provided that if the US Base Rate is, for any period, less than
the Federal Funds Effective Rate plus 0.50% per annum, the US Base Rate shall
be deemed to be equal to the Federal Funds Effective Rate plus 0.50% per annum;


 


1.1.168                                 “US Base Rate Advance”
means an Advance in US Dollars with respect to which the Borrower has elected
(or is deemed to have elected) to pay interest on the US Base Rate Basis;


 


1.1.169                                 “US Base Rate Basis”
means the basis of calculation of interest on each Advance made at the US Base
Rate, in accordance with the provisions of Sections 2.7, 4.1 and 4.2;


 


1.1.170                                 “US Dollars” or “US$” means the lawful currency of the USA
in same day immediately available funds or, if such funds are not available,
the currency of the USA which is ordinarily used in the settlement of
international banking operations on the day on which any payment or any
calculation must be made pursuant to this Agreement;


 


1.1.171                                 “USA” means the United
States of America.


 


1.2                                Interpretation


 


In this
Agreement, unless stipulated to the contrary or the context otherwise requires:


 


1.2.1                                             words used herein which indicate the singular include the plural and
vice versa and words used herein which indicate one gender include all genders;


 


30

















 


1.2.2                                             references to Contracts, unless otherwise specified, are deemed to
include all present and future amendments, supplements, restatements or
replacements to or of such Contracts;


 


1.2.3                                             references to any legislation, statutory instrument or regulation or
a section or other provision thereof, unless otherwise specified, is a
reference to the legislation, statutory instrument, regulation, section or
other provision as amended, restated or re-enacted from time to time;


 


1.2.4                                             references to any thing includes the whole or any part of that thing
and a reference to a group of things or Persons includes each thing or Person
in that group;


 


1.2.5                                             references to a Person includes that Person’s successors and
permitted assigns; and


 


1.2.6                                             any reference to a time shall mean local time in the City of
Toronto, Ontario.


 


1.3                                Currency


 


Unless the
contrary is indicated, all amounts referred to herein are expressed in US
Dollars.


 


1.4                                Generally
Accepted Accounting Principles


 


Unless the
Lenders shall otherwise expressly agree or unless otherwise expressly provided
herein, all of the terms of this Agreement which are defined under the rules constituting
GAAP shall be interpreted, and all financial statements and reports to be
prepared hereunder shall be prepared, in accordance with GAAP; provided that if
there occurs after the date hereof any change in GAAP from that used in the
preparation of the financial statements of the Borrower most recently delivered
to the “Agent” under the First Credit Agreement or that affects in any respect
the calculation of any covenants contained in Article 11, the Lenders and
the Borrower shall negotiate in good faith amendments to the provisions of this
Agreement that relate to the calculation of such covenant with the intent of
having the respective positions of the Lenders and the Borrower after such
change in GAAP conform as nearly as possible to their respective positions as
of the date of this Agreement.


 


1.5                                Division
and Titles


 


The division
of this Agreement into Articles, Sections, subsections, paragraphs, clauses and
other subdivisions and the insertion of titles are for convenience of reference
only and shall not affect the meaning or interpretation of this Agreement.


 


31














 


2.                                       THE
CREDIT


 


2.1                                 Amounts of Credit Facility


 


Subject
to the applicable provisions hereof, each Lender agrees to make available to
the Borrower, severally (not jointly and not jointly and severally), a
revolving credit facility for the use of the Borrower in the amount of up to
its Applicable Percentage of US$300,000,000 or the equivalent thereof in
Canadian Dollars, as the same may be reduced in accordance with the terms
hereof (the “Credit Facility”).


 


2.2                                 Availment Options under Credit Facility


 


At the option
of the Borrower, the Credit Facility may be utilized by the Borrower by
requesting that Prime Rate Advances, US Base Rate Advances or Libor Advances be
made by the Lenders or by presenting drafts, orders or Discount Notes to a
Lender for acceptance as Bankers’ Acceptances.


 


2.3                                 Revolving Credit Facility


 


The
Credit Facility is a revolving credit facility. 
The principal amount of any Advance under the Credit Facility which is
repaid from time to time may, subject to the applicable provisions of this
Agreement, be reborrowed.


 


2.4                                 Purpose/Use of the Credit Facility


 


The
Borrower may use the Credit Facility for its general corporate purposes or the
general corporate purposes of the other Obligors, including acquisitions as
permitted under this Agreement.


 


2.5                                 Term and Repayment


 


Unless due and
payable sooner in accordance with this Agreement, all Loan Obligations shall be
due and payable on the Maturity Date.


 


2.6                                 Voluntary Prepayments and Voluntary Cancellations


 


2.6.1                                              The Borrower may prepay Prime Rate Advances and US Base Rate
Advances under the Credit Facility upon one Business Day’s prior written notice
in the form of Exhibit D and, subject to Sections 6.4 and 7.1, may prepay
Libor Advances under the Credit Facility upon three Business Days prior written
notice in the form of Exhibit D, without premium or penalty in minimum
amounts of C$1,000,000 or multiples thereof, in the case of Prime Rate
Advances, and in minimum amounts of US$1,000,000 and multiples thereof, in the
case of US Base Rate Advances and Libor Advances.  All prepayments of Advances shall include
payment of all breakage costs relating thereto in accordance with Section 6.4.  No Bankers’ Acceptance or Discount Note may
be paid prior to its maturity date, but the Borrower may provide escrowed funds
for outstanding Bankers’ Acceptances and Discount Notes in accordance with Section 15.4.


 


32

















 


2.6.2                                              The Borrower may, upon three Business Days prior written notice in
the form of Exhibit D, cancel undrawn portions of the Credit Facility in
minimum amounts of US$1,000,000 and multiples thereof, or if less, the
remaining undrawn portion of the Credit Facility.  No Standby Fees shall be payable in respect
of the portion of the Credit Facility so cancelled as and from the effective
date of its cancellation.  No portion of
the Credit Facility which has been so cancelled may be reinstated by the
Borrower.


 


2.7                                 Interest Rates


 


2.7.1                                              Interest rates, Stamping Fees and the Standby Fee rate shall vary
and be calculated based on the Total Net Debt to EBITDA Ratio as follows:


 


	
  Total Net Debt

  to EBITDA

  Ratio

  	
   

  	
  Libor / Stamping

  Fees

  	
   

  	
  Base Rate or

  Prime Rate

  	
   

  	
  Standby Fee

  	
   

  
	
  <1.50

  	
   

  	
  1.00

  	
  %

  	
  Nil

  	
   

  	
  0.375

  	
  %

  
	
  >1.50 and  < 2.00

  	
   

  	
  1.15

  	
  %

  	
  0.15

  	
  %

  	
  0.45

  	
  %

  
	
  >2.00 and  < 2.50

  	
   

  	
  1.35

  	
  %

  	
  0.35

  	
  %

  	
  0.50

  	
  %

  
	
  >2.50

  	
   

  	
  1.60

  	
  %

  	
  0.60

  	
  %

  	
  0.55

  	
  %

  



 


2.7.2                                              All interest rates set forth in subsection 2.7.1 are rates per
annum.  Interest on Libor Advances shall
accrue and be payable at LIBOR for the applicable Designated Period plus the
Applicable Margin shown in the second column of the table in subsection
2.7.1.  The rate for Stamping Fees shall
be the Applicable Margin shown in the second column of the table in subsection
2.7.1. Interest on Prime Rate Advances and US Base Rate Advances shall, as
applicable, accrue and be payable at the Prime Rate or the US Base Rate plus
the Applicable Margin shown in the third column of the table in subsection
2.7.1.


 


2.7.3                                              Increases or decreases in the Applicable Margin resulting from a
change in the Total Net Debt to EBITDA Ratio shall be based on the Total Net
Debt to EBITDA Ratio reported in the applicable Compliance Certificate
delivered by the Borrower pursuant to Section 13.1.3; provided that, from
the Closing Date to the Reporting Effective Date in respect of the first full
fiscal quarter of the Borrower immediately following the Closing Date, the
Applicable Margin shall be based on the Total Net Debt to EBITDA Ratio reported
in the Compliance Certificate delivered by the Borrower on the Closing Date.  Changes in the Applicable Margin shall be
effective as of two Business Days following the earlier of the day upon which
such


 


33

















 


Compliance
Certificate is delivered to the Agent and the day upon which such Compliance Certificate
could be delivered on time pursuant to Section 13.1.3 (the “Reporting Effective Date”).  Without waiving the requirement of the
Borrower to deliver the Compliance Certificate by no later than the Reporting
Date, if any Compliance Certificate required to be delivered by the Borrower is
delivered after the Reporting Date, the then prevailing Applicable Margin shall
continue until such Compliance Certificate is, in fact, delivered. Upon receipt
of any Compliance Certificate which is delivered after the relevant Reporting
Date, the Agent shall determine the amount of any overpayment or underpayment
of interest during the period from the Reporting Date to and including the date
of actual delivery thereof by the Borrower and notify the Borrower and the Lenders
of such amounts. Such determination by the Agent shall constitute prima facie evidence of the amount of such
overpayment or underpayment, as the case may be. In the event of an
underpayment, the Borrower shall, upon receipt of such notice, pay to the
Agent, for the benefit of the Lenders, the amount of such underpayment. In the
event of an overpayment, the amount of such overpayment shall be credited and
applied to succeeding payments by the Borrower of interest as it becomes due
until such amount has been fully applied. Should the Agent, acting reasonably,
determine that the calculation of the Total Net Debt to EBITDA Ratio in any
Compliance Certificate is incorrect, the Agent shall advise the Borrower of
such error and the Borrower and the Agent agree that, absent manifest error,
the Applicable Margin shall be adjusted in accordance with the determination by
the Agent, acting reasonably, and if the Applicable Margin should have been
higher, the Borrower shall pay the amount owing commencing as of the date when
the adjustment would otherwise be effective in accordance with this provision,
and if the Applicable Margin should have been lower, the amount of such
underpayment. In the event of an overpayment, the amount of such overpayment
shall be credited and applied to succeeding payments by the Borrower of
interest as it becomes due until such amount has been fully applied.


 


2.7.4                                              The Borrower shall pay a standby fee (the “Standby Fee”) on the daily unadvanced
portion of the Credit Facility at a rate per annum which shall vary and be
calculated based on the Applicable Margin shown in the fourth column of the
table in subsection 2.7.1.  The Standby
Fee shall be calculated daily beginning on the Closing Date and shall be
payable quarterly in arrears on the first Business Day following completion of
each fiscal quarter of the Borrower. 
Upon final payment of the Loan Obligations, the Borrower shall also pay
any accrued but unpaid Standby Fees on the Credit Facility.


 


2.7.5                                              Interest on Prime Rate Advances, US Base Rate Advances, Libor
Advances and Stamping Fees, and Standby Fees received by the Agent


 


34

















 


shall
be promptly distributed by the Agent to the Lenders in accordance with their
respective Applicable Percentages.


 


2.8                                 Exchange Rate Fluctuations


 


If,
at any time, fluctuations in rates of exchange in effect between currencies
cause the aggregate amount of Advances (expressed in US Dollars using the FX
Rate) outstanding under the Credit Facility to exceed the maximum amount of the
Credit Facility permitted herein by 3%, the Borrower shall pay to the Lenders
on demand such amount as is necessary to repay the excess.  If the Borrower is unable to immediately pay
that amount because Designated Periods have not ended or Bankers’ Acceptances
have not matured, the Borrower shall, on demand, cause to be deposited with the
Agent escrowed funds in the amount of the excess, which shall be held by the
Agent until the amount of the excess is paid in full.  The Borrower shall be entitled to receive
interest on cash held by the Agent as collateral in accordance with Section 15.4.  If, on any Drawdown Date, the aggregate
amount of Advances under the Credit Facility (expressed in US Dollars using the
FX Rate) exceeds the maximum amount of the Credit Facility permitted herein
because of fluctuations in rates of exchange or otherwise, the Borrower shall
immediately pay the Agent, for the benefit of the Lenders, the excess and shall
not be entitled to any Advance that would result in the amount of the Credit
Facility being exceeded. For greater certainty, no payments made by the
Borrower under this Section 2.8 shall result in any permanent reduction in
the Credit Facility.


 


2.9                                 Pro-Rata Utilizations


 


2.9.1                                              If, at any time, the First Percentage and the Second Percentage
differ by 10 or more, the Borrower shall, within 30 days thereof, take one or
more of the following steps, as applicable:


 


2.9.1.1                                                                  repay an amount under the First Credit Agreement;


 


2.9.1.2                                                                  repay an amount under this Agreement;


 


2.9.1.3                                                                  subject to the terms and conditions hereof, obtain an Advance or
Advances under the Credit Facility; or


 


2.9.1.4                                                                  subject to the terms and conditions of the First Credit Agreement,
obtain an Advance or Advances (as such terms are defined in the First Credit
Agreement on the date hereof);


 


so that the
First Percentage and the Second Percentage differ by less than 10.


 


2.9.2                                              If Advances are otherwise
available hereunder to the Borrower, to the extent that there exist
Advances (as such term is defined in the First Credit Agreement on the
date hereof) by way of the issuance of “Letters of Credit” outstanding under
the First Credit Agreement, the


 


35

















 


Borrower will not
request any further Advances (as such term is defined in the First Credit
Agreement on the date hereof) under the First Credit Agreement, other than
Advances by way of the issuance of “Letters of Credit” or Swing Line Advances
(as such term is defined in the First Credit Agreement on the date
hereof), unless and until the aggregate outstanding amount of Advances under
this Agreement are sufficient to comply with Section 2.9.1 without
reference to this sentence.  Under no circumstances shall the Borrower be
required pursuant to this Section 2.9 to request an Advance that is not
otherwise required for general corporate purposes of the Borrower or the other
Obligors solely because of the utilization of “Letters of Credit” under the
First Credit Agreement.  Nothing in this Section 2.9 shall limit
the Borrower’s ability to have outstanding Advances that are Letters of
Credit or Swing Line Advances (as such term is defined in the First Credit
Agreement on the date hereof) under the First Credit Agreement or to
incur Advances (as such term is defined in the First Credit Agreement
on the date hereof) that are Letters of Credit or Swing Line Advances (as such
term is defined in the First Credit Agreement on the date hereof) under
the First Credit Agreement.


 


3.                                       ADVANCES,
CONVERSIONS AND OPERATION OF ACCOUNTS


 


3.1                                 Notice of Borrowing - Direct Advances


 


Subject
to the applicable provisions of this Agreement, on any Business Day, the
Borrower shall be entitled to draw upon the Credit Facility, on one or more
occasions, up to the maximum amount of the Credit Facility, by way of Prime
Rate Advances and US Base Rate Advances in minimum amounts of, as applicable,
C$1,000,000 or US$1,000,000 and in whole multiples thereof, provided that on
any Business Day that is at least two Business Days prior to the day on which
any Prime Rate Advance or US Base Rate Advance is required, the Borrower shall
have provided to the Agent a Notice of Borrowing at or before 10:00 a.m.  Notices of Borrowing in respect of Libor
Advances and BA Advances shall be given in accordance with the provisions of
Sections 3.3 and 5.1, respectively.


 


3.2                                 Canadian Dollar-Libor Funded Advances


 


Subject
to the applicable provisions of this Agreement, if the Borrower requests an
Advance by way of Prime Rate Advance, each Canadian Dollar-Libor Funded Lender
shall make available to the Agent pursuant to Section 16.9 when required
hereunder an Advance as a Prime Rate Advance in the principal amount equal to
such Lender’s Applicable Percentage of the total Advance to be extended by way
of Prime Rate Advances. Such Prime Rate Advance made by such Canadian
Dollar-Libor Funded Lender shall initially have a term equal to the Canadian
Dollar-Libor Term which is effective on the day such Advance is made, and
thereafter, shall, until such Advance is repaid, have a term equal to the
Canadian Dollar-Libor Term which is effective on the day the last Canadian
Dollar-Libor Term for such Advance matures. Upon request by the


 


36

















 


Borrower,
the Agent shall notify the Borrower of the Canadian Dollar-Libor Term which is
then in effect.


 


3.3                                 LIBOR Advances and Conversions


 


3.3.1                                              Subject to the applicable provisions of this Agreement, at or before
10:00 a.m. on at least four Banking Days prior to the Drawdown Date of a
proposed Libor Advance, the Borrower may request that a Libor Advance be made,
that one or more US Base Rate Advances not borrowed as Libor Advances be
converted into one or more Libor Advances or that a Libor Advance or any part
thereof be renewed or extended, as the case may be.  Each Selected Amount with respect to each
Designated Period shall be in an amount of not less than US$1,000,000, and
shall be in whole multiples thereof.  The
Agent shall determine the LIBOR which will be in effect on the Drawdown Date
(which in such case must be a Banking Day), with respect to the Selected Amount
or to each of the Selected Amounts, as the case may be, having a maturity of
one, two, three or six months (subject to availability) from the Drawdown Date,
but no Designated Period may end after the Maturity Date, and there shall not
at any time be LIBOR Advances with more than six different maturity dates
outstanding with more than six different maturity dates.  If, at the end of a Designated Period in
respect of any Libor Advance, the Borrower has not delivered a notice of
conversion or rollover to the Agent in a timely manner in accordance with the
provisions of this Section 3.3, the Borrower shall be deemed to have given
notice for a US Base Rate Advance.


 


3.4                                 Evidence of Indebtedness


 


The
Loan Obligations resulting from Prime Rate Advances, US Base Rate Advances,
Libor Advances made by the Lenders shall be evidenced by records maintained by
the Agent and by each Lender concerning those Advances it has made.  The Agent shall also maintain records of the
Loan Obligations resulting from BA Advances, and each Lender shall also
maintain records relating to Bankers’ Acceptances that it has accepted.  The records maintained by the Agent shall
constitute prima facie evidence
of the Loan Obligations and all details relating thereto.  After a request by the Borrower, the Agent or
the Lender to whom the request is made will promptly advise the Borrower of the
entries in such records.  The failure of
the Agent or any Lender to correctly record any such amount or date shall not,
however, adversely affect the obligation of the Borrower to pay any Loan
Obligations in accordance with this Agreement. 
The Agent shall, upon the reasonable request of a Lender or the
Borrower, provide any information contained in its records of Advances by such
Lender or to the Borrower, and the Agent, each Lender and the Borrower shall
cooperate in providing all information reasonably required to keep all accounts
accurate and up-to-date.


 


37

















 


3.5                                 Apportionment of Advances


 


The
amount of each Advance will be apportioned among the Lenders by the Agent by
reference to the Applicable Percentage of each Lender immediately prior to the
making of any Advance, subject to the provisions of Section 5.8 with
respect to BA Advances.  If any amount is
not in fact made available to the Agent by a Lender, the Agent shall be
entitled to recover such amount (together with interest thereon at the rate
determined by the Agent as being its cost of funds in the circumstances) on
demand from such Lender or, if such Lender fails to reimburse the Agent for
such amount on demand, from the Borrower.


 


3.6                                 Notices Irrevocable


 


Any
notice (including any deemed notice provided for herein) given to the Agent
under Article 3 or 5 may not be revoked or withdrawn.


 


3.7                                 Limits on BA Advances and Libor Advances


 


Nothing
in this Agreement shall be interpreted as authorizing the Borrower to issue
Bankers’ Acceptances or borrow by way of Libor Advances for a Designated Period
expiring on a date which is after the Maturity Date.


