Exhibit 4.02


 


Execution Copy


 


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 Joint Lead Arranger, Joint Bookrunner and
Administrative Agent


 


- and -


 


THE TORONTO-DOMINION BANK


as Joint Lead Arranger, Joint Bookrunner and
Syndication Agent


 


- and -


 


BANK OF MONTREAL


as Co-Documentation Agent


 


- and -


 


CANADIAN IMPERIAL BANK OF COMMERCE


as Co-Documentation Agent


 


- and -


 


EXPORT DEVELOPMENT CANADA


as Co-Documentation Agent


 










 


AMENDED AND RESTATED CREDIT AGREEMENT


DATED AS OF JUNE 15, 2009


US$600,000,000 CREDIT FACILITIES


 










 


BORDEN LADNER GERVAIS LLP 


 


DAVIES WARD PHILLIPS & VINEBERG LLP


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  INTERPRETATION

  	
  2

  
	
   

  	
  1.1

  	
  Definitions

  	
  2

  
	
   

  	
  1.2

  	
  Interpretation

  	
  32

  
	
   

  	
  1.3

  	
  Currency

  	
  32

  
	
   

  	
  1.4

  	
  Generally Accepted
  Accounting Principles

  	
  32

  
	
   

  	
  1.5

  	
  Division and Titles

  	
  33

  
	
   

  	
  1.6

  	
  Calculations

  	
  33

  
	
   

  	
  1.7

  	
  Amendment and
  Restatement

  	
  33

  
	
  2.

  	
  THE CREDIT

  	
  33

  
	
   

  	
  2.1

  	
  Amounts of Credit
  Facility

  	
  33

  
	
   

  	
  2.2

  	
  Availment Options under
  Credit Facility

  	
  34

  
	
   

  	
  2.3

  	
  Revolving Credit
  Facility

  	
  34

  
	
   

  	
  2.4

  	
  Purpose/Use of the
  Credit Facility

  	
  34

  
	
   

  	
  2.5

  	
  Term and Repayment

  	
  34

  
	
   

  	
  2.6

  	
  Voluntary Prepayments
  and Voluntary Cancellations

  	
  34

  
	
   

  	
  2.7

  	
  Interest Rates

  	
  35

  
	
   

  	
  2.8

  	
  Exchange Rate
  Fluctuations

  	
  37

  
	
   

  	
  2.9

  	
  Pro-Rata Utilizations

  	
  37

  
	
  3.

  	
  ADVANCES, CONVERSIONS
  AND OPERATION OF ACCOUNTS

  	
  38

  
	
   

  	
  3.1

  	
  Notice of Borrowing -
  Direct Advances

  	
  38

  
	
   

  	
  3.2

  	
  Canadian Dollar-Libor
  Funded Advances

  	
  38

  
	
   

  	
  3.3

  	
  LIBOR Advances and
  Conversions

  	
  39

  
	
   

  	
  3.4

  	
  Evidence of
  Indebtedness

  	
  39

  
	
   

  	
  3.5

  	
  Apportionment of
  Advances

  	
  40

  
	
   

  	
  3.6

  	
  Notices Irrevocable

  	
  40

  
	
   

  	
  3.7

  	
  Limits on BA Advances
  and Libor Advances

  	
  40

  
	
  4.

  	
  CALCULATION OF INTEREST
  AND FEES

  	
  40

  
	
   

  	
  4.1

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

  	
  40

  
	
   