 


4.                                       CALCULATION
OF INTEREST AND FEES


 


4.1                                 Calculation of Interest on Prime Rate Advances and US Base Rate
Advances


 


The
principal amount of each Prime Rate Advance and each US Base Rate Advance shall
bear interest, calculated daily, on the daily balance of each such Advance,
from and including the Drawdown Date of, as applicable, such Prime Rate Advance
or US Base Rate Advance, up to but excluding the day of repayment thereof in
full at the annual rate (calculated based on a 365 or 366 day year, as
applicable) applicable to each of such days which corresponds to, as
applicable, the Prime Rate or the US Base Rate, at the close of business on
each of such days, plus the Applicable Margin determined in accordance with
subsection 2.7.1.


 


4.2                                 Payment of Interest on Prime Rate Advances and US Base Rate Advances


 


Interest
on Prime Rate Advances and US Base Rate Advances calculated and payable in
accordance with Section 4.1 shall be payable to the Agent for the account
of the Lenders on the last Business Day of each month.


 


4.3                                 Calculation of Interest on Libor Basis


 


The
principal amount of each Libor Advance shall bear interest, calculated daily,
on the daily balance of such Advances, from and including the Drawdown Date up
to but excluding the last day of the Designated Period of such Libor Advance,
at the annual rate (calculated based on a 360-day year) applicable to each of
such days which corresponds to the LIBOR applicable to each Selected Amount,
plus the Applicable Margin determined in accordance with subsection 2.7.1, and
shall be effective as and from and including the Drawdown Date.


 


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4.4                                 Payment of Interest on Libor Basis


 


Interest
on Libor Advances calculated and payable in accordance with Section 4.3
shall be payable to the Agent for the account of the Lenders, in arrears,


 


4.4.1                                              on the last day of the applicable Designated Period when the
Designated Period is one, two or three months; or


 


4.4.2                                              when the applicable Designated Period exceeds three months, on the
last Business Day of each period of three months during such Designated Period
and on the last day of the applicable Designated Period.


 


4.5                                 Fixing of LIBOR


 


Notice
of LIBOR shall be transmitted to the Borrower at approximately 11:00 a.m.,
two Banking Days prior to:


 


4.5.1                                              the date on which the Libor Advance is to be made; or


 


4.5.2                                              the relevant rollover date of a Libor Advance.


 


4.6                                 Interest on Miscellaneous Amounts


 


Where
this Agreement does not specifically provide for a rate of interest applicable
to an outstanding portion of the Loan Obligations, the interest on such portion
of the Loan Obligations shall be calculated and payable on the Prime Rate
Basis, in the case of amounts payable in Canadian Dollars, and on the US Base
Rate Basis, in the case of amounts payable in US Dollars and Euros (with any
amounts in Euros having been converted to US Dollars in accordance with the
procedures set out herein), in each case payable on the last Business Day of
each month.


 


4.7                                 Default Interest


 


If
the Borrower fails to pay any principal amount of any Loan Obligations, any
interest thereon, any fees payable hereunder or any other amount payable
hereunder on the date when such amount is due (whether at the stated maturity,
by acceleration or otherwise), such overdue amount shall bear interest, to the
extent permitted by Applicable Law, from and including such due date up to but
excluding the date of actual payment, both before and after demand, Default or
judgment, at a rate of interest per annum equal to 2% greater than the interest
rate which is otherwise applicable (which, in the case of LIBOR Advances, shall
be based on the existing Libor Basis, until the expiry of the then applicable
Designated Period and thereafter based on successive Designated Periods of one
month) from the date of such non-payment until paid in full (as well after, as
before Default, maturity or judgment), with interest on overdue interest
bearing interest at the same rate.  All
interest payable pursuant to this Section 4.7 shall be payable upon
demand.


 


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4.8                                 Maximum Interest Rate


 


The
amount of the interest or fees payable in applying this Agreement shall not
exceed the maximum rate permitted by Applicable Law.  Where the amount of such interest or such
fees is greater than the maximum rate, the amount shall be reduced to the
highest rate that may be recovered in accordance with the applicable provisions
of Applicable Law.


 


4.9                                 Interest Act


 


4.9.1                                              Each rate of interest which is calculated with reference to a period
(the “deemed interest period”)
that is less than the actual number of days in the calendar year of calculation
is, for the purposes of the Interest Act
(Canada), equivalent to a rate based on a calendar year calculated by
multiplying such rate of interest by the actual number of days in the calendar
year of calculation and dividing by the number of days in the deemed interest
period.


 


4.9.2                                              The parties agree that all interest in this Agreement will be
calculated using the nominal rate method and not the effective rate method, and
that the deemed re-investment principle shall not apply to such
calculations.  In addition, the parties
acknowledge that there is a material distinction between the nominal and
effective rates of interest and that they are capable of making the
calculations necessary to compare such rates.


 


5.                                       BANKERS’
ACCEPTANCES


 


5.1                                 Advances by Bankers’ Acceptances and Conversions into Bankers’
Acceptances


 


5.1.1                                              Subject to the applicable provisions of this Agreement (including Section 6.6),
the Borrower may request that a BA Advance be made, that one or more Advances
not borrowed as BA Advances be converted into one or more BA Advances or that a
BA Advance or any part thereof be extended, as the case may be (the “BA Request”) by written Notice of Borrowing
to the Agent given at least four Business Days, before 10:00 a.m., prior
to the date of the proposed Advance (for the purposes of this Article 5
called the “Acceptance Date”).  BA Advances shall be in a minimum amount of
C$1,000,000 or C$100,000 multiples thereof. 
Each Bankers’ Acceptance issued shall have a Designated Period of one,
two, three or six months (or such other period as may be available and
acceptable to the Lenders), and shall in no event mature on a date that is
after the Maturity Date.


 


5.1.2                                              Prior to making any BA Request, the Borrower shall deliver:


 


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5.1.2.1                                                                  to the Lenders, in the name of each BA Lender, drafts in form and
substance acceptable to the Agent and the Lenders, acting reasonably; and


 


5.1.2.2                                                                  to the Lenders, in the name of each Lender which is a Non-BA Lender,
Discount Notes;


 


completed and
executed by its authorized signatories in sufficient quantity for the Advance
requested and in appropriate denominations to facilitate the sale of the
Bankers’ Acceptances in the financial markets. 
No Lender shall be responsible or liable for its failure to accept a
Bankers’ Acceptance hereunder if such failure is due, in whole or in part, to
the failure of the Borrower to give appropriate instructions to the Agent on a
timely basis, nor shall the Agent or any Lender be liable for any damage, loss
or other claim arising by reason of any loss or improper use of any such
instrument except a loss or improper use arising by reason of the gross
negligence or wilful misconduct of the Agent, such Lender, or their respective
employees.


 


In order to
facilitate issuances of Bankers’ Acceptances pursuant hereto in accordance with
the instructions given from time to time by the Borrower, the Borrower hereby
authorizes each Lender, and for this purpose appoints each Lender its lawful
attorney, to complete and sign Bankers’ Acceptances on behalf of the Borrower,
in handwritten, facsimile, mechanical or electronic signature or otherwise, and
once so completed, signed and endorsed, and following acceptance of them as
Bankers’ Acceptances, to purchase, discount or negotiate such Bankers’
Acceptances in accordance with the provisions of this Article 5, and to
provide the Available Proceeds to the Agent in accordance with the provisions
hereof.  Drafts so completed, signed,
endorsed and negotiated on behalf of the Borrower by any Lender shall bind the
Borrower as fully and effectively as if so performed by an authorized officer
of the Borrower.  Each Lender shall
maintain a record with respect to such instruments (a) received by it
hereunder, (b) voided by it for any reason, (c) accepted by it
hereunder and (d) cancelled at their respective maturities.  Each Lender agrees to provide such records to
the Borrower upon request.


 


5.2                                 Acceptance Procedure


 


With
respect to each BA Advance:


 


5.2.1                                              The Agent shall promptly notify in writing each Lender of the
details of the proposed BA Advance, specifying:


 


5.2.1.1                                                                  for each BA Lender (a) the principal amount of the Bankers’
Acceptances to be accepted by such Lender,


 


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and (b) the Designated Period of such
Bankers’ Acceptances; and


 


5.2.1.2                                                                for each Non-BA Lender (a) the principal amount of the Discount
Notes to be issued to such Lender and (b) the Designated Period of such
Discount Notes.


 


5.2.2                                             The Agent shall establish the Bankers’ Acceptance Discount Rate at
or about 10:00 a.m. on the Acceptance Date, and the Agent shall promptly
determine the amount of the BA Proceeds.


 


5.2.3                                             Forthwith, and in any event not later than 11:30 a.m. on the
Acceptance Date, the Agent shall indicate to each Lender, in the manner set out
in Section 16.5 and to the Borrower:


 


5.2.3.1                                                                the Bankers’ Acceptance Discount Rate;


 


5.2.3.2                                                                the amount of the Stamping Fee applicable to the Bankers’
Acceptances to be accepted by such Lender on the Acceptance Date, calculated by
multiplying the appropriate percentage determined in accordance with subsection
2.7.1 by the face amount of each Bankers’ Acceptance (taking into account the
number of days in the Designated Period), each such Lender being authorized by
the Borrower to deduct such Lender’s Stamping Fee out of the BA Proceeds of the
Bankers’ Acceptances accepted by it;


 


5.2.3.3                                                                the BA Proceeds of the Bankers’ Acceptances to be purchased by such
Lender on such Acceptance Date; and


 


5.2.3.4                                                                the amount obtained (the “Available
Proceeds”) by deducting the Stamping Fee referred to in subsection
5.2.3.2 from the BA Proceeds mentioned in subsection 5.2.3.3.


 


5.2.4                                             Not later than 1:00 p.m. on the Acceptance Date, each Lender
shall make available to the Agent its Available Proceeds.


 


5.2.5                                             Not later than 3:00 p.m. on the Acceptance Date, subject to the
applicable provisions of this Agreement, the Agent shall transfer the Available
Proceeds to the Borrower and shall notify the Borrower of the details of the
issue.


 


5.3                                Purchase
of Bankers’ Acceptances and Discount Notes


 


Before giving value to the Borrower, the
Lenders which are:


 


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5.3.1                                             BA Lenders shall, on the Acceptance Date, accept the Bankers’
Acceptances by inserting the appropriate principal amount, Acceptance Date and
maturity date in accordance with the BA Request relating thereto and affixing
their acceptance stamps thereto, and shall purchase or sell same; and


 


5.3.2                                             Non-BA Lenders shall, on the Acceptance Date, complete the Discount
Notes by inserting the appropriate principal amount, Acceptance Date and
maturity date in accordance with the BA Request relating thereto and shall
purchase the same.


 


5.4                                Maturity
Date of Bankers’ Acceptances


 


Subject to the applicable notice provisions,
at or prior to the maturity date of each Bankers’ Acceptance, the Borrower may:


 


5.4.1                                             give to the Agent a notice in the form of Exhibit D requesting
that the Lenders convert all or any part of the BA Advance then outstanding
which are maturing into a Prime Rate Advance; or


 


5.4.2                                             give to the Agent a notice in the form of Exhibit D requesting
that the Lenders extend all or any part of the BA Advance outstanding which are
maturing into another BA Advance by issuing new Bankers’ Acceptances, subject
to compliance with the provisions of subsection 5.1.1 with respect to the
minimum Selected Amount; or


 


5.4.3                                             by no later than 10:00 a.m., two Business Days prior to the
maturity date of each Bankers’ Acceptance then outstanding and reaching
maturity, notify the Agent that it intends to deposit in its account for the
account of the Lenders on the maturity date thereof an amount equal to the
principal amount of each such Bankers’ Acceptance.


 


5.5                                Deemed
Conversions on the Maturity Date of Bankers’ Acceptances


 


If the Borrower does not deliver to the Agent
one or more of the notices contemplated by subsections 5.4.1 or 5.4.2 or does
not give the notice contemplated by subsection 5.4.3, the Borrower shall be
deemed to have requested and given notice that the part of the BA Advance then
outstanding which is reaching maturity be converted into a Prime Rate Advance.


 


5.6                                Conversion
and Extension Mechanism


 


If under the conditions:


 


5.6.1                                             of subsection 5.4.1 and of Section 5.5, the Borrower requests
or is deemed to have requested, as the case may be, that the Agent convert the
portion of the BA Advance which is maturing into a Prime Rate Advance, the
Lenders shall pay the Bankers’ Acceptances which are 


 


43

















 


outstanding and maturing.  Such payments by the Lenders will constitute
an Advance within the meaning of this Agreement and the interest thereon shall
be calculated and payable as such; or


 


5.6.2                                              of subsection 5.4.3, the Borrower makes a deposit in its account to
repay a maturing Bankers’ Acceptance, without limiting in any way the
generality of Section 7.10 or 19.5, the Borrower hereby expressly and
irrevocably authorizes the Agent to make any debits necessary in its account in
order to pay the Bankers’ Acceptances which are outstanding and maturing,
provided that no such debit will constitute a prepayment under subsection 2.6.1
or cancellation under Section 2.6.2.


 


5.7                                No
Prepayment of Bankers’ Acceptances


 


Notwithstanding any provision hereof, the
Borrower may not repay any Bankers’ Acceptance other than on its maturity date;
however, this provision shall not prevent the Borrower from providing escrowed
funds for any Bankers’ Acceptance in accordance with Section 15.4.


 


5.8                                Apportionment
Amongst the Lenders


 


In relation to each BA Advance, the Agent is
authorized by the Borrower and each Lender to allocate between the Lenders the
Bankers’ Acceptances to be issued by the Borrower and accepted and purchased by
the Lenders, in such manner and amounts as the Agent may, in its sole
discretion, consider necessary, so as to ensure that no Lender is required to
accept and purchase a Bankers’ Acceptance for a fraction of C$100,000.  In the event of any such allocation by the
Agent, the Lenders’ respective Commitments in any such Bankers’ Acceptances and
repayments thereof shall be adjusted accordingly.  Further, the Agent is authorized by the
Borrower and each Lender to cause the Applicable Percentage of one or more
Lender’s Advances with respect to Bankers’ Acceptances to be exceeded by no
more than C$100,000 each as a result of such allocations, provided that the
principal amount of all outstanding Advances of each Lender shall not thereby
exceed the maximum amount of the respective Commitment of each Lender.  Any resulting amount by which the requested
face amount of any such Bankers’ Acceptance shall have been so reduced shall be
advanced, converted or continued, as the case may be, as a Prime Rate Advance,
to be made contemporaneously with the BA Advance.


 


5.9                                Days
of Grace


 


The Borrower shall not claim from the Lenders
any days of grace for the payment at maturity of any Bankers’ Acceptances
presented and accepted by the Lenders pursuant to the provisions of this
Agreement.  Further, the Borrower waives
any defence to payment which might otherwise exist if for any reason a Bankers’
Acceptance shall be held by any Lender in its own right at the maturity
thereof.


 


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5.10                          Obligations
Absolute


 


The obligations of the Borrower with respect
to Bankers’ Acceptances shall be unconditional and irrevocable (other than in
respect of a loss or the improper use of any Bankers’ Acceptance arising by
reason of the gross negligence or wilful misconduct of the Agent, the Lenders
or their respective employees) and shall be paid strictly in accordance with
the provisions of this Agreement under all circumstances, including the
following circumstances:


 


5.10.1                                       any lack of validity or enforceability of any draft accepted by any
Lender as a Bankers’ Acceptance; or


 


5.10.2                                       the existence of any claim, set-off, defence or other right which
the Borrower may have at any time against the holder of a Bankers’ Acceptance,
the Lenders, or any other person or entity, whether in connection with this
Agreement or otherwise.


 


5.11                          Depository Bills and Notes Act


 


In the discretion of a BA Lender, Bankers’
Acceptances to be accepted by such Lender may be issued in the form of “depository bills” within the meaning of the
Depository Bills and Notes Act
(Canada) and deposited with the CDS Clearing and Depository Services Inc. or
any successor or other clearinghouse within the meaning of the said Act (herein
“CDS”) and may be made payable to “CDS & Co.” or in such other name
as may be acceptable to CDS and thereafter dealt with in accordance with the
procedures of CDS, consistent with the provisions hereof.  The Lenders are also authorized to issue
depository bills as replacements for previously issued Bankers’ Acceptances, on
the same terms as those replaced, and deposit them with CDS against
cancellation of the previously issued Bankers’ Acceptances.


 


6.                                      ILLEGALITY,
INCREASED COSTS, INDEMNIFICATION AND MARKET DISRUPTIONS


 


6.1                                Illegality


 


If any Lender determines that any Change in
Law has made it unlawful, or that any Governmental Authority has asserted that
it is unlawful, for any Lender or its applicable lending office to (a) make
any Advance or maintain any Advance (or to maintain its obligation to make any
Advance) or (b) determine or charge interest rates based upon any
particular rate other than as a result of any breach of the Criminal Code (Canada), then, on notice
thereof by such Lender to the Borrower through the Agent, any obligation of
such Lender with respect to the activity that is unlawful shall be suspended
until such Lender notifies the Agent and the Borrower that the circumstances
giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the Agent), have the option
of prepaying or, if conversion would avoid the unlawful activity, convert any
Advances, in order to avoid the activity that is unlawful.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or
converted.  Each Lender agrees to
designate a different lending office for funding or booking its Advances 


 


45

















 


hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such
Lender.  No payment hereunder by the
Borrower shall give rise to any additional obligations under Section 19.5
or be considered a payment under Section 2.6.1 or any cancellation of the
Credit Facility under Section 2.6.2. 
Any Lender affected under this Section 6.1 shall give the Agent and
Borrower prompt written notice of any change in circumstances that make it no
longer subject to the circumstances that require any termination of obligations
hereunder.


 


6.2                                Increased
Costs


 


6.2.1                                             General.  If any Change in Law shall:


 


6.2.1.1                                                                impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by,
any Lender;


 


6.2.1.2                                                                subject any Lender to any Tax of any kind whatsoever with respect to
this Agreement or any Advance made by it, or change the basis of taxation of
payments to such Lender in respect thereof, except for Indemnified Taxes or
Other Taxes covered by Section 6.3 and the imposition, or any change in
the rate, of any Excluded Tax payable by such Lender; or


 


6.2.1.3                                                                impose on any Lender or the applicable interbank market any other
condition, cost or expense affecting this Agreement or Advances by or owed to
such Lender;


 


and the result of any of the foregoing shall
be to increase the cost to such Lender of making any Advance or maintaining any
Advance (or of maintaining its obligation to make any such Advance), or to
reduce the amount of any sum received or receivable by such Lender (whether of
principal, interest or any other amount), then upon request of such Lender and
the delivery by such Lender to the Borrower and the Agent of the certificate
referred to in Section 6.2.3, the Borrower will pay to such Lender within
30 days of the receipt of such request and certificate such additional amount
or amounts as will compensate such Lender for such additional costs incurred or
reduction suffered. Notwithstanding the foregoing, the Borrower shall only be
obligated to pay such additional amount or amounts under this Section if the
affected Lender, as a general practice, also requires compensation therefor
from its other customers, where such other customers are bound by similar
provisions to the foregoing provisions of this Section and where, due to
the type of credit facility or other arrangements such 


 


46

















 


other customers have with such Lender or the
industry or jurisdiction where such other customers carry on business, such
Lender would be similarly affected (and because of such Lender’s
confidentiality obligations to its other customers, such conditions, if
applicable, shall be confirmed as having been satisfied by such Lender in the
certificate referred to in Section 6.2.3, which certificate shall be
conclusive absent manifest error).


 


6.2.2                                             Capital Requirements. If any Lender
determines that any Change in Law affecting such Lender or any lending office
of such Lender or such Lender’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender’s capital or on the capital of such Lender’s holding company, if
any, as a consequence of this Agreement, the Commitments of such Lender or the
Advances made by such Lender, to a level below that which such Lender or its holding
company could have achieved but for such Change in Law (taking into
consideration such Lender’s policies and the policies of its holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender such additional amount or amounts as will compensate such Lender
or its holding company for any such reduction suffered.


 


6.2.3                                             Certificates for Reimbursement. A
certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified
in subsection 6.2.1 or 6.2.2, including reasonable detail of the basis of
calculation thereof and the event by reason of which it has become so entitled
with reasonable particulars, and delivered to the Borrower shall be prima facie evidence of such amount or
amounts owed. The Borrower shall pay such Lender the amount shown as due on any
such certificate within ten days after receipt thereof.


 


6.2.4                                             Delay in Requests. Failure or delay on
the part of any Lender to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender’s right to demand such compensation,
except that the Borrower shall not be required to compensate a Lender pursuant
to this Section for any increased costs incurred or reductions suffered
more than six months prior to the date that such Lender notifies the Borrower
of the Change in Law giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor, unless the Change in
Law giving rise to such increased costs or reductions is retroactive, in which
case the six month period referred to above shall be extended to include the
period of retroactive effect thereof.


 


47

















 


6.3                                Taxes


 


6.3.1                                             Payments Free of Taxes. Any and all
payments by or on account of any obligation of each Obligor hereunder or under
any other Loan Document shall be made free and clear of and without deduction
or withholding for any Indemnified Taxes or Other Taxes.  If any Obligor, the Agent, or any Lender is
required by Applicable Law to deduct or pay any Indemnified Taxes (including
any Other Taxes) in respect of such payments by or on account of any obligation
of an Obligor hereunder or under any other Loan Document, then (a) the sum
payable shall be increased by that Obligor when payable as necessary so that
after making or allowing for all required deductions and payments (including
deductions and payments applicable to additional sums payable under this Section)
the Agent or Lender, as the case may be, receives an amount equal to the sum it
would have received had no such deductions or payments been required, (b) the
Obligor shall make any such deductions and withholdings required to be made by
it under Applicable Law and (c) the Obligor shall timely pay the full
amount required to be deducted or withheld to the relevant Governmental
Authority in accordance with Applicable Law.


 


6.3.2                                             Payment of Other Taxes by the Borrower.
Without limiting the provisions of Section 6.3.1, the Obligors shall
timely pay any Other Taxes to the relevant Governmental Authority in accordance
with Applicable Law.


 


6.3.3                                             Indemnification by the Borrower. Each
Obligor shall indemnify the Agent and each Lender, within thirty days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Agent or such
Lender and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender (with a copy to the Agent), or by the
Agent on its own behalf or on behalf of a Lender, shall be prime facie evidence of such amount or
payment.


 


6.3.4                                             Evidence of Payments. As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by an Obligor
to a Governmental Authority, the Obligor shall deliver to the Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Agent.


 


48

















 


6.3.5                                             Status of Lenders. Any Foreign Lender
that is entitled to an exemption from or reduction of withholding tax under the
law of the jurisdiction in which the applicable Obligor is resident for tax
purposes, or under any treaty to which such jurisdiction is a party, with
respect to payments hereunder or under any other Loan Document by such Obligor
shall, at the request of the Borrower, deliver to such Obligor (with a copy to
the Agent), at the time or times prescribed by Applicable Law or reasonably
requested by the Borrower or the Agent, such properly completed and executed
documentation prescribed by Applicable Law as will permit such payments to be
made without withholding or at a reduced rate of withholding. In addition, (a) any
Lender, if requested by the Borrower or the Agent, shall deliver such other
documentation prescribed by Applicable Law or reasonably requested by the
Borrower or the Agent as will enable the Borrower or the Agent to determine
whether or not such Lender is subject to such withholding or related
information reporting requirements and (b) any Lender that ceases to be,
or to be deemed to be, resident in Canada for the purposes of Part XIII of
the Income Tax Act (Canada) or
any successor provision thereto shall, within five Business Days thereof,
notify the Borrower and the Agent in writing.


 


6.3.6                                             Treatment of Certain Refunds. If the
Agent or a Lender determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by an
Obligor or with respect to which an Obligor has paid additional amounts
pursuant to this Section or that, because of the payment of such Taxes or
Other Taxes, it has benefitted from a reduction in Excluded Taxes otherwise
payable by it, it shall pay to the Borrower or other Obligor, as applicable, an
amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower or other Obligor under this Section with
respect to the Taxes or Other Taxes giving rise to such refund or reduction),
net of all out-of-pocket expenses of the Agent or such Lender, as the case may
be, and without interest (other than an amount equal to the net after-Tax
amount of any interest paid by the relevant Governmental Authority, if any,
with respect to such refund).  The
Borrower or the other Obligor, as applicable, upon the request of the Agent or
such Lender, shall repay the amount paid over to the Borrower or other Obligor
(plus any penalties, interest or other Liens imposed by the relevant
Governmental Authority) to the Agent or such Lender if the Agent or such Lender
is required to repay such refund or reduction to such Governmental
Authority.  This subsection shall not be
construed to require the Agent or any Lender to make available its tax returns
(or any other information relating to its taxes that it deems confidential) to
the Obligors or any other Person, to arrange its affairs in any particular
manner or to claim any available refund or reduction.


 


49

















 


6.4                                Breakage
Costs, Failure to Borrow or Repay After Notice


 


The Borrower shall indemnify each Lender
against any loss or expense (including any loss or expense arising from
interest or fees payable by such Lender to lenders of funds obtained by it in
order to make or maintain any Advance and any loss or expense incurred in liquidating
or re-employing deposits from which such funds were obtained) which such Lender
may sustain or incur as a consequence of any: (a) default by the Borrower
in giving a timely Notice of Borrowing, (b) default by the Borrower in
making payment when due of the amount of, or interest on, any Advance or in the
payment when due of any other amount hereunder, (c) default by the
Borrower in completing or obtaining an Advance after the Borrower has given
notice hereunder that it desires to obtain such Advance, (d) default by
the Borrower in making any voluntary reduction of the outstanding amount of any
outstanding Advance after the Borrower has given notice hereunder that it
desires to make such reduction, (e) the payment of any Libor Advance
otherwise than on the maturity date thereof (including without limitation any
such payment required pursuant to Section 2.6 or upon acceleration
pursuant to Section 15.2) and (f) the payment of any Prime Rate
Advance to any Canadian Dollar-Libor Funded Lender otherwise than on the
maturity date of the Canadian Dollar-Libor Term thereof (including without
limitation any such payment required pursuant to Section 2.6 or upon
acceleration pursuant to Section 15.2). 
A certificate of the Agent providing reasonable particulars of the
calculation of any such loss or expense shall be prima facie evidence of such amount owed.  If any Lender becomes entitled to claim any
amount pursuant to this Section 6.4, it shall promptly notify the
Borrower, through the Agent, of the event by reason of which it has become so
entitled and reasonable particulars of the related loss or expense, provided
that the failure to do so promptly shall not prejudice the Lenders’ right to
claim hereunder.


 


6.5                                Mitigation
Obligations: Replacement of Lenders.


 


6.5.1                                             Designation of a Different Lending Office. If any Lender requests compensation under Section 6.2,
requires the Borrower to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 6.3
or suspend its funding obligations hereunder pursuant to Section 6.1, then
such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Advances hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or affiliates,
if, in the judgment of such Lender, such designation or assignment (a) would
eliminate or reduce amounts payable pursuant to Section 6.2 or 6.3 or
eliminate the illegal event giving rise to the suspension of such Lender’s
obligations, as the case may be, in the future and (b) would not subject
such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender.  The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.


 


50

















 


6.5.2                                             Replacement of Lenders. If any Lender
requests compensation under Section 6.2, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 6.3, or if any Lender defaults
in its obligation to fund Advances hereunder, then the Borrower may, at its
sole expense and effort, upon ten days’ notice to such Lender and the Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Article 18),
all of its interests, rights and obligations under this Agreement and the
related Loan Documents to an Eligible Assignee that shall assume such
obligations (which Eligible Assignee may be another Lender, if a Lender accepts
such Assignment), provided that:


 


6.5.2.1                                                                the Borrower pays the Agent the assignment fee specified in
subsection 18.2.2.4;


 


6.5.2.2                                                                the assigning Lender receives payment of an amount equal to the
outstanding principal of its Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including any breakage costs and amounts required to be paid under
this Agreement as a result of prepayment to a Lender) from the Assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);


 


6.5.2.3                                                                in the case of any such Assignment resulting from a claim for
compensation under Section 6.2 or payments required to be made pursuant to
Section 6.3, such Assignment will result in a reduction in such
compensation or payments thereafter; and


 


6.5.2.4                                                                such Assignment does not conflict with Applicable Law.


 


A Lender shall not be required to make any
such Assignment or delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such Assignment and delegation cease to apply.


 


6.6                                Market
for Bankers’ Acceptances and Libor Advances


 


If the Lenders determine, after reasonable
efforts, at any time or from time to time that: (a) there no longer exists
a market for Bankers’ Acceptances, or (b) as a result of market
conditions, (i) there exists no appropriate or reasonable method to
establish LIBOR for a


 


51














 


Selected Amount or a Designated Period or (ii) US
Dollar deposits are not available to the Lenders in such market in the Ordinary
Course in amounts sufficient to permit them to make a Libor Advance for a
Selected Amount or a Designated Period, such Lenders shall so advise the Agent,
and the Agent shall so notify the Borrower, and any such Lenders shall not be
obliged to accept drafts of the Borrower presented to such Lenders pursuant to
the provisions of this Agreement nor to honour any Notices of Borrowing in
connection with any Libor Advances, and the Borrower’s option to request BA
Advances or Libor Advances, as the case may be, shall thereupon be suspended
upon notice by the Agent to the Borrower until the circumstances giving rise to
such suspension no longer exist. Thereafter, the Lenders shall promptly notify
the Agent, which shall promptly notify the Borrower, of any change in
circumstances of which they become aware which results in the existence of such
market for Bankers’ Acceptances or a reasonable method of establishing LIBOR or
availability of US Dollar deposits.


 


7.                                       PROVISIONS
RELATING TO PAYMENTS


 


7.1                                Payment
of Losses Resulting From a Prepayment


 


If a prepayment in respect of a Libor Advance
is made on a date other than the final day of the Designated Period applicable
to such Libor Advance contrary to the provisions of this Agreement,
simultaneously with such prepayment, the Borrower shall pay to the Lenders the
losses, costs and expenses suffered or incurred by the Lenders with respect to such
prepayment which are referred to in Section 6.4.  Any attempted prepayment of a BA Advance
shall be treated as a payment into an escrow account and dealt with in
accordance with Section 15.4.


 


7.2                                Imputation
of Prepayments


 


All prepayments made in accordance with Section 2.6
shall be applied to repay all or part of the principal amount of the
outstanding Loan Obligations under the Credit Facility.


 


7.3                                Currency
of Payments


 


All payments, repayments or prepayments, as
the case may be:


 


7.3.1                                             of principal under the Loan Obligations or any part thereof, shall
be made in the same currency as that in which they are outstanding;


 


7.3.2                                             of interest, shall be made in the same currency as the principal
amount outstanding to which they relate;


 


7.3.3                                             of fees, shall be made in US Dollars alone; and


 


7.3.4                                             of the amounts referred to in Section 6.4, shall be made in the
same currency as the losses, costs and expenses suffered or incurred by the
Lenders.


 


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7.4                                Payments
by the Borrower to the Agent


 


All payments to be made by the Borrower in
connection with this Agreement shall be made to the Agent, at the Branch (or at
any other office or account in Toronto designated by the Agent) in funds having
same day value no later than 2:00 p.m. on the day any such payment is due.


 


7.5                                Payment
on a Business Day


 


Each time a payment, repayment or prepayment
is due on a day that is not a Business Day, it shall be made on the next
Business Day together with applicable interest during such extension.


 


7.6                                Payments
by the Lenders to the Agent


 


Any amounts payable to the Agent by a Lender
shall be paid in funds having same day value to the Agent by the Lenders on a
Business Day at the Branch.


 


7.7                                Netting


 


On any Drawdown Date (a “Transaction Date”), the Agent shall be
entitled to net amounts payable on such date by the Agent to a Lender under
this Agreement against amounts payable in the same currency on such date by
such Lender to the Agent under this Agreement, for the account of the
Borrower.  Similarly, on any Transaction
Date, the Borrower hereby authorizes each Lender to net amounts payable under
this Agreement in one currency on such date by such Lender to the Agent, for
the account of the Borrower, against amounts payable under this Agreement in
the same currency on such date by the Borrower to such Lender in accordance
with the Agent’s calculations made in accordance with the provisions of this
Agreement.


 


7.8                                Application
of Payments


 


Except as otherwise indicated herein, all payments
made to the Agent by the Borrower for the account of the Lenders shall be
distributed the same day by the Agent, in accordance with its normal practice,
in funds having same day value, among the Lenders to the accounts last
designated in writing by each Lender to the Agent, pro rata in accordance with their respective Applicable
Percentage, subject to adjustment, if necessary, as a result of any
disproportion in Loan Obligations that may be owing to a Lender, whether as a
result of netting pursuant to subsection 7.7 or otherwise.


 


7.9                                No
Set-Off or Counterclaim by Borrower


 


All payments by the Borrower shall be made
free and clear of and without any deduction or withholding for or on account of
any set-off or counterclaim.


 


7.10                          Debit
Authorization


 


The Agent is hereby authorized to debit each
of the Obligor’s account or accounts maintained from time to time at the Branch
or elsewhere, for the amount of any interest 


 


53

















 


or any other amounts due and owing hereunder
from time to time payable by the Obligors, in order to obtain payment thereof.


 


8.                                       GUARANTEES


 


8.1                                Guarantees


 


8.1.1                                             On or prior to the Closing Date, there shall have been delivered to
the Agent, for and on behalf of and for the benefit of the Supported Parties,
by each Material Subsidiary (as determined as of such date) the unconditional
and unlimited guarantees of the Loan Obligations and the Other Supported
Obligations, in form and substance satisfactory to the Lenders, acting
reasonably.


 


8.1.2                                             Notwithstanding Section 8.1.1, no Material Subsidiary shall be
required to grant to the Agent, for and on behalf of and for the benefit of the
Supported Parties, such a Guarantee if (a) it is prohibited from doing so
under its Constating Documents and its Constating Documents cannot be amended
to permit the granting of a Guarantee, provided that, if it is prohibited under
its Constating Documents from granting an unlimited guarantee of the Loan
Obligations and the Other Supported Obligations, but not a limited guarantee of
the Loan Obligations and the Other Supported Obligations, it shall grant a
limited guarantee of the Loan Obligations and the Other Supported Obligations
to the maximum extent permitted by its Constating Documents, (b) it is
prohibited from doing so under Applicable Law, provided that, if it is
prohibited from granting an unlimited guarantee of the Loan Obligations and the
Other Supported Obligations, but not a limited guarantee of the Loan
Obligations and the Other Supported Obligations, it shall grant a limited
guarantee of the Loan Obligations and the Other Supported Obligations to the
maximum extent permitted by Applicable Law, (c) the Agent, in consultation
with the Borrower, determines, acting reasonably, that the cost of obtaining
such a guarantee of the Loan Obligations and the Other Supported Obligations
are excessive in relation to the value of the guarantee to the Lenders or (d) it
has been designated by the Borrower as a “non-recourse
Material Subsidiary” and such designation has been accepted by each
Lender.


 


8.2                                Additional
Guarantors


 


The Borrower shall give prompt written notice
to the Agent of each Person that becomes a Material Subsidiary after the
Closing Date, and the Borrower shall, within 30 days of such Person becoming a
Material Subsidiary, cause each such Person to become a party to this Agreement
by delivery of an agreement in the form of Exhibit F and, subject to Section 8.1.2,
to deliver to the Agent, for and on behalf of and for the benefit of the
Supported Parties, an unconditional and unlimited guarantee of the Loan
Obligations and 


 


54

















 


the Other Supported Obligations (or, to the
extent required by Section 8.1.2, a limited guarantee of the Loan
Obligations and the Other Supported Obligations), in form and substance
satisfactory to the Lenders, acting reasonably, together with all other items
contemplated by Sections 9.1.3, 9.1.4 and 9.1.6, which relate to such Material
Subsidiary.


 


8.3                                Obligations
Supported by the Guarantees


 


All guarantees delivered under this Article 8
shall support and secure the following debts, liabilities and obligations
which, it is agreed by the Lenders among themselves, shall rank pari passu with each other:


 


8.3.1                                             the Loan Obligations;


 


8.3.2                                             the Other Supported Obligations; and


 


8.3.3                                             all other indebtedness, liabilities and obligations of the Obligors
under the Loan Documents.


 


8.4                                Other
Supported Obligations


 


As of the date of this Agreement, the Other
Supported Obligations are those listed in Schedule C.  Upon request by a Lender, the Agent shall,
from time to time, prepare and provide the Lenders and the Borrower with a
revision of Schedule C to reflect changes in the Other Supported Obligations to
the extent notified in writing by the Borrower to the Agent, but any failure to
do so shall not affect the guarantees of any Other Supported Obligations in
favour of any Other Supported Parties. 
Other Supported Obligations in favour of the Other Supported Parties
listed on Schedule C from time to time shall be conclusively deemed to be
guaranteed by the Guarantees (in the absence of manifest error) and shall not
cease to be guaranteed without the prior written consent of the respective
Other Supported Parties to whom the Other Supported Obligations are owed unless
such Other Supported Party ceases (or, in the case of an Affiliate of a Lender
which is an Other Supported Party, such Lender ceases) to be a Lender.  Each Other Supported Party, by its acceptance
of the benefit of any Guarantees, shall be deemed to have accepted and be bound
by the provisions of this Agreement applicable to Other Supported Parties and
regarding the terms upon which the Other Supported Obligations are supported by
the Guarantees, and authorizes and directs the Agent to act accordingly.


 


8.5                                Limitation


 


Notwithstanding the rights of Other Supported
Parties to benefit from the Guarantees in respect of the Other Supported
Obligations, all decisions concerning the Guarantees and the enforcement
thereof shall be made by the Lenders or the Majority Lenders, as applicable, in
accordance with this Agreement.  No Other
Supported Party holding Other Supported Obligations from time to time shall
have any additional right to influence the Guarantees or the enforcement
thereof as a result of holding Other Supported Obligations as long as this
Agreement remains in force.


 


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9.                                       CONDITIONS
PRECEDENT


 


9.1                                Initial
Advance under the Credit Facility


 


The following conditions precedent must be satisfied
at or before the time of the initial Advance under this Agreement, unless
waived by the Lenders. Where delivery of any document or instrument is referred
to, each such document or instrument shall be delivered to the Agent for and on
behalf of the Lenders and shall be in full force and effect and in form and
substance satisfactory to the Lenders.


 


9.1.1                                             Loan Documents.  All Loan Documents shall have been executed
and delivered by the parties thereto.


 


9.1.2                                             Release of Liens.  The Agent shall have received releases and
discharges, or evidence thereof or payout particulars and undertakings in
relation thereto, in relation to all Liens affecting the Property of the
Obligors which are not Permitted Liens in all applicable jurisdictions.


 


9.1.3                                             Corporate and Other Information. The
Agent shall have received a certificate from each Obligor with copies of its
Constating Documents, a list of its officers, directors, trustees and/or
partners, as the case may be, who are executing or who have executed Loan Documents
on its behalf with specimens of the signatures of those persons, and copies of
the corporate (or other equivalent) proceedings taken to authorize it to
execute, deliver and perform its obligations under the Loan Documents and all
internal approvals and authorizations of each Obligor to permit it to enter
into and to perform its obligations in relation thereto.


 


9.1.4                                             Certificates of Status/Compliance. The
Agent shall have received, where available, a certificate of status,
certificate of compliance or an equivalent certificate issued by the relevant
Governmental Authority in respect of each Obligor, dated within seven days of
the Closing Date, evidencing the status or good standing of such Obligor in its
jurisdiction of incorporation or formation.


 


9.1.5                                             Compliance Certificate. The Agent shall
have received a Compliance Certificate dated as of the Closing Date in respect
of the fiscal quarter of the Borrower immediately preceding the Closing Date
which demonstrates compliance with the financial covenants set out in Section 11
as of the end of the June 30, 2008 fiscal quarter.


 


9.1.6                                             Opinions. The Agent shall have received
the following favourable legal opinions, in form and substance satisfactory to
it:


 


9.1.6.1                                                                the opinion of Davies Ward Phillips & Vineberg LLP, counsel
to the Borrower, 1715495 Ontario Inc. and 1641315 Ontario Inc., addressed to
the Agent and the Lenders, in relation to, among other things, the Borrower,
1715495 Ontario Inc. and 1641315 Ontario Inc., and the Loan Documents to which
they are a 


 


56

















 


party and such other matters as the Lenders
may reasonably require; and


 


9.1.6.2                                                                the opinion of counsel to each other Guarantor, addressed to the
Agent and the Lenders, in relation to, among other things, such other
Guarantor, and the Loan Documents to which it is a party and such other matters
as the Lenders may reasonably require.


 


9.1.7                                             Other Matters.                    The following conditions must also be satisfied:


 


9.1.7.1                                                                there shall not have occurred or be existing any event or
circumstance which has, or would reasonably be expected to have, material adverse effect on the
business, property, assets, liabilities, conditions (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole, or prospects of the
Borrower and its Subsidiaries taken as a whole, since  December 31, 2007;


 


9.1.7.2                                                                all reasonably documented fees and expenses payable under the Loan
Documents and the Fee Letter (including upfront fees, agency fees, and legal
fees and expenses of the Lenders’ counsel invoiced prior to the Closing Date)
shall have been paid;


 


9.1.7.3                                                                as of the Closing Date, there are and will be no actions, suits,
arbitration or administrative proceedings or industrial or labour disputes
outstanding, pending or threatened against any of the Obligors which would
reasonably be expected to have a Material Adverse Effect;


 


9.1.7.4                                                                the Borrower shall have executed and delivered to the Agent and the
Lenders a certificate stating that, after giving effect to Amendment No. 1
to Credit Agreement dated the date hereof (amending the First Credit
Agreement), the execution, delivery and performance by the Obligors of this
Agreement and the other Loan Documents does not breach, or constitute a “Default”
or “Event of Default” under, the First Credit Agreement, and the incurrence by
the Borrower of any Debt under this Agreement is Permitted Debt (as defined in
the First Credit Agreement); and


 


9.1.7.5                                                                the Agent shall have received such other documents as the Lenders
may reasonably require.


 


57

















 


9.2                                Conditions
Precedent to each Advance


 


The obligation of the Lenders to make any
Advance (including the initial Advance) is subject to the conditions precedent
that:


 


9.2.1                                             the representations and warranties contained in this Agreement,
other than those expressly stated to be made as of a specific other date or
otherwise expressly modified in accordance with Section 10.17, are true
and correct in all material respects on the date of the Advance as if made on
and as of the date of the Advance;


 


9.2.2                                             the Agent shall have received a timely, completed Notice of
Borrowing;


 


9.2.3                                             no Default or Event of Default shall have occurred and be
continuing;


 


provided that, a rollover, conversion or extension of an existing
Advance shall not be subject to the conditions precedent set out in Subsections
9.2.1 and 9.2.2.


 


9.3                                Waiver
of Conditions Precedent


 


The conditions set out in Sections 9.1 and
9.2 are solely for the benefit of the Lenders. 
The conditions set out in Section 9.1 may be waived by the Agent
with the consent of each Lender.  The
conditions set out in Section 9.2 may be waived in respect of a particular
Advance by the Majority Lenders, without prejudice to the right of the Agent
and the Lenders to assert any such condition in connection with any
subsequently requested Advance.


 


10.                                 REPRESENTATIONS
AND WARRANTIES


 


For so long as any Loan Obligations remain
outstanding and unpaid (other than those Loan Obligations which survive the
termination of this Agreement), or the Borrower is entitled to borrow or obtain
credit hereunder (whether or not the conditions precedent to such borrowing or
obtaining of credit have been or may be satisfied), the Borrower hereby
represents and warrants with respect to itself and each other Obligor, and each
other Obligor hereby represents and warrants with respect to itself, that:


 


10.1                          Existence,
Power and Authority


 


It has the corporate (or other equivalent)
power and authority to enter into and perform its obligations under each Loan
Document to which it is a party, and except as permitted under Section 14.10
after the Closing Date, it is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, amalgamation
or organization.


 


58

















 


10.2                          Loan
Documents


 


10.2.1                                       It is not required to obtain any Permit or to effect any filing or
registration with any Governmental Authority in connection with the execution,
delivery or performance of this Agreement or the other Loan Documents to which
it is a party.


 


10.2.2                                       The entering into and the performance by it of the Loan Documents to
which it is a party (a) have been duly authorized by all necessary
corporate or other action on its part, (b) do not and will not violate its
Constating Documents or any Applicable Law, (c) do not and will not result
in a breach of or constitute (with the giving of notice, the lapse of time or
both) a default under or require a consent under any Material Permit or any
Material Contract to which it is a party or by which it or its Property is
bound, and (d) do not and will not result in the creation of any Lien on
any of its Property and will not require it to create any Lien on any of its
Property and will not result in the forfeiture of any of its Property.


 


10.2.3                                       Its Constating Documents do not restrict the power of its directors,
trustees or partners, as the case may be, to borrow money or to give financial
assistance by way of loan, guarantee or otherwise, except for restrictions
under any Constating Document with which have been complied.


 


10.2.4                                       The Loan Documents to which it is or will be a party have been or
will be duly executed and delivered by it (or on its behalf) and, when executed
and delivered, will constitute legal, valid and binding obligations enforceable
against it in accordance with their respective terms, subject to the
availability of equitable remedies and the effect of bankruptcy, insolvency and
other laws of general application limiting the enforceability of creditors’
rights generally, and equitable principles, and to the fact that equitable
remedies, including specific performance and injunctive relief, are
discretionary and may not be ordered in respect of certain defaults.


 


10.3                          Conduct
of Business


 


10.3.1                                       It is qualified to carry on business in all jurisdictions in which
the Property owned or leased by it or the nature of the activities carried on
by it makes such qualification necessary, except to the extent that the
non-qualification would not reasonably be expected to have a Material Adverse
Effect.


 


10.3.2                                       It has all Permits required to own its Property and to carry on the
business in which it is engaged (at the time this representation and warranty
is given) and all such Permits are in good standing, except to the extent that
the absence of Permits or lack of good standing of 


 


59

















 


Permits would not reasonably be
expected to have a Material Adverse Effect.


 


10.3.3                                       It is not in violation of any Applicable Law or Contract, the
violation of which would reasonably be expected to have a Material Adverse
Effect.


 


10.3.4                                       As at the Closing Date, the only business carried on by it is the
Core Business.


 


10.4                          Litigation


 


There are no actions, suits or legal
proceedings instituted or pending nor, to its knowledge, threatened, against it
or its Property before any arbitrator or any other Governmental Authority or
instituted by any Governmental Authority which, if decided against it, would
reasonably, considered on a consolidated basis with the other Obligors, be
expected to have a Material Adverse Effect. 
As at the Closing Date, the only material litigation against it is
described in Schedule D.


 


10.5                          Financial
Statements and Information


 


10.5.1                                       The historical financial statements which have been furnished to the
Agent and the Lenders, or any of them, in connection with this Agreement, taken
as a whole, are complete and fairly present the financial position of the
Borrower on a consolidated basis as of the dates referred to therein and have
been prepared in accordance with GAAP.


 


10.5.2                                       All projections, including forecasts, budgets, pro formas and
business plans of the Borrower on a consolidated basis provided by the Borrower
to the Agent and the Lenders, or any of them, under or in connection with this
Agreement were prepared in good faith based on assumptions which, at the time
of preparation thereof, were believed to be reasonable and are believed to be
reasonable estimates of the prospects of the businesses referred to therein.


 


10.5.3                                       It is not in default under any Permitted Lien, or any Contract
creating or otherwise relating to a Permitted Lien, to the extent that such
defaults, together with any such defaults by the other Obligors, would reasonably
be expected to have a Material Adverse Effect.


 


10.5.4                                       It has (a) no Debt that is not permitted under Section 14.1,
(b) except as disclosed in writing to the Agent, no material Contingent
Obligations which are not disclosed or referred to in the most recent financial
statements delivered in accordance with Section 13.1 and (c) except
as disclosed in writing to the Agent, not incurred any Debt which is not
disclosed in or reflected in such financial statements, 


 


60

















 


other than Debt incurred in the
Ordinary Course since the date of such financial statements.


 


10.6                          Subsidiaries,
etc.


 


10.6.1                                       Schedule E fully and fairly describes, as of the Closing Date, the
ownership of all of its issued and outstanding Equity Interests and of Equity
Interests that it owns in other Persons. 
Except as set out in Schedule E, as of the Closing Date, it does not
have any Subsidiaries, direct or indirect, is not a partner in any partnership
(general or limited) and is not a co-venturer in any joint venture, as of the
date hereof.


 


10.6.2                                       The complete and accurate organization structure of the Obligors as
of the Closing Date is set forth on Schedule E.


 


10.7                          Title
to Property


 


It has good title to all material personal or
movable Property and good and marketable title to all material real or
immovable Property or material leasehold interests therein owned or leased by
it, free and clear from any Liens, other than any Permitted Liens.


 


10.8                          Taxes


 


It has filed within the prescribed time
periods all federal, provincial or other tax returns which it is required by
Applicable Law to file, and all material taxes, assessments and other duties
levied by each applicable Governmental Authority with respect to each of the
Obligors have been paid when due, except to the extent that payment thereof is
being contested in good faith by it in accordance with the appropriate
procedures, for which adequate reserves have been established in its books.


 


10.9                          Insurance


 


It has contracted for the insurance coverage
described in Section 12.8, which insurance is in full force and effect.


 


10.10                    No
Material Adverse Effect


 


No event has occurred and no circumstance
exists which would reasonably be expected to have a Material Adverse Effect.


 


10.11                    Pension
Matters


 


10.11.1                                 No steps have been taken to terminate any Pension Plan (wholly or in
part), which would result in an Obligor being required to make an additional
contribution to the Pension Plan; no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien or charge under
any Applicable Laws of any jurisdiction


 


61














 


governing pension benefits; no
condition exists and no event or transaction has occurred with respect to any
Pension Plan which might result in the incurrence by any Obligor of any
liability, fine or penalty; and no Obligor has any contingent liability with
respect to any post-retirement non-pension benefit; in each case, that would
reasonably be expected to have a Material Adverse Effect.


 


10.11.2                                 Each Pension Plan is in compliance in all material respects with all
Applicable Laws governing pension benefits and Taxes, (i) all
contributions (including employee contributions made by authorized payroll
deductions or other withholdings) required to be made to the appropriate
funding agency in accordance with all Applicable Laws and the terms of each
Pension Plan have been made in accordance with all Applicable Laws and the
terms of each Pension Plan, (ii) all liabilities under each Pension Plan
are fully funded, on a going concern and solvency basis, in accordance with the
terms of the respective Pension Plans, the requirements of Applicable Laws
governing pension benefits and the most recent actuarial report filed with
Governmental Authorities with respect to the Pension Plan, and (iii) no
event has occurred and no conditions exist with respect to any Pension Plan
that has resulted or would reasonably be expected to result in any Pension Plan
having its registration revoked or refused for the purposes of any Applicable
Laws governing pension benefits or Taxes or being placed under the
administration of any relevant pension benefits Governmental Authority or being
required to pay any Taxes or penalties under any Applicable Laws governing
pension benefits or Taxes, except for any exceptions to clauses (i) through
(iii) above that would not reasonably be expected to have a Material
Adverse Effect.


 


10.12                    Ranking
and Priority


 


The Loan Obligations are unsecured
unsubordinated obligations of the Borrower ranking pari passu with all other unsecured unsubordinated Debt of
the Borrower.  The Guarantor Obligations
are unsecured unsubordinated obligations of each Guarantor ranking pari passu with all other unsecured
unsubordinated Debt of such Guarantor.


 


10.13                    Absence
of Default


 


There exists no Default or Event of Default
hereunder.


 


10.14                    Environment


 


10.14.1                                 Other than as disclosed in Schedule D, there are no existing claims,
demands, damages, suits, proceedings, actions, negotiations or causes of action
of any nature whatsoever, whether pending or, to its knowledge, threatened,
arising out of the presence on any Property owned or controlled by it, either
past or present, of any Hazardous 


 


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Substances, or out of any past
or present activity conducted on any Property now owned by it, whether or not
conducted by such or any other Obligor, involving Hazardous Substances, which
would reasonably be expected to have a Material Adverse Effect.


 


10.14.2                                 To its knowledge, after due enquiry:


 


10.14.2.1                                                    there are no Hazardous Substances existing on or under any Property
of any Obligor which constitutes a violation of any Environmental Law for which
an owner, operator or person in control of a Property may be held liable other
than such as would not reasonably be expected to have a Material Adverse
Effect;


 


10.14.2.2                                                    the business of each of the Obligors is being carried on so as to
comply in all material respects with all Environmental Laws and all Applicable
Laws concerning health and safety matters other than any non-compliance which
would not reasonably be expected to have a Material Adverse Effect; and


 


10.14.2.3                                                    no Hazardous Substance has been spilled or emitted into the
environment contrary to Environmental Laws from any Property owned, operated or
controlled by any Obligor other than such as would not reasonably be expected
to have a Material Adverse Effect.


 


10.15                    Mines


 


As of the Closing Date, the Goldex Mine, the
Lapa Mine, the LaRonde Mine and the Meadowbank Mine are each owned by the
Borrower. As of the Closing Date, the Kittila Mine is owned by Agnico-Eagle AB,
a Swedish corporation, which is an indirect, wholly-owned Subsidiary of the
Borrower, or by another Obligor, and the Pinos Altos Mine is owned by
Agnico-Eagle Mexico S.A. de C.V., a Mexican corporation which is an indirect,
wholly-owned Subsidiary of the Borrower, or by another Obligor.


 


10.16                    Complete
and Accurate Information


 


All written information, reports and other
papers and data with respect to the Obligors or their Properties which have
been furnished by the Borrower to the Agent or the Lenders were, at the time
the same were so furnished, complete and correct in all material respects.  No document furnished or statement made in
writing to the Agent or the Lenders by the Borrower in connection with the
negotiation, preparation or execution of the Loan Documents at the time the
same were furnished or made contains any untrue statement of a material fact or
omits to state a material fact which is necessary to make the statements
contained in such documents true and accurate in all material respects.


 


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10.17                    Survival
of Representations and Warranties


 


All of the representations and warranties
made hereunder are true and correct at the Closing Date, shall be true and
correct (and shall be deemed to be repeated and made) as of the date of each
Advance hereunder (except for rollovers and conversions of existing Advances
and where qualified in this Article 10 as being made at a particular other
date, for which such representations and warranties shall be true and correct
as at that particular other date, and subject to such modifications permitted
herein which are communicated by the Borrower to the Agent in writing), and
shall survive the execution and delivery of this Agreement, any investigation
by or on behalf of the Lenders or the making of any Advance hereunder, if any
of the same are waived they shall only be waived in writing.  The Lenders shall be deemed to have relied
upon such representations and warranties at each such time as a condition of
making an Advance hereunder or continuing to extend the Credit Facility
hereunder. The acceptance by the Borrower of any Advances issued on the Closing
Date shall be deemed to be a representation and warranty made by the Borrower
to the effect that all of the conditions precedent to the making of such
Advances have been satisfied, except to the extent any such conditions
precedent have been waived by the Lenders.


 


11.                                 FINANCIAL
COVENANTS


 


For
so long as any Loan Obligations remain outstanding (other than those Loan
Obligations that survive termination of this Agreement), or the Borrower is
entitled to borrow or obtain credit hereunder (whether or not the conditions
precedent to such borrowing or obtaining of credit have been or may be
satisfied):


 


11.1                          Total
Net Debt to EBITDA Ratio


 


The Borrower shall, at all times, maintain a
Total Net Debt to EBITDA Ratio of not more than 3.50:1.00, on a rolling
four-quarter basis.


 


11.2                          Current
Ratio


 


The Borrower shall, at all times, maintain a
Current Ratio of not less than 1.10:1.00.


 


11.3                          Tangible
Net Worth


 


From
September 30, 2007 to December 30, 2007, the Borrower shall, at all times, have
maintained a Tangible Net Worth in an amount of not less than US$1,300,000,000,
and commencing with the fiscal quarter ending December 31, 2007 and thereafter,
the Borrower shall, at all times, have maintained or shall maintain, as
applicable, a Tangible Net Worth in an amount of not less than
US$1,300,000,000, plus 50% of the Borrower’s consolidated net income for each
of its fiscal quarters, on a cumulative basis, commencing with its fiscal
quarter ending December 31, 2007 (excluding any fiscal quarters in which the
Borrower incurs a net loss) (all as determined on a consolidated basis in
accordance with GAAP consistently applied), plus 50% of the net proceeds of any
public offerings of Equity Interests (other than convertible Debt) of the
Borrower received during such fiscal quarters, on a cumulative basis.


 


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12.                                 AFFIRMATIVE
COVENANTS


 


For
so long as any Loan Obligations remain outstanding (other than those Loan
Obligations that survive termination of this Agreement), or the Borrower is
entitled to borrow or obtain credit hereunder (whether or not the conditions
precedent to such borrowing or obtaining of credit have been or may be
satisfied), each Obligor agrees as follows:


 


12.1                          Existence
and Good Standing


 


It shall (a) except as may be permitted
by Section 14.10, preserve and maintain, as applicable, its corporate or
other form of existence, (b) operate its affairs in compliance with its
Constating Documents and (c) except as may be permitted by Section 14.10,
remain in good standing in all applicable jurisdictions except to the extent
that a failure to remain in good standing would not reasonably be expected to
have a Material Adverse Effect.


 


12.2                          Permits


 


It shall at all times maintain in effect and
obtain all Permits required by it to carry on its business, except to the
extent that a failure to do so would not reasonably be expected to have a Material
Adverse Effect.


 


12.3                          Books
and Records


 


It shall keep or cause to be kept appropriate
books and records of account and record or cause to be recorded faithfully and
accurately all transactions with respect to its business in accordance with
GAAP.


 


12.4                          Property


 


It shall maintain all of its Property
necessary for the proper conduct of its business in good condition (ordinary
wear and tear excepted) and make all necessary repairs, renewals, replacements
and improvements thereof, except where the failure to do same would not
reasonably be expected to have a Material Adverse Effect.


 


12.5                          Material
Contracts


 


It shall maintain in good standing and shall
obtain, as and when required, all Material Contracts which it requires to
permit it to acquire, own, operate and maintain its business and Property,
except to the extent that a failure to do so would not reasonably be expected
to have a Material Adverse Effect, and perform its obligations under any Loan
Document to which it is or will be a party. 
It shall cause to be faithfully observed, performed and discharged the
covenants, conditions and obligations imposed on it under each Material
Contract to which it is a party, and shall do all other things necessary in
order to protect its interests thereunder, except to the extent and for so long
as any such obligation is contested in good faith by appropriate proceedings
being diligently pursued, or except where the failure to do same would not
reasonably be expected to have a Material Adverse Effect.


 


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12.6                          Financial
Information


 


It shall ensure that:


 


12.6.1                                       all of the historical financial statements which are furnished to
the Agent and the Lenders, or any of them, in connection with this Agreement
from time to time are complete and fairly present the financial position of the
Borrower on a consolidated basis as of the dates referred to therein and are
prepared in accordance with GAAP; and


 


12.6.2                                       all projections, including forecasts, budgets, pro formas and business
plans of the Borrower on a consolidated basis provided by the Borrower to the
Agent and the Lenders, or any of them, under or in connection with this
Agreement from time to time are prepared in good faith based on assumptions
which are, at the time of preparation thereof, believed to be reasonable and
are believed to be reasonable estimates of the prospects of the businesses
referred to therein.


 


12.7                          Compliance
with Applicable Law


 


It shall operate its business in compliance
with Applicable Laws (including Environmental Laws) except to the extent that a
failure to do so would not reasonably be expected to have a Material Adverse
Effect.


 


12.8                          Insurance


 


It shall maintain insurance coverage with
financially sound and reputable insurance companies or associations, including
all-risk property insurance, comprehensive general liability insurance and
business interruption insurance, in amounts and against risks customarily
insured by owners of similar businesses or Property in areas which are
generally similar to those in which the Obligors are engaged.


 


12.9                          Payment
of Taxes


 


It shall pay all Taxes when due and payable;
withhold from each payment made to any of its past or present employees,
officers or directors, and to any non-resident of the country in which it is
resident, the amount of all Taxes and other deductions required to be withheld
therefrom and pay the same to the proper tax or other receiving officers within
the time required under any Applicable Law; and collect from all Persons the
amount of all Taxes required to be collected from them and remit the same to
the proper tax or other receiving officers within the time required under any
Applicable Law; in each case, unless any such Taxes are (a) being
contested in good faith by appropriate proceedings promptly initiated and
diligently conducted and (b) reserves or other appropriate provision, if
any, as shall be required by GAAP shall have been made therefor.


 


12.10                    Access
and Inspection


 


It shall allow the employees and
representatives of the Agent and/or the Lenders, at any time during normal
business hours and on reasonable notice, to have access to and 


 


66

















 


inspect the Property of the Obligors (without
any invasive or intrusive testing), to inspect and take extracts from or copies
of the books and records of the Obligors and to discuss the business, Property,
liabilities, financial position, operating results or business prospects of the
Obligors with the officers and auditors of the Obligors, all at the cost of the
Agent and/or the Lenders, as the case may be; provided that, the employees and
representatives of the Lenders shall only have such access and rights of
inspection and discussion at the same time or times as the employees and
representatives of the Agent have such access and rights of inspection and
discussion. Notwithstanding the foregoing, if an Event of Default has occurred
and is continuing, it shall allow the Agent and/or the Lenders, their employees
and representatives, and any third party consultants or engineers designated by
the Agent, and their respective employees and representatives, at any time, to
have access to and inspect the Property of the Obligors, to inspect and take
extracts from or copies of the books and records of the Obligors and to discuss
the business, Property, liabilities, financial position, operating results or
business prospects of the Obligors with the officers and auditors of the
Obligors, all at the cost of the Borrower; provided that, the employees and representatives
of the Lenders shall only have such access and rights of inspection and
discussion at the same time or times as the employees and representatives of
the Agent have such access and rights of inspection and discussion.


 


12.11                    Maintenance
of Accounts


 


It shall maintain one or more operating
accounts at the Branch or other branches of the Agent at all times during the
term of this Agreement.


 


12.12                    Performance
of Obligations


 


It shall duly and punctually pay and perform
its indebtedness, liabilities and obligations hereunder and under the other
Loan Documents at the times and places and in the manner required by the terms
hereof and thereof.


 


12.13                    Litigation


 


It shall diligently and in good faith contest
any actions, suits or legal proceedings instituted and outstanding or pending
against it, the outcome of which would reasonably be expected to have a
Material Adverse Effect, and shall make such reserves or other appropriate
provision therefor, if any, as shall be required by GAAP.


 


12.14                    Payment of Fees and Other Expenses


 


Whether the transactions contemplated by this
Agreement are concluded or not and whether or not any part of the Credit
Facility is actually advanced, in whole or in part, the Borrower shall pay:


 


12.14.1                                 the reasonable, documented costs of syndicating, as well as the
legal fees and costs incurred by the Agent, acting on behalf of the Lenders,
for the preparation, negotiation, execution, delivery, administration,
registration, publication and/or service of the term sheet and related
documentation, this Agreement and the other Loan Documents, as well 


 


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as any amendments,
modifications, waivers, consents or examinations pertaining to this Agreement
and the other Loan Documents; and


 


12.14.2                                 all reasonable, documented fees and out-of-pocket costs and
expenses, including the legal fees and costs, incurred by the Agent, any Lender
to preserve, enforce, protect or exercise its rights hereunder or under the
other Loan Documents, including all such fees and costs incurred during any
workout, restructuring or negotiations in respect of the Credit Facility, any
Advances and any Loan Obligations, provided that the Borrower shall not be
required to pay the legal fees of more than one set of counsel for the Agent
and the Lenders as a collective unit, without limiting that collective unit
from retaining as many counsel in as many jurisdictions as that collective unit
requires, acting together;


 


provided that, the Borrower shall not be
responsible for the fees and expenses of any independent engineer or
independent consultants appointed or consulted pursuant to Section 19.3
except to the extent that such appointment or consultation occurred upon and
during the continuance of an Event of Default. All amounts due to the Agent and
the Lenders pursuant to this Section 12.14 shall bear interest on the
Prime Rate Basis from the date that is 30 days following demand (together with
the delivery of any relevant invoice) by the Agent until the Borrower has paid
the same in full, with interest on unpaid interest.  The obligations of the Borrower under this Section 12.14
as such obligations relate to costs and expenses incurred prior to the
repayment of the Loan Obligations and termination of the Credit Agreement shall
survive the repayment of the Loan Obligations and the termination of the
Commitments.


 


13.                                 REPORTING
AND NOTICE REQUIREMENTS


 


During the term of this
Agreement (excluding the duration of any provision hereof that survives
termination of this Agreement), the Borrower shall deliver the reports
specified below and shall give notices in the circumstances specified below,
all in a form satisfactory to the Lenders, acting reasonably.


 


13.1                          Financial
and Other Reporting


 


13.1.1                                       The Borrower shall, as soon as practicable and in any event within
60 days of the end of each of its first three fiscal quarters, cause to be
prepared and delivered to the Agent, its unaudited consolidated financial
statements as at the end of such quarter, in each case including, without
limitation, balance sheet, statement of income and retained earnings, statement
of changes in financial position and management’s discussion and analysis.


 


13.1.2                                       The Borrower shall, as soon as practicable and in any event within
120 days after the end of each of its fiscal years, prepare and deliver to the
Agent its consolidated annual financial statements, including, without
limitation, balance sheet, statement of income and retained earnings, 


 


68

















 


statement of changes in
financial position for such fiscal year and management’s discussion and
analysis, together with the notes thereto, which shall be audited by a
nationally recognized accounting firm.


 


13.1.3                                       The Borrower shall, concurrently with the delivery of the quarterly
and annual financial statements referred to in subsections 13.1.1 and 13.1.2,
provide the Agent with a Compliance Certificate.


 


13.1.4                                       The Borrower shall, concurrently with the delivery of the quarterly
and annual financial statements referred to in subsections 13.1.1 and 13.1.2,
provide the Agent with a report setting forth each Derivative Instrument to
which it or any other Obligor is a party, together with the counterparty
thereto and the Obligor Hedging Exposure thereunder.


 


13.1.5                                       The Borrower shall, concurrently with the delivery of the quarterly
and annual financial statements referred to in subsections 13.1.1 and 13.1.2,
provide the Agent with an operating report on the mines owned and controlled by
it and its Subsidiaries (being the “Chief Operating Officer’s Quarterly Report
to the Board of Directors”) in reasonable detail as required by the Lenders.


 


13.1.6                                       The Borrower shall, concurrently with the delivery of the annual
financial statements referred to in subsection 13.1.2, provide the Agent with a
copy of its mineral reserve statements in reasonable detail.


 


13.1.7                                       The Borrower shall, as soon as practicable and in any event within
270 days after the end of each of its fiscal years, provide the Agent with
copies of its annual life of mine plans in reasonable detail.


 


13.1.8                                       The Borrower shall, promptly upon the filing, publishing, delivery
or reporting by or on behalf of the Borrower or any other Obligor of any
release, report, statement (including financial statements) or document to any
regulatory authority, provide a copy of each such release, report, statement or
document to the Agent except in circumstances where such filing is made on a
confidential basis, in which case it shall deliver a copy thereof when such
filing is no longer confidential.


 


13.1.9                                       The Borrower shall promptly provide the Agent with all other
information, reports and certificates reasonably requested by the Agent from
time to time concerning the business, financial condition and Property of the
Borrower and each other Obligor.


 


If there is any change in a fiscal year from
the accounting policies, practices and calculation methods used by the Borrower
in preparing its financial statements, or components thereof, the Borrower
shall provide the Lenders with all information that the Lenders require to
ensure that reports provided to the Lenders, after any such change, are
comparable to previous reports.  In
addition, all calculations made for the purposes of this Agreement shall,
unless and until modified in accordance with Section 1.4, continue to be 


 


69

















 


made based on the accounting policies,
practices and calculation methods that were used in preparing the financial
statements immediately before this Agreement came into effect if the changed
policies, practices and methods would affect the results of those calculations.


 


13.2                          Requirements
for Notice


 


The Borrower shall, promptly after it becomes
aware thereof, notify the Agent of:


 


13.2.1                                       any Default or Event of Default;


 


13.2.2                                       any new Material Subsidiary as contemplated by Section 8.2;


 


13.2.3                                       the occurrence of any action, suit, dispute, arbitration,
proceeding, labour or industrial dispute or other circumstance affecting it,
the result of which if determined adversely would reasonably be expected to
have a Material Adverse Effect, and shall from time to time provide the Agent
with all reasonable information requested by any of the Lenders concerning the
status thereof;


 


13.2.4                                       any violation, alleged violation, notice of infraction, order,
claim, suit or proceeding relating to Environmental Laws or the presence of
Hazardous Substances on or originating from the Property or operations of any
Obligor which would reasonably be expected to have a Material Adverse Effect;


 


13.2.5                                       any acquisition by an Obligor of (a) any Equity Interests of
any other Person (other than a Person that was, immediately prior thereto, a
Subsidiary of the Borrower) or (b) a business or undertaking or division
of any other Person (other than a Person that is the Borrower or a Subsidiary
of the Borrower), in each case as permitted by Section 14.3.1, promptly
upon any Obligor making a public announcement in respect thereof or, if no
public announcement is made, upon the occurrence of any such acquisition, and
such information relating to such acquisition as the Lenders may reasonably
request in relation thereto; and


 


13.2.6                                       the occurrence or existence of event or circumstance known to it
which would reasonably be expected to have a Material Adverse Effect.


 


14.                                 NEGATIVE
COVENANTS


 


For so long as any Loan
Obligations remain outstanding (other than those Loan Obligations that survive
termination of this Agreement), or the Borrower is entitled to borrow or obtain
credit hereunder (whether or not the conditions precedent to such borrowing or
obtaining of credit have been or may be satisfied), no Obligor shall, without
the prior written consent of the Majority Lenders:


 


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14.1                          Debt


Incur, assume or permit to exist any Debt
other than Permitted Debt. For greater certainty, no Subsidiary of the Borrower
shall guarantee, or otherwise enter into any arrangement to assure the payment
or performance of, any obligations of any Obligor to any Other Derivative Counterparty,
and the Borrower shall not guarantee, or otherwise enter into any arrangement
to assure the payment or performance of, any obligations of any other Obligor
to any Other Derivative Counterparty.


 


14.2                          Liens


 


Create, assume, enter into, or permit to
exist, any Lien on its Property other than Permitted Liens.


 


14.3                          Investments


 


Make any Investment other than:


 


14.3.1                                       Investments in the Core Business or in a business ancillary to or
complementary to the Core Business which are made at a time when no Default or
Event of Default has occurred which is continuing and no Default or Event of
Default would result from such Investment;


 


14.3.2                                       Investments in Cash Equivalents; or


 


14.3.3                                       Investments by an Obligor in another Obligor.


 


14.4                          Distributions


 


Make any Distribution to a Person other than
the Borrower or an Obligor if a Default or an Event of Default has occurred
which is continuing or if a Default or Event of Default would occur as a result
of the Distribution.


 


14.5                          Asset
Dispositions


 


Make any Asset Disposition of any Material
Assets except:


 


14.5.1                                       for sales of inventory;


 


14.5.2                                       as permitted under Section 14.10;


 


14.5.3                                       for sales in the Ordinary Course of obsolete or redundant equipment
or equipment of no further use in an Obligor’s business, unless a Default or an
Event of Default has occurred and is continuing or would result therefrom; or


 


14.5.4                                       where the aggregate Net Cash Proceeds of Asset Dispositions made on
Arm’s Length terms by the Obligors in any fiscal year of the Borrower does not
exceed US$50,000,000 (or the equivalent thereof in other


 


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relevant currencies), unless a
Default or an Event of Default has occurred and is continuing or would result
therefrom; or


 


14.5.5                                       from an Obligor to another Obligor other than, subject to Section 14.5.4,
any Asset Disposition of the Goldex Mine, the Lapa Mine, the LaRonde Mine or
the Meadowbank Mine, or any part thereof.


 


14.6                          Derivative
Instruments


 


14.6.1                                       Enter into any Derivative Instrument:


 


14.6.1.1                                                          with any Person other than a Lender, an Other Lender or an Affiliate
of a Lender or an Other Lender or an Other Derivative Counterparty;


 


14.6.1.2                                                          for any purpose other than hedging or mitigating of interest rate,
commodity or foreign exchange risks to which any Obligor is exposed in the
conduct of its business or the management of its liabilities, and not for the
purpose of speculation; or


 


14.6.1.3                                                          on a margin call basis or where the applicable Obligor has granted
the applicable counterparty security for any obligations under the Derivative
Instrument.


 


14.6.2                                       Make commitments to deliver gold or any other commodity that it
produces that in the aggregate exceed 75% of the Borrower’s scheduled
production (on a consolidated basis) of such commodity in any three month
period.


 


14.7                          Line
of Business


 


Carry on
business activities that differ materially or substantially from the Core
Business.


 


14.8                          Affiliate
Transactions


 


Enter into any
transaction of any kind with any Affiliate or Associate (except any Obligor),
or Person of which it is an Associate (except any Obligor), except on a
commercially reasonable basis as if it were dealing with such Person at Arm’s
Length.


 


14.9                          Subordinated
Debt


 


Pay any amount
in relation to any Subordinated Debt other than as expressly permitted under
any applicable Intercreditor Agreement.


 


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14.10                    Liquidation and Amalgamation


 


14.10.1                                 Enter into any merger, consolidation, amalgamation, statutory
arrangement (involving a business combination) or other reorganization, or
liquidate, wind-up or dissolve itself (or suffer any liquidation, wind-up or
dissolution), or any Capital Reorganization, other than:


 


14.10.1.1                                                    any Capital Reorganization of a Guarantor;


 


14.10.1.2                                                    any Capital Reorganization of the Borrower in which the holders of
the 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 Default or Event of Default would
result from such Capital Reorganization;


 


14.10.1.3                                                    any Subsidiary of an Obligor that is not an Obligor may be merged,
amalgamated or consolidated (including by way of liquidation or wind-up) with
or into an Obligor so long as no Default or Event of Default is then existing
and no Default or Event of Default would result from the consummation of such
merger, amalgamation or consolidation;


 


14.10.1.4                                                    an Obligor (the “Predecessor
Obligor”) may be merged, amalgamated or consolidated with or into
any other Person (which may be an Obligor) provided that:


 


(a)                                the successor entity formed as a result of such merger,
consolidation, amalgamation, statutory arrangement or other reorganization
(each, a “Successor Entity”) shall
(i) have the corporate (or analogous) power and authority to perform the
obligations of the Predecessor Obligor under the Loan Documents to which the
Predecessor Obligor is party, (ii) expressly confirm and, if necessary,
assume all the obligations of the Predecessor Obligor under this Agreement and
the other Loan Documents to which the Predecessor Obligor is a party pursuant
to such documentation as may be reasonably satisfactory to the Agent;


 


(b)                               the merger, amalgamation or consolidation does not materially impair
the ability of any Obligor to perform its obligations under any Loan Document
to which it is a party; and


 


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(c)                                no Default or Event of Default is then existing and no Default or
Event of Default would result from the consummation of such merger,
amalgamation or consolidation.


 


15.                                 EVENTS
OF DEFAULT AND ENFORCEMENT


 


15.1                          Events
of Default


 


The occurrence
of any of the following events shall constitute an Event of Default:


 


15.1.1                                       If the Borrower fails to pay any principal amount of any Advance when
due and payable; or


 


15.1.2                                       If the Borrower fails to pay any amount of interest, fees,
commissions or other Loan Obligations (other than amounts on account of
principal) when due, and such failure continues for 5 Business Days after such
amount becomes due; or


 


15.1.3                                       If any representation or warranty made by any Obligor or deemed to
have been made by any Obligor pursuant to this Agreement, or any representation
or warranty made by an officer of any Obligor in any Loan Document or in any
certificate, agreement, instrument or written statement delivered by any
Obligor or by an officer of any Obligor pursuant thereto was, at the time the
same was made, incorrect in any material respect, and if the circumstances
giving rise to such incorrect representation or warranty are capable of being
corrected (such that thereafter such representation or warranty would be
correct), such representation or warranty remains uncorrected for a period of
30 days after the Obligor becomes aware that such representation or warranty
was incorrect, whether on its own or by notice from the Agent; or


 


15.1.4                                       If any Obligor breaches or fails to perform any of its obligations
or undertakings hereunder or under any other Loan Document not otherwise
contemplated by this Section 15.1 and has not remedied the Default within
30 days following the date on which the Agent has given written notice to the
Borrower; or


 


15.1.5                                       If any of the financial covenants set out in Article 11 are not
complied with; or


 


15.1.6                                       If a default occurs under one or more agreements or instruments
relating to Debt of the Borrower or any Material Subsidiary other than the Loan
Obligations, if the effect of such default is to accelerate, or to permit the
acceleration of the due date of such Debt (whether or not acceleration actually
occurs), or if the Borrower or any Material Subsidiary fails to pay any amount
under any Derivative Instrument when due, whether at maturity, upon
acceleration, demand or 


 


74

















 


otherwise; in an aggregate
amount of US$50,000,000 or more (or the equivalent thereof in any other
currency); or


 


15.1.7                                       If the Borrower or any Material Subsidiary ceases or threatens to
cease to carry on its business (except as otherwise permitted by Section 14.10)
or admits its inability or fails to pay its Debt generally; or


 


15.1.8                                       If an Obligor denies its obligations under the Loan Documents or
claims any of the Loan Documents to be invalid or unenforceable, in whole or in
part; or any of the Loan Documents is invalidated or determined to be
unenforceable by any act, regulation or action of any Governmental Authority or
is determined to be invalid or unenforceable by a court or other judicial
entity of competent jurisdiction and such determination has not been stayed
pending appeal, unless such invalidity or unenforceability can be cured and
such invalidity or unenforceability is cured within 30 consecutive days of
notice thereof being given by the Agent to the Borrower of the occurrence of
such invalidity or unenforceability, unless such invalidity or unenforceability
occurred as a result of a contest initiated, acquiesced in or consented to by
an Obligor; or


 


15.1.9                                       If one or more judgments are rendered by a court of competent
jurisdiction against the Borrower or any Material Subsidiary in an aggregate
amount in excess of US$20,000,000 (or, if applicable, the equivalent thereof in
other currencies) and (a) the same are not released, bonded, satisfied,
discharged, vacated, stayed or accepted for payment by an insurer within 45
consecutive days after their entry, commencement or levy or (b) such
Person is not contesting such judgments or decrees in good faith and by
appropriate proceedings and adequate reserves in accordance with GAAP have not
been set aside on its books; or


 


15.1.10                                 If Property of the Borrower or any Material Subsidiary having an
aggregate value of more than US$20,000,000 (or, if applicable, the equivalent
thereof in other currencies) is seized or taken possession of (or subject to
other similar legal proceedings by a creditor for seizure or possession of
Property) (the “Seizure Proceeding”),
except to the extent that the applicable Person is diligently and in good faith
contesting any such Seizure Proceeding by appropriate proceedings and such
Seizure Proceeding remains undismissed or unstayed for a period of 60
consecutive days; or the Borrower or any Material Subsidiary takes any action
in furtherance of, or indicates its consent to, approval of, or acquiescence
in, any such Seizure Proceeding; or


 


15.1.11                                 If (a) the Borrower or any Material Subsidiary commits an act
of bankruptcy within the meaning of the Bankruptcy
and Insolvency Act (Canada) or any other applicable legislation in
any applicable 


 


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jurisdiction, makes an
assignment in favour of its creditors, consents to the filing of an application
for a bankruptcy order against it, files a notice of intention to make a
proposal or a proposal within the meaning of the Bankruptcy and Insolvency Act (Canada) or the Companies’ Creditors Arrangement Act
(Canada) or takes such action or any other action for the relief of debtors
under any other applicable legislation in any applicable jurisdiction, or makes
a motion to a tribunal to name, or consents to, approves or accepts the
appointment of a trustee-in-bankruptcy, receiver, liquidator, sequestrator or
other similar official with respect to itself or its Property, commences any
other proceeding with respect to itself or its Property under the provisions of
any Applicable Law contemplating reorganizations, proposals, rectifications,
compromises or liquidations in connection with insolvent Persons, in any
jurisdiction whatsoever, (b) a trustee-in-bankruptcy, receiver, liquidator
or sequestrator is named with respect to the Borrower, any Material Subsidiary
or any of their respective Property or the Borrower or any Material Subsidiary
is judged insolvent or bankrupt or (c) a proceeding seeking to name a
trustee-in-bankruptcy, receiver, liquidator, sequestrator or other similar
official, or to force the Borrower or any Material Subsidiary into bankruptcy,
is commenced against the Borrower or such Material Subsidiary (an “Insolvency Proceeding”) unless the
applicable Person is diligently and in good faith contesting such Insolvency
Proceeding by appropriate proceedings and such Insolvency Proceeding is not
settled or withdrawn within 60 consecutive days of its commencement; or


 


15.1.12                                 If there occurs any Change of Control of the Borrower.


 


15.2                          Remedies


 


Upon the occurrence
of any Event of Default which is continuing, the Agent may, at its option, and
shall, if required to do so by the Majority Lenders, declare immediately due
and payable, without presentation, demand, protest or other notice of any
nature, which the Borrower hereby expressly waives, notwithstanding any
provision to the contrary effect in this Agreement or in the other Loan
Documents:


 


15.2.1                                       the entire amount of the Loan Obligations, including (subject to Section 15.4)
the principal amount of the BA Advances then outstanding, in principal and
interest, notwithstanding the fact that one or more of the holders of the
Bankers’ Acceptances have not demanded payment in whole or in part or have
demanded only partial payment from the Lenders, and the amount of the Other
Supported Obligations.  The Borrower
shall not have the right to invoke against the Agent or the Lenders (or any
Affiliate of any Lender) any defence or right of action, indemnification or
compensation of any nature or kind whatsoever that the Borrower may at any time
have or have had with respect to any holder of one or more of the Derivative
Instruments or 


 


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Bankers’ Acceptances issued in
accordance with the provisions hereof; and


 


15.2.2                                       an amount equal to the amount of losses, costs and expenses assumed
by the Lenders and referred to in Sections 6.4 and  19.14; and


 


the Credit
Facility shall cease and as and from such time shall be cancelled, and the
Lenders may exercise all of their rights and recourses under the provisions of
this Agreement and of the other Loan Documents. 
For greater certainty, (i) from and after the occurrence and during
the continuance of any Default or Event of Default, the Lenders shall not be
obliged to make any further Advances under the Credit Facility and (ii) after
the Agent makes a declaration as contemplated by this Section 15.2 or the
Loan Obligations otherwise become immediately due and payable, no Event of
Default may be cured by the Obligors.


 


15.3                          Notice


 


Except where
otherwise expressly provided herein, no notice or demand of any nature is
required to be given to the Borrower by the Agent in order to put the Borrower
in default, the latter being in default by the simple lapse of time granted to
execute an obligation or by the simple occurrence of a Default.


 


15.4                          Escrowed
Funds for Bankers’ Acceptances


 


15.4.1                                       Immediately upon any Loan Obligations becoming due and payable under
Section 15.2, the Borrower shall, without necessity of further act or
evidence, be and become thereby unconditionally obligated to deposit forthwith
with the Agent for the benefit of each other Lender cash or Cash Equivalents
equal to the full face amount at maturity of all Bankers’ Acceptances then
outstanding for its account.


 


15.4.2                                       In the event of any purported prepayment of a Bankers’ Acceptance or
if the Borrower otherwise requests that it be permitted to cash collateralize a
Bankers’ Acceptance, it shall, without necessity of further act or evidence, be
and become thereby unconditionally obligated to deposit forthwith with the
Agent for the benefit of the Lenders cash or Cash Equivalents equal to the full
face amount at maturity of all applicable Bankers’ Acceptances.


 


15.4.3                                       The Borrower hereby unconditionally promises and agrees to deposit
with the Agent immediately upon demand cash or Cash Equivalents in the amount
so demanded.


 


15.4.4                                       The Borrower authorizes the Lenders, or any of them, to debit its
accounts with the amount required to pay such Bankers’ Acceptances, notwithstanding
that such Bankers’ Acceptances may be held by the Lenders, or any of them, in
their own right at maturity.  Amounts
paid to, or obtained by, the Agent pursuant to such a demand in respect of 


 


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Bankers’ Acceptances shall be
applied against, and shall reduce, pro rata
among the Lenders, to the extent of the amounts paid to, or obtained by, the
Agent in respect of Bankers’ Acceptances, the obligations of the Borrower to
pay amounts then or thereafter payable under Bankers’ Acceptances, at the times
amounts become payable thereunder.  The
Borrower shall be entitled to receive interest on cash or Cash Equivalents held
by the Agent under this Section if no Event of Default has occurred and is
continuing, but neither the Agent nor any Lender shall be responsible for the
rate of return, if any, earned on such amounts.


 


15.4.5                                       If the Agent holds cash or Cash Equivalents in the amount of the
full face amount of the outstanding Bankers’ Acceptances at the Maturity Date,
such cash and Cash Equivalents shall be the property of the Lenders to be
applied as set out in Section 15.4.4, and except for any obligations
herein which by their terms survive termination of this Agreement and which may
relate to such outstanding Bankers’ Acceptances, the Borrower shall have no
further obligations under or in connection with such Bankers’ Acceptance.


 


15.5                          Costs


 


If an Event of
Default occurs, and within the limits contemplated by Section 12.14, the
Agent may impute to the account of the Lenders and pay to other Persons
reasonable sums for services rendered with respect to obtaining payment
hereunder and may deduct the amount of such costs and payments from the
proceeds which it receives therefrom. 
The balance of such proceeds may be held by the Agent and, when the
Agent decides it is opportune, may be applied to the account of the part of the
Loan Obligations of the Borrower to the Lenders which the Agent deems
preferable, without prejudice to the rights of the Lenders against the Borrower
for any loss of profit.


 


15.6                          Relations
with the Obligors


 


The Agent may
grant extensions, renounce security (if any security has, at the time been
granted to the Agent), accept compromises, grant acquittances and releases and
otherwise negotiate with the Obligors, as it deems advisable without in any way
diminishing the liability of the Obligors nor prejudicing the rights of the
Lenders hereunder.


 


15.7                          Application
of Proceeds


 


Notwithstanding
any other provision of this Agreement or any other Loan Document, the Agent
shall apply the proceeds of realization arising from the enforcement of this
Agreement or any other Loan Document and of any credit or compensating balance
in reduction of the Loan Obligations and the Other Supported Obligations on a pro rata basis.


 


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16.                                 THE
AGENT AND THE LENDERS


 


16.1                          Authorization
of Agent


 


Each Lender
hereby irrevocably appoints and authorizes the Agent to act for all purposes as
its agent hereunder and under the other Loan Documents with such powers as are
expressly delegated to the Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto.  The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement.  As to any matters not expressly provided for
by this Agreement, the Agent shall act hereunder or in connection herewith in
accordance with the instructions of the Lenders in accordance with the
provisions of this Article, but in the absence of any such instructions, the
Agent may (but shall not be obliged to) act as it shall deem fit in the best
interests of the Lenders, and any such instructions and any action taken by the
Agent in accordance herewith shall be binding upon each Lender.  The Agent and its Related Parties shall not,
by reason of this Agreement, be deemed to be a trustee or fiduciary for the
benefit of any Lender, any Obligor or any other Person, irrespective of whether
a Default or Event of Default may have occurred.  Neither the Agent nor any of its Related
Parties shall be responsible to the Lenders for (a) any recitals,
statements, representations or warranties contained in this Agreement or any
other Loan Document or in any certificate or other document referred to, or
provided for in, or received by any of them under, this Agreement, (b) the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any collateral provided for
thereby, (c) the satisfaction of any condition specified in this
Agreement, other than to confirm receipt of items expressly required to be
delivered to the Agent or (d) any failure by the Borrower or any other
Obligor to perform its obligations hereunder or under any other Loan
Documents.  The Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Agent from among the Lenders (including the Person serving as Agent) and their
respective Affiliates.  The Lenders agree
that the Agent may employ agents and attorneys and shall not be responsible for
the negligence or misconduct of any such agents or attorneys selected by it
with reasonable care.  Neither the Agent
nor any of its Related Parties shall be responsible to the Lenders for any
action taken or omitted to be taken by it or its Related Parties under or in
connection herewith, except for its or their own gross negligence or wilful
misconduct. Notwithstanding the foregoing, the Agent may, without the consent
of the Lenders, but for greater certainty only, with the consent of the other
parties hereto, make amendments to the Loan Documents that are for the sole
purpose of curing any immaterial or administrative ambiguity, defect or
inconsistency, but the Agent shall promptly notify the Lenders of any such
action.


 


16.2                          Agent’s
Responsibility


 


16.2.1                                       The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet posting or other distribution) believed by it to
be genuine and to have been signed, sent or otherwise authenticated by the
proper Person.  The Agent may also rely
upon any statement made to it orally or by telephone and believed by it to have



 


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been made by the proper Person,
and shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to the making of an Advance that by its terms must be fulfilled to
the satisfaction of a Lender, the Agent may presume that such condition is
satisfactory to such Lender unless the Agent shall have received notice to the
contrary from such Lender prior to the making of such Advance.  The Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.  The Agent may deem and treat each Lender as
the holder of the Commitment made by such Lender for all purposes hereof unless
and until an Assignment has been completed in accordance with Section 18.2.


 


16.2.2                                       The Agent shall not be deemed to have knowledge of the occurrence of
a Default or Event of Default unless the Agent has received notice from a
Lender or the Borrower describing such a Default or Event of Default and
stating that such notice is a “Notice of
Default”.  In the event that
the Agent receives such a notice of the occurrence of a Default or Event of
Default or otherwise becomes aware that a Default or Event of Default has
occurred, the Agent shall promptly give notice thereof to the Lenders.  The Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the
Lenders in accordance with the provisions of this Article provided that, unless
and until the Agent shall have received such directions, the Agent may (but
shall not be obliged to) take such action, or refrain from taking such action,
with respect to such a Default or Event of Default as it shall deem advisable
in the best interest of the Lenders.  The
Agent shall not be required to take any action that, in its opinion or in the
opinion of its counsel, may expose the Agent to liability or that is contrary
to any Loan Document or Applicable Law.


 


16.2.3                                       Except (in the case of the Agent) for notices, reports and other
documents and information expressly required to be furnished to the Lenders by
the Agent hereunder, the Agent shall have no duty or responsibility to provide
any Lender with any credit or other information concerning the affairs or
financial condition of the Obligors which may come to the attention of the
Agent, except where provided to the Agent for the Lenders as set out
herein.  Nothing in this Agreement shall
oblige the Agent to disclose any information relating to the Obligors if such
disclosure would or might, in the opinion of the Agent, constitute a breach of
any Applicable Law or duty of secrecy or confidence.


 


16.2.4                                       The Agent shall have no responsibility (a) to any Obligor on
account of the failure of any Lender to perform its obligations hereunder or 


 


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under any other Loan Document
or (b) to any Lender on account of the failure of any Obligor to perform
its obligations hereunder or under any other Loan Document.


 


16.2.5                                       Each Lender severally represents and warrants to the Agent that it
has made its own independent investigation of the financial condition and
affairs of the Obligors in connection with the making and continuation of its
Commitment and has not relied on any information provided to such Lender by the
Agent in connection herewith, and each Lender represents and warrants to the
Agent that it shall continue to make its own independent appraisal of the
creditworthiness of the Obligors while any Loan Obligations are outstanding or
the Lenders have any obligations hereunder.


 


16.3                          Rights
of Agent as Lender


 


With respect
to its Commitment, the Agent in its capacity as a Lender shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Agent. 
The Agent may (without having to account therefor to any Lender) accept
deposits from, lend money to and generally engage in any kind of banking or
other business with the Obligors as if it were not acting as the Agent and may
accept fees and other consideration from the Obligors for customary services in
connection with this Agreement and the Loan Obligations and otherwise without
having to account for the same to the Lenders.


 


Any reference
in this Agreement to the Agent means, where the Agent is also a Lender, the
agency department of such Lender specifically responsible for acting as Agent
under and in connection with this Agreement. 
In acting as Agent, the agency department will be treated as a separate
entity from any other department or division of the Lender in question.  Without limiting the foregoing, the Agent
shall not be deemed to have notice of a document or information received by any
other department or division of that Lender, nor will the Lender concerned be
deemed to have notice of a document or information received by the Agent.


 


16.4                          Indemnity
by Lenders


 


Each Lender
shall indemnify the Agent and hold it harmless, to the extent not otherwise
reimbursed by the Borrower or another Obligor, rateably in accordance with its
Applicable Percentage and not jointly or jointly and severally, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
(including the fees, charges and disbursements of counsel) which may be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of this Agreement or any other Loan Documents or the transactions
contemplated hereby or thereby (excluding, unless a Default or Event of Default
is apprehended or has occurred and is continuing, normal administrative costs
and expenses incidental to the performance of its agency duties hereunder) or
the enforcement of any of the terms hereof or of any other Loan


 


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Documents,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the Agent’s gross negligence or wilful misconduct.


 


16.5                           Notice
by Agent to Lenders


 


As
soon as practicable after its receipt thereof, the Agent will forward to each
Lender a copy of each report, notice or other document required by this
Agreement to be delivered to the Agent for such Lender.


 


16.6                           Protection
of Agent - Advances and Payments


 


16.6.1                                       Unless the Agent shall have been notified in writing by any Lender
prior to a Drawdown Date that such Lender does not intend to make available to
the Agent such Lender’s Applicable Percentage of such Advance, the Agent may
assume that such Lender has made such Lender’s Applicable Percentage of such
Advance available to the Agent on the Drawdown Date and the Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount.  If such corresponding amount is
not in fact made available to the Agent by such Lender, the Agent shall be
entitled to recover such amount (together with interest thereon at the rate
determined by the Agent as being its applicable rate for interbank compensation
based on prevailing banking industry standards) on demand from such Lender or,
if such Lender fails to reimburse the Agent for such amount on demand, from the
Borrower.


 


16.6.2                                       Unless the Agent shall have been notified in writing by the Borrower
prior to the date on which any payment is due hereunder that the Borrower does
not intend to make such payment, the Agent may assume that the Borrower will
make such payment when due and the Agent may, in reliance upon such assumption,
make available to each Lender on such payment date an amount equal to such
Lender’s pro rata share of such
assumed payment.  If it is established
that the Borrower has not in fact made such payment to the Agent, each Lender
shall forthwith on demand repay to the Agent the amount made available to such
Lender (together with interest thereon at the rate determined by the Agent as being
its applicable rate for interbank compensation based on prevailing banking
industry standards).


 


16.7                           Notice
by Lenders to Agent


 


Each
Lender shall endeavour to use its best efforts to notify the Agent of the
occurrence of any Default or Event of Default forthwith upon becoming aware of
such event, but no Lender shall be liable if it fails to give such notice to
the Agent.


 


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16.8                           Sharing
Among the Lenders


 


Each
Lender, and by its acceptance of the benefit of each Guarantee, each Other
Supported Party, agrees that as amongst themselves, except as otherwise
provided for by the provisions of this Agreement, all amounts received by the
Agent, in its capacity as administrative agent for the Lenders pursuant to this
Agreement or any other Loan Document (other than the Fee Letter) and whether
received by voluntary payment, by the exercise of the right of set-off or
compensation or by counterclaim, cross-claim, separate action or as proceeds of
realization of any security:


 


16.8.1                                       prior to any Loan Obligations becoming due and payable under Section 15.2,
shall be shared by each Lender pro rata,
determined in accordance with the Applicable Percentages of each Lender; and


 


16.8.2                                       following any Loan Obligations becoming due and payable under Section 15.2,
shall be shared by each Supported Party, pro
rata, based on its percentage of the aggregate Supported
Obligations;


 


and
each Lender undertakes to do all such things as may be reasonably required to
give full effect to this Section 16.8. 
If any amount so shared is later recovered from the Lender who
originally received it, each other Lender shall restore its proportionate share
of such amount to such Lender, without interest.


 


As
a necessary consequence of the foregoing, each Lender shall share, in a
percentage equal to its Applicable Percentage, any losses incurred as a result
of any Event of Default, and shall pay to the Agent, within 2 Business Days
following a request by the Agent, any amount required to ensure that such
Lender bears its Applicable Percentage of such losses, if any, including any
amounts required to be paid to any Lender in respect of any Bankers’
Acceptances.  Such obligation to share
losses shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (a) any set-off,
compensation, counterclaim, recoupment, defence or other right which such
Lender may have against the Agent, any Obligor or any other Person for any
reason whatsoever, (b) the occurrence or continuance of any Default or
Event of Default, (c) any adverse change in the condition (financial or
otherwise) of the Borrower or any other Person, (d) any breach of this
Agreement by the Borrower or any other Person, or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.  Where necessary to give
effect to this Section 16.8, a Lender shall purchase a participation in
the Advances of other Lenders.  If any
Lender does not make available the amount required hereunder, the Agent shall
be entitled to recover such amount on demand from such Lender, together with
interest thereon at the rate determined by the Agent as being its applicable
rate for interbank compensation based on prevailing banking industry standards
from the date of non payment until such amount is paid in full.


 


The
provisions of this Section shall not be construed to apply to (a) any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loan Obligations to any Assignee or Participant,
other than to any Obligor or any Affiliate of an Obligor (as to which the
provisions of this paragraph shall apply), (b) any payment made while no
Event of Default has occurred and is continuing in respect of 


 


83

















 


obligations
of the Borrower to such Lender that do not arise under or in connection with
the Loan Documents, (c) any payment made in respect of an obligation that
is secured by a Permitted Lien or that is otherwise entitled to priority over
any Obligor’s obligations under or in connection with the Loan Documents, (d) any
reduction arising from an amount owing to an Obligor on account of Derivative
Obligations upon the termination of any Derivative Instrument except for a net
amount available after the termination of all Derivative Obligations between
the Obligors and such Lender (or an Affiliate of a Lender) and the set-off of
resulting amounts owing by the Obligors and to the Obligors, or (e) any
payment to which such Lender is entitled as a result of any form of credit
insurance obtained by such Lender.


 


16.9                           Procedure
With Respect to Advances


 


Subject
to the applicable provisions of this Agreement, upon receipt of a Notice of
Borrowing from the Borrower, the Agent shall, without delay, advise each Lender
of the receipt of such notice, of the Drawdown Date, of its Applicable
Percentage of the amount of such Advance and of the relevant details of the
Agent’s account(s).  Subject to the applicable
provisions of this Agreement, each Lender shall disburse its Applicable
Percentage of each Advance, and shall make it available to the Agent (no later
than 10:00 a.m.) on the Drawdown Date, by depositing its Applicable
Percentage of the Advance in the Agent’s account in the applicable currency, as
the case may be.  The Agent will make
such amounts available to the Borrower on the Drawdown Date, at the Branch,
and, in the absence of other arrangements made in writing between the Agent and
the Borrower, by transferring or causing to be transferred an equivalent amount
in the case of a Prime Rate Advance, US Base Rate Advance, Libor Advance and
the Available Proceeds in the case of Bankers’ Acceptances, in accordance with
the instructions of the Borrower which appear in the Notice of Borrowing with
respect to each Advance; however, the obligation of the Agent with respect
hereto is limited to taking the steps judged commercially reasonable in order
to follow such instructions, and once undertaken, such steps shall constitute prima facie evidence that the amounts have
been disbursed in accordance with the applicable provisions.  Subject to the foregoing sentence, the Agent
shall not be liable for damages, claims or costs imputed to the Borrower and resulting
from the fact that the amount of an Advance did not arrive at its agreed-upon
destination.


 


16.10                     Accounts
Kept by Each Lender


 


Each
Lender shall keep in its books, in respect of its Commitment, accounts for
Libor Advances, Prime Rate Advances, US Base Rate Advances, Bankers’
Acceptances and other amounts payable by the Borrower under this
Agreement.  Each Lender shall make
appropriate entries showing, as debits, the amount of the Debt of the Borrower
to it in respect of the Libor Advances, Prime Rate Advances, US Base Rate
Advances and BA Advances, as the case may be, the amount of all accrued
interest and any other amount due to such Lender pursuant hereto and, as
credits, each payment or repayment of principal and interest made in respect of
such Debt as well as any other amount paid to such Lender pursuant hereto.  These accounts shall constitute (in the
absence of contradictory entries in the accounts of the Agent referred to in Section 3.4)
prima facie evidence of their
content against the Borrower.


 


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16.11                     Binding
Determinations


 


The
Agent shall in good faith to make any determination that is required in order
to apply this Agreement and, once made, such determination shall be final and
binding upon all Lenders, except in the case of manifest error.


 


16.12                     Amendment
of Article 16


 


The
provisions of this Article 16 relating to the rights and obligations of
the Lenders and the Agent inter se,
other than under Sections 16.13 or 16.14, may be amended or added to, from time
to time, by the execution by the Agent and the Lenders of an instrument in
writing and such instrument in writing shall validly and effectively amend or
add to any or all of the provisions of this Article affecting the Lenders
without requiring the execution of such instrument in writing by the Borrower.


 


16.13                     Decisions,
Amendments and Waivers of the Lenders


 


Subject
to the provisions of Section 16.14, all decisions taken by the Lenders
shall be taken as follows: (a) if there are two Lenders, by unanimous
consent, or (b) if there are three or more Lenders, by the Majority
Lenders.  The Agent shall confirm such
consent to each Lender and to the Borrower. Notwithstanding the foregoing, no
amendment, modification or waiver of any provision of any Loan Document dealing
with the rights and duties of the Agent shall be taken without the written
consent of the Agent.


 


16.14                     Authorized
Waivers, Variations and Omissions


 


If
so authorized in writing by the Lenders, the Agent, on behalf of the Lenders,
may grant waivers, consents, vary the terms of this Agreement and the other
Loan Documents and do or omit to do all acts and things in connection herewith
or therewith.  Notwithstanding the
foregoing, except with the prior written agreement of each Lender, nothing in Section 16.13
or this Section 16.14 shall authorize (a) any extension of the date
for, or alteration in the rate, amount, currency or mode of calculation or
computation of any payment of principal or interest, fees or other amount, (b) any
increase in the Commitment of a Lender, (c) any extension of any Maturity
Date, (d) any change in the terms of this Article 16, (e) any
change in the manner of making decisions among the Lenders, including the
definition of Majority Lenders, (f) the release of any Obligor except in
the context of the sale of such Obligor if and to the extent permitted by Section 14.10,
(g) the release, in whole or in part, of any of the Loan Documents or of
any of the Guarantees, (h) any change in or any waiver of the conditions
precedent provided for in Section 9.1 or (i) any amendment to this Section 16.14.


 


16.15                     Provisions
for the Benefit of Lenders Only


 


The
provisions of this Article 16 relating to the rights and obligations of
the Lenders and Agent inter se
shall be operative as between the Lenders and Agent only, and the Obligors
shall not have any rights under or be entitled to rely for any purposes upon
such provisions.


 


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16.16                     Assignment
by Agent to an Affiliate


 


The
Agent may, at any time and from time to time, assign its rights and transfer
its obligations hereunder, in whole or in part, to an Affiliate acceptable to
the Borrower, acting reasonably, upon notice to the Lenders, provided that such
assignment does not result in an increase in the amounts payable by any Obligor
hereunder.


 


16.17                     Collective
Action of the Lenders


 


Each
of the Lenders hereby acknowledges that to the extent permitted by Applicable
Law, any Guarantees and the remedies provided under the Loan Documents to the
Lenders are for the benefit of the Lenders (and Other Supported Parties)
collectively and acting together and not severally and further acknowledges
that its rights hereunder and under any Guarantees are to be exercised not
severally, but by the Agent upon the decision of the requisite majority of
Lenders as contemplated in the relevant Loan Document.  Accordingly, notwithstanding any provision of
any Loan Document, each of the Lenders covenants and agrees that it shall not
be entitled to take any action under any of the Loan Documents including any
declaration of Event of Default hereunder, such that any such action may only
be taken through the Agent in accordance with the provisions hereof or upon the
prior written agreement of the Majority Lenders.  Each of the Lenders agrees to cooperate with
the Agent as reasonably requested from time to time.


 


16.18                     Resignation
of Agent


 


16.18.1                                 The Agent may at any time give notice of its resignation to the
Lenders and the Borrower.  Upon receipt
of any such notice of resignation, the Majority Lenders shall have the right,
in consultation with the Borrower, to appoint a successor, which shall be a
Lender having an office in Toronto, Ontario, or an Affiliate of any such Lender
with an office in Toronto.  The Agent may
also be removed at any time by the Majority Lenders upon 30 days’ notice to the
Agent and the Borrower as long as the Majority Lenders, in consultation with
the Borrower, appoint and obtain the acceptance of a successor within such 30
days, which shall be a Lender having an office in Toronto, or an Affiliate of
any such Lender with an office in Toronto.


 


16.18.2                                 If no such successor shall have been so appointed by the Majority
Lenders and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of its resignation, then the retiring Agent may on
behalf of the Lenders, appoint a successor Agent meeting the qualifications
specified in subsection 16.18.1, provided that if the Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (a) the retiring Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents
(except 


 


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that
in the case of any collateral security held or cash or Cash Equivalents held in
escrow by the Agent on behalf of the Lenders under any of the Loan Documents,
the retiring Agent shall continue to hold such collateral security or cash or
Cash Equivalents until such time as a successor Agent is appointed) and (b) all
payments, communications and determinations provided to be made by, to or
through the Agent shall instead be made by or to each Lender directly, until
such time as the Majority Lenders appoint a successor Agent as provided for
above in Section 16.18.1.


 


16.18.3                                 Upon a successor’s appointment as Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the former Agent, and the former Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents
(if not already discharged therefrom as provided in the preceding
paragraph).  The fees payable by the
Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the termination of the service of the former Agent, the provisions of
this Section 16.18 and of Section 19.14 shall continue in effect for
the benefit of such former Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the former Agent was acting as Agent.


 


17.                                 CURRENCY
CONVERSION, ETC.


 


17.1                           Rules of
Conversion


 


If
for the purpose of obtaining judgment in any court or for any other purpose
hereunder, it is necessary to convert an amount due, advanced or to be advanced
hereunder from the currency in which it is due (the “First Currency”) into another currency (the “Second Currency”) the rate of exchange used
shall be that at which, in accordance with normal banking procedures, the Agent
could purchase, in the Canadian money market or the Canadian exchange market,
as the case may be, the First Currency with the Second Currency on the date on
which the judgment is rendered, the sum is payable or advanced or to be
advanced, as the case may be.  The
Borrower agrees that its obligations in respect of any First Currency due from
it to the Agent or the Lenders in accordance with the provisions hereof shall,
notwithstanding any judgment rendered or payment made in the Second Currency,
be discharged by a payment made to the Agent on account thereof in the Second
Currency only to the extent that, on the Business Day following receipt of such
payment in the Second Currency, the Agent may, in accordance with normal
banking procedures, purchase on the Canadian money market or the Canadian
foreign exchange market, as the case may be, the First Currency with the amount
of the Second Currency so paid or which a judgment rendered payable (the rate
applicable to such purchase being in this Section called the (“FX Rate”)); and if the amount of the First Currency
which may be so purchased is less than the amount originally due in the First
Currency, the Borrower agrees as a separate and independent obligation and 


 


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notwithstanding
any such payment or judgment to indemnify the Lenders against such deficiency.
The agreements in this Section shall survive the termination of the
Commitments and the repayment of all other amounts outstanding hereunder and
under the other Loan Documents.


 


17.2                           Determination
of Equivalent Amount in another Currencies


 


If,
in their discretion, the Lenders or the Agent choose or, pursuant to the terms
of this Agreement, are obliged to choose, calculate or determine the equivalent
in one currency of the amount in another currency the Agent, in accordance with
the conversion rules stipulated in Section 17.1:


 


17.2.1                                       on any Drawdown Date; or


 


17.2.2                                       at any other time when such a calculation or determination under
this Agreement (including Section 2.8) or any other Loan Document is contemplated;


 


shall,
using the FX Rate at such time on such date, determine the equivalent amount in
such currency, as the case may be, of any security or amount expressed in the
other currency pursuant to the terms hereof. 
Immediately following such determination, the Agent shall inform the
Borrower of the conclusion which the Lenders have reached.


 


18.                                 ASSIGNMENT


 


18.1                           Assignment
by the Borrower


 


The
rights of the Borrower and each other Obligor under the provisions hereof may
not be transferred or assigned (except by operation of law as may be permitted
pursuant to Section 14.10), and no Obligor may transfer or assign any of
its obligations, any such assignment being null and void and of no effect
against the Agent and the Lenders and rendering any balance outstanding of the
Loan Obligations immediately due and payable at the option of the Lenders and
further releasing the Lenders from any obligation to make any further Advances
under the provisions hereof.


 


18.2                           Assignments
and Transfers by the Lenders


 


18.2.1                                       No Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (a) to an Eligible Assignee in accordance
with the provisions of subsection 18.2.2, or (b) by way of a sale of a
participation in accordance with the provisions of Section 18.5 (and any
other attempted assignment or transfer by any party hereto shall be null and
void).


 


18.2.2                                       Each Lender may assign or transfer to an Eligible Assignee in
accordance with this Article 18 up to 100% of its rights, benefits and
obligations hereunder; provided that:


 


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18.2.2.1                                                          except (a) if an Event of Default has occurred that is
continuing, (b) in the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitment and the Loan Obligations at the
time owing to it or (c) in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, the
aggregate amount of the Commitment being assigned (which for this purpose includes
Advances outstanding thereunder) or, if the applicable Commitment is not then
in effect, the principal outstanding balance of the Advances of the applicable
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption Agreement with respect to such assignment is
delivered to the Agent or, if “Trade Date”
is specified in the Assignment and Assumption Agreement, as of the Trade Date)
shall not be less than US$10,000,000, unless each of the Agent and, so long as
no Default or Event of Default has occurred and is continuing, the Borrower,
otherwise consent to a lower amount (each such consent not to be unreasonably
withheld or delayed);


 


18.2.2.2                                                          any assignment must be approved by the Agent (such approval not to
be unreasonably withheld or delayed) unless the proposed Assignee is itself
already a Lender;


 


18.2.2.3                                                          any assignment must be approved by the Borrower (such approval not
to be unreasonably withheld or delayed, provided that it shall be reasonable
for the Borrower to withhold its consent if such assignment would give rise to
a direct claim against an Obligor under Article 6 or Section 19.14)
unless (i) the proposed Assignee is itself already a Lender, or (ii) a
Default has occurred that is continuing, or (iii) an Event of Default has
occurred that is continuing; and


 


18.2.2.4                                                          the parties to each Assignment shall execute and deliver to the
Agent an Assignment and Assumption Agreement, together with a processing and
recordation fee in an amount of US$5,000, and the Eligible Assignee, if it is
not a Lender, shall deliver to the Agent an administrative questionnaire.


 


Subject to
acceptance and recording thereof by the Agent pursuant to Section 18.3,
from and after the effective date specified in each Assignment and 


 


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Assumption
Agreement, the Eligible Assignee thereunder shall be a party to this Agreement
and, to the extent of the interest assigned by such Assignment and Assumption
Agreement, have the rights and obligations of a Lender under this Agreement and
the other Loan Documents, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption Agreement, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption Agreement covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) with respect to matters and circumstances from and after the effective
date of such Assignment but shall continue to be entitled to the benefits of Article 6
and Section 19.14 with respect to facts and circumstances occurring prior
to the effective date of such Assignment. 
Any Assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with Section 18.5.  Any payment by an Assignee to an assigning
Lender in connection with an Assignment or transfer shall not be or be deemed
to be a repayment by the Borrower or a new Advance to the Borrower.


 


18.3                           Register


 


The
Agent shall maintain at one of its offices in Toronto, Ontario, a copy of each
Assignment and Assumption Agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Advances owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”).  The entries in the Register shall be prima facie evidence of each of the
foregoing items, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding any notice
to the contrary.  The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


18.4                           Electronic
Execution of Assignments


 


The
words “execution,” “signed,” “signature,” and words of like import in any
Assignment and Assumption Agreement shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any Applicable Law, including Parts 2 and
3 of the Personal Information Protection and
Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario) and other similar
federal or provincial laws based on the Uniform Electronic Commerce Act of the
Uniform Law Conference of Canada or its Uniform Electronic Evidence Act, as the
case may be.


 


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18.5                           Participations


 


Any
Lender may at any time, without the consent of, the Borrower or the Agent, sell
participations to any Person (other than a natural person, an Obligor or any
Affiliate of an Obligor) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Advances
owing to it); provided that (a) such Lender’s obligations under this
Agreement shall remain unchanged, (b) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, and (c) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement; provided further that, on
or after any sale by a Lender of such a participation, such Lender shall
forthwith provide notice thereof to the Agent and the Borrower.  Any payment by a Participant to a Lender in
connection with a sale of a participation shall not be or be deemed to be a
repayment by the Borrower or a new Advance to the Borrower.  Subject to Section 18.6, the Borrower
agrees that each Participant shall be entitled to the benefits of Article 6
to the same extent as if it were a Lender and had acquired its interest by
Assignment pursuant to subsection 18.2.2.


 


18.6                           Limitations
Upon Participant Rights


 


A
Participant shall not be entitled to receive any greater payment under Sections
6.2 and 6.3 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant.  A Participant that would be a Foreign Lender
if it were a Lender to the Borrower shall not be entitled to the benefits of Section 6.3
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
subsection 6.3.5 as though it were a Lender to the Borrower.


 


18.7                           Promissory
Notes


 


Upon
the request of any Lender, the Borrower will execute and deliver one or more
promissory notes in form and substance acceptable to such Lender, acting
reasonably, evidencing the Commitment under this Agreement and any Advances
hereunder.


 


19.                                 MISCELLANEOUS


 


19.1                           Notices


 


19.1.1                                       General. 
Except where otherwise expressly specified herein, all notices,
requests, demands or other communications between the parties hereto shall be
in writing and shall be made by prepaid registered mail, prepaid overnight
courier, fax or physical delivery to the address or fax number of such party
and to the attention indicated on the signature page of this Agreement of
such party or to any other address, attention or fax number which such party
hereto may subsequently communicate to each in writing in such manner. Any
notice, request, demand or other communication shall be deemed to have been
received by the party to whom it is addressed (a) upon


 


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receipt
by the addressee (or refusal thereof), in the case of prepaid overnight courier
or physical delivery, (b) three days after delivery in the mail, if sent
by prepaid registered mail, and (c) on the day of transmission, if faxed
before 5:00 p.m. (local time) on a Business Day, and on the next Business
Day following transmission, if faxed after 5:00 p.m. (local time) on a
Business Day; provided that, any notice to the Borrower shall be deemed to be
notice to all Obligors.  If normal postal
or fax service is interrupted by strike, work slow-down or other cause, the
party sending the notice shall use such services which have not been
interrupted or shall deliver such notice by messenger in order to ensure its
prompt receipt by the other party. 
Notwithstanding any other provision in the Loan Documents, any notice,
request, demand or other communication which is required to be given or
delivered to any Guarantor hereunder or under any other Loan Document shall be
deemed to have been given to and received by such Obligor if given in the
manner required by this Section to the Borrower.


 


19.1.2                                       Electronic Communications.  Notices and other communications by the Agent
to the Lenders hereunder may be delivered or furnished by electronic
communication (including email and Internet or intranet websites) pursuant to
procedures approved by the Agent, provided that the foregoing shall not apply
to notices by the Agent to any Lender of Advances to be made if such Lender has
notified the Agent that it is incapable of receiving notices by electronic
communication.  The Agent or the Borrower
may, in their discretion, agree to accept notices and other communications to
each other hereunder by electronic communications pursuant to procedures
approved by them, provided that approval of such procedures may be limited to
particular notices or communications.


 


Unless the Agent otherwise prescribes, (a) notices
and other communications sent to an email address shall be deemed received upon
the sender’s receipt of an acknowledgement from the intended recipient (such as
by the “return receipt requested” function, as available, return email or other
written acknowledgement), provided that if such notice or other communication
is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next Business Day for the recipient, and (b) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (a) of notification that such notice or communication
is available and identifying the website address therefor.


 


19.2                           Amendment
and Waiver


 


The rights, remedies and recourses of the
Agent and the Lenders under this Agreement and the other Loan Documents are
cumulative and do not exclude any other rights, remedies and recourses which
the Agent or the Lenders might have, and no omission or 


 


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delay on the part of the Agent or the Lenders
in the exercise of any right shall have the effect of operating as a waiver of
any such right, remedy or recourse, and the partial or sole exercise of a
right, remedy, recourse or power will not prevent the Agent or the Lenders from
exercising thereafter any other right, remedy, recourse or power.  Without limiting the generality of the
foregoing sentence, in the event that the Agent does not immediately make a
declaration accelerating the Loan Obligations under Section 15.2 following
the occurrence of an Event of Default, such absence of a declaration shall not
be construed as a waiver of its right to make such a declaration and shall in
no way hinder, estop or prevent the Agent from making such a declaration at a
later time.  The provisions of this
Agreement may only be amended or waived by an instrument in writing in each
case signed by the Agent with the approval of, as applicable, the Lenders or
Majority Lenders in accordance with Section 16.14, or by the Lenders or
Majority Lenders, as applicable, on the same terms, and further, unless
otherwise expressly provided herein, may only be amended by written instrument
of the Obligors.


 


19.3                           Independent
Engineer and Other Consultants


 


Subject to Sections 12.10 and 12.14, the
Agent and/or the Majority Lenders shall have the right at any time and from
time to time to appoint an independent engineer to act on behalf of the Agent
and the Lenders for such purposes as the Agent or the Majority Lenders may
determine to carry out such duties as may be set forth in this Agreement or as
may be required by the Agent or the Majority Lenders from time to time. Subject
to Sections 12.10 and 12.14, the Agent and/or the Lenders may also, from time
to time, consult and retain any other independent consultants determined by
them to be appropriate for the same purpose.


 


19.4                           Entire
Agreement


 


The entire agreement between the parties is
expressed herein, and no variation or modification of its terms shall be valid
unless expressed in writing and signed by the parties.  All previous agreements, promises, proposals,
representations, understandings and negotiations between the parties hereto
which relate in any way to the subject matter of this Agreement are hereby
deemed to be null and void.


 


19.5                           Indemnification
and Set-Off


 


In addition to the other rights now or
hereafter conferred by Applicable Law and those described in subsection 5.6.2
and Section 7.10, and without limiting such rights, following the occurrence
of an Event of Default which is continuing, each Lender and the Agent is hereby
authorized by each Obligor, at any time and from time to time, subject to the
obligation to give notice to the Borrower subsequently and within a reasonable
time, to set off, indemnify, compensate, use and allocate any deposit (general
or special, term or demand, including any debt evidenced by certificates of
deposit, whether or not matured) and any other debt at any time held or due by
a Lender to an Obligor or to its credit or its account, with respect to and on
account of the Loan Obligations and the Other Supported Obligations, including,
without limitation, the accounts of any nature or kind which flow from or
relate to this Agreement or the other Loan Documents, and 


 


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whether or not the Agent has made demand
under the terms hereof or has declared the amounts referred to in Section 15.2
as payable in accordance with the provisions of that Section and even if
such obligation and Debt or either of them is a future or unmatured Debt.


 


19.6                           Benefit
of Agreement


 


This Agreement shall be binding upon and
enure to the benefit of each party hereto and its successors and permitted
assigns.


 


19.7                           Counterparts


 


This Agreement may be signed in any number of
counterparts, each of which shall be deemed to constitute an original, and all
of the separate counterparts shall constitute one single document.  Delivery of an executed counterpart of a signature
page of this Agreement by fax or by sending a scanned copy by electronic
mail shall be as effective as delivery of a manually executed counterpart of
this Agreement.


 


19.8                           This
Agreement to Govern


 


In the event of any conflict or inconsistency
between the terms of this Agreement and the terms of any other Loan Document,
the provisions of this Agreement shall govern to the extent necessary to remove
the conflict or inconsistency.


 


19.9                           Applicable
Law


 


This Agreement, its interpretation and its
application shall be governed by the laws of the Province of Ontario and the
laws of Canada applicable therein.


 


19.10                     Severability


 


Each provision of this Agreement is separate
and distinct from the others, such that any decision of a court or tribunal to
the effect that any provision of this Agreement is null or unenforceable shall
in no way affect the validity of the other provisions of this Agreement or the
enforceability thereof.  Any provision of
this Agreement which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.  To the extent permitted by Applicable Law,
each Obligor hereby waives any provision of any Applicable Law that renders any
provision hereof prohibited or unenforceable in any respect.


 


19.11                     Further
Assurances


 


Each Obligor covenants and agrees that, at
the request of the Agent, it will at any time and from time to time execute and
deliver such further and other documents and instruments and do all acts and
things as the Agent may reasonably require in order to 


 


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evidence the Debt of the Borrower under this
Agreement or otherwise, to confirm its Guarantee or to further implement or
evidence any provision hereof or of the other Loan Documents


 


19.12                     Good
Faith and Fair Consideration


 


Each party hereto acknowledges and declares
that it has entered into this Agreement freely and of its own will.  In particular, each party hereto acknowledges
that this Agreement was freely negotiated by it in good faith, there was no
exploitation of the Obligors by the Lenders and there is no serious
disproportion between the consideration provided by the Lenders and that
provided by the Obligors.


 


19.13                     Responsibility
of the Lenders


 


Each Lender shall be solely responsible for
the performance of its own obligations hereunder.  Accordingly, no Lender is in any way or
jointly or jointly and severally responsible for the performance of the
obligations of any other Lender.


 


19.14                     Indemnity


 


The Borrower shall indemnify and hold
harmless each Supported Party and their agents, consultants and advisors (other
than agents, consultants and advisors to the extent that their costs and
expenses are not, pursuant to Section 12.14, to be borne by the Borrower),
and each of their Related Parties and each of their agents, consultants and
advisors (other than agents, consultants and advisors to the extent that their
costs and expenses are not, pursuant to Section 12.14, to be borne by the
Borrower), (each, an “Indemnified Party”)
from and against any and all claims, damages, losses, liabilities, costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel), including Environmental Claims, (each, a “Claim”) that may be incurred by, or asserted or awarded
against, any Indemnified Party, in each case arising out of or in connection
with or by reason of, the preparation for the defence of, any investigation,
litigation or proceeding, brought by Persons other than an Indemnified Party
arising out of, related to or in connection with (a) this Agreement, (b) the
other Loan Documents or (c) any of the transactions contemplated herein or
therein or the actual or proposed use of the proceeds of the Advances, whether
or not such investigation, litigation or proceeding is brought by any Obligor,
its directors, shareholders or creditors or by an Indemnified Party, or any
other Person, or any Indemnified Party is otherwise a party thereto, and
whether or not the transactions contemplated hereby are consummated; except to
the extent (i) such Claim results from such Indemnified Party’s gross
negligence, wilful misconduct, fraud, bad faith or breach of any Loan Document
to which such Indemnified Party is a party or relates to the liability of an
Indemnified Party to an Obligor under any Loan Document or (ii) relates solely
to a Claim between Indemnified Parties resulting from a Claim brought by any
Person, with no fault on the part of any Obligor; provided that in the case of
clauses (i) and (ii) above, the Borrower has obtained a judgment in
its favour of a court of competent jurisdiction. Each Obligor agrees not to
assert any claim against any Indemnified Party, and, without in any way
limiting any of their other rights or remedies hereunder or at law, each Lender
and the Agent, also agrees not to assert any claim 


 


95

















 


against any Obligor, its officers, directors,
employees, agents or advisors, on any theory of liability for special,
indirect, consequential or punitive damages arising out of or otherwise
relating to this Agreement and the other Loan Documents and any of the
transactions contemplated herein or therein or the actual or proposed use of
the proceeds of the Advances. The agreements in this Section shall survive
the termination of the Commitments and the repayment of all other amounts
outstanding hereunder and under the other Loan Documents.


 


19.15                     Confidentiality


 


19.15.1                               Each of the Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to it, its Affiliates and its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting having jurisdiction over it
(including any self-regulatory authority), (c) to the extent required by
Applicable Law or by any subpoena or similar legal process, (d) to any
other party hereto or to any party to the First Credit Agreement, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any Assignee of or Participant in, or any prospective
Assignee of or Participant in, any of its rights or obligations under this
Agreement, or (ii) any actual or prospective counterparty (or its
advisors) to any Derivative Instrument, credit-linked note or similar
transaction relating to the Obligors and their obligations, (g) with the
consent of the Borrower, or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes
available to the Agent or any Lender on a non-confidential basis from a source
other than an Obligor.


 


19.15.2                                 For purposes of this Section, “Information”
means all information received in connection with this Agreement from any
Obligor or any Related Person in respect thereof or any of their respective advisors,
in each case, relating to any Obligor or any of its Subsidiaries or any of
their respective businesses, other than any such information that is available
to the Agent or any Lender on a non-confidential basis prior to such receipt.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information 


 


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as
such Person would accord to its own confidential information.  In addition, the Agent may disclose to any
agency or organization that assigns standard identification numbers to loan
facilities such basic information describing the facilities provided hereunder
as is necessary to assign unique identifiers (and, if requested, supply a copy
of this Agreement), it being understood that the Person to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to make available to the public only such Information as such person
normally makes available in the course of its business of assigning
identification numbers.


 


19.15.3                                 In addition, and notwithstanding anything herein to the contrary,
the Agent may provide the information described on Exhibit C concerning
the Borrower and the credit facilities established herein to Loan Pricing
Corporation and/or other recognized trade publishers of information for general
circulation in the loan market.


 


19.16                     Reinstatement


 


This Agreement shall remain in full force and
effect and continue to be effective if any petition or other proceeding is
filed by or against the Borrower or any other Obligor for liquidation or
reorganization, or if the Borrower or any other Obligor becomes insolvent or
makes an assignment for the benefit of any creditor or creditors, or if an
interim receiver, receiver, receiver and manager or trustee be appointed for
all or any significant part of the Property of the Borrower or any other
Obligor, and shall continue to be effective or to be reinstated, as the case
may be, if at any time payment and performance of the obligations hereunder or
under the other Loan Documents, or any part thereof, is, pursuant to Applicable
Law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee of such obligations, whether as a fraudulent preference, a
reviewable transaction, or otherwise, all as though such payment or performance
had not been made.  In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
obligations hereunder and under the other Loan Documents shall be reinstated
and deemed reduced only by such amount paid and not so rescinded, reduced,
restored or returned.


 


19.17                     Submission
to Jurisdiction


 


Each Obligor irrevocably and unconditionally
submits, for itself and its Property, to the non-exclusive jurisdiction of the
courts of the Province of Ontario, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement or any
other Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
Nothing in this Agreement or in any other Loan Document shall affect any
right that the Agent or any Lender may otherwise 


 


97

















 


have to bring any action or proceeding
relating to this Agreement or any other Loan Document against any Obligor or
its Property in the courts of any jurisdiction.


 


19.18                     Waiver
of Venue


 


Each Obligor irrevocably and unconditionally
waives, to the fullest extent permitted by Applicable Law, any objection that
it may now or hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in Section 19.17. 
Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by Applicable Law, the defence of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


19.19                     Waiver
of Jury Trial


 


EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).  EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


19.20                     Language


 


The parties acknowledge that they have
required that this Agreement, the Loan Documents and all documents, notices and
legal proceedings entered into, given or instituted pursuant hereto or relating
directly or indirectly hereto be drawn up in English.  Les parties reconnaissent avoir exigé la
rédaction en anglais de la présente convention ainsi que de tous documents
exécutés, avis donnés et procédures judiciaires intentées, directement ou
indirectement, relativement ou à la suite de la présente convention.


 


19.21                     Third
Party Beneficiaries


 


Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in Section 18.5 and, to the extent contemplated
hereby, the Related Parties of each of the Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


98

















 


19.22                     Formal
Date


 


For the purposes of convenience, this
Agreement may be referred to as bearing the formal date of September 4,
2008, notwithstanding its actual date of signature.


 


[SIGNATURE PAGES
FOLLOW]


 


99

















 


IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date first
hereinabove mentioned.


 


	
  Address For Notice

  	
  THE BANK OF NOVA SCOTIA,

  
	
   

  	
  as Administrative Agent

  
	
  40 King Street West

  	
   

  
	
  Scotia Plaza, 62nd Floor

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ Alastair Borthwick

  
	
  M5W 2X6

  	
   

  	
  Name: Alastair Borthwick

  
	
   

  	
   

  	
  Title: Director

  
	
  Attention: Alastair Borthwick

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Telecopier: (416) 866-3329

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Voula Karidis

  
	
   

  	
   

  	
  Name: Voula Karidis

  
	
   

  	
   

  	
  Title: Associate Director

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S1

















 


IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date first
hereinabove mentioned.


 


	
  Address For Notice

  	
  THE BANK OF NOVA
  SCOTIA,

  
	
   

  	
  as Lender

  
	
  40 King Street West

  	
   

  
	
  Scotia Plaza, 62nd Floor

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ Ray Clarke

  
	
  M5W 2X6

  	
   

  	
  Name: Ray Clarke

  
	
   

  	
   

  	
  Title: Managing Director

  
	
  Attention: Ray Clarke

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:     (416)
  866-2009

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tim Decker

  
	
   

  	
   

  	
  Name: Tim Decker

  
	
   

  	
   

  	
  Title: Director

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S2














 


IN WITNESS WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  THE
  TORONTO-DOMINION BANK

  
	
   

  	
   

  
	
  66 Wellington Street West

  	
   

  
	
  TD Tower, 9th Floor

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ Rohan Appadurai

  
	
  M5K 1A2

  	
   

  	
  Name: Rohan Appadurai

  
	
   

  	
   

  	
  Title: Managing Director

  
	
  Attention:     Rohan
  Appadurai

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:     (416)
  944-5164

  	
  By:

  	
  /s/ Tom Minos

  
	
   

  	
   

  	
  Name: Tom Minos

  
	
   

  	
   

  	
  Title: Vice President

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S3

















 


IN WITNESS WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  BANK OF MONTREAL

  
	
   

  	
   

  
	
  Loan Products Group

  	
   

  
	
  100 King Street West

  	
   

  
	
  4th Floor

  	
  By:

  	
  /s/ Stephen Kelly

  
	
  Toronto, Ontario

  	
   

  	
  Name: Stephen Kelly

  
	
  M5X 1A1

  	
   

  	
  Title: Managing Director

  
	
   

  	
   

  	
   

  
	
  Attention:     Robert
  Wright

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Derek Tovich

  
	
  Facsimile:     (416)
  359-7796

  	
   

  	
  Name: Derek Tovich

  
	
   

  	
   

  	
  Title: Vice President

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S4

















 


IN WITNESS WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  COMMONWEALTH BANK OF

  
	
   

  	
  AUSTRALIA

  
	
  599 Lexington Avenue

  	
   

  
	
  Floor 17

  	
   

  
	
  New York, New York

  	
  By:

  	
  /s/ Guy Buxton

  
	
  U.S.A. 10022

  	
   

  	
  Name: Guy Buxton

  
	
   

  	
   

  	
  Title: Risk Executive

  
	
  Attention: Greg  Caione

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile: (212) 336-7722

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title: 

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S5

















 


IN WITNESS WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  BARCLAYS BANK PLC

  
	
   

  	
   

  
	
  5 The North Colonnade

  	
   

  
	
  Canary Wharf

  	
   

  
	
  London, England

  	
  By:

  	
  /s/ C. Baylis

  
	
  E14 4BB

  	
   

  	
  Name: C. Baylis

  
	
   

  	
   

  	
  Title: Associate Director

  
	
  Attention: Colin Hall

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile: 020 7773 1840

  	
  By:

  	
  /s/ Mark Pope

  
	
   

  	
   

  	
  Name: Mark Pope

  
	
   

  	
   

  	
  Title: Manager

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S6

















 


IN WITNESS WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  ROYAL BANK OF CANADA

  
	
   

  	
   

  
	
  5th Floor, South Tower

  	
   

  
	
  Royal Bank Plaza

  	
  By:

  	
  /s/ Stam Fountoulakis

  
	
  200 Bay Street

  	
   

  	
  Name: Stam Fountoulakis

  
	
  Toronto, Ontario

  	
   

  	
  Title: Authorized Signatory

  
	
  M5J 2W7

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention: Stam Fountoulakis

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
  Facsimile: (416) 842-5320

  	
   

  	
  Title: 

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S7

















 


IN WITNESS WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  NATIONAL BANK OF CANADA

  
	
   

  	
   

  
	
  Corporate Banking

  	
   

  
	
  1155 Metcalfe Street

  	
  By:

  	
  /s/ Andre Marenger

  
	
  5th floor

  	
   

  	
  Name: Andre Marenger

  
	
  Montreal, Quebec

  	
   

  	
  Title: Director

  
	
  H3B 4S9

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:     Andre
  Marenger

  	
  By:

  	
  /s/ Stephen Fiedding

  
	
   

  	
   

  	
  Name: Stephen Fiedding

  
	
  Facsimile:     (514)
  390-7860

  	
   

  	
  Title: Director

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S8

















 


IN WITNESS WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  AGNICO-EAGLE MINES LIMITED

  
	
   

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Name: R. Gregory Laing

  
	
   

  	
   

  	
  Title:

  	
  General Counsel, Senior
  Vice-President, Legal and Corporate Secretary

  
	
  Attention:     David
  Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:     (416)
  367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S9

















 


IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date first
hereinabove mentioned.


 


	
  Address For Notice

  	
  1715495 ONTARIO INC.

  
	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  Toronto, Ontario

  	
   

  	
  Name: R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Title: Vice-President Secretary and Director

  
	
   

  	
   

  	
   

  
	
  Attention:     David
  Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:     (416)
  367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S10

















 


IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date first
hereinabove mentioned.


 


	
  Address For Notice

  	
  1641315 ONTARIO INC.

  
	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  Toronto, Ontario

  	
   

  	
  Name: R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  	
   

  
	
  Attention:     David
  Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:     (416)
  367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S11

















 


IN WITNESS WHEREOF, the parties hereto have signed this Agreement on the date first
hereinabove mentioned.


 


	
  Address For Notice

  	
  AGNICO-EAGLE (DELAWARE) L.L.C.

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Name: R. Gregory Laing

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
  Attention:     David
  Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:     (416)
  367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S12














 


IN WITNESS
WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  AGNICO-EAGLE (DELAWARE) II L.L.C.

  
	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Name: R. Gregory Laing

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
  Attention:

  	
  David Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  (416) 367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S13

















 


IN WITNESS
WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  AGNICO-EAGLE (DELAWARE) III L.L.C.

  
	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Name: R. Gregory Laing

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
  Attention:

  	
  David Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  (416) 367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S14

















 


IN WITNESS
WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  AGNICO-EAGLE SWEDEN AB

  
	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Name: R. Gregory Laing

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
  Attention:

  	
  David Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  (416) 367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S15

















 


IN WITNESS
WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  AGNICO-EAGLE AB

  
	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Name: R. Gregory Laing

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
  Attention:

  	
  David Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  (416) 367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S16

















 


IN WITNESS
WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  RIDDARHYTTAN RESOURCES AB

  
	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Name: R. Gregory Laing

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
  Attention:

  	
  David Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  (416) 367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S17

















 


IN WITNESS
WHEREOF, the parties hereto have
signed this Agreement on the date first hereinabove mentioned.


 


	
  Address For Notice

  	
  AGNICO EAGLE MEXICO S.A. DE C.V.

  
	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  
	
  Toronto, Ontario

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
  Name: R. Gregory Laing

  
	
   

  	
   

  	
  Title: Attorney-in-Fact

  
	
  Attention:

  	
  David Garofalo

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  (416) 367-4681

  	
   

  	
   

  



 


[signature page for
Credit Agreement relating to The Bank of Nova Scotia, as lead arranger,


Agnico-Eagle Mines
Limited, as borrower, et al.]


 


S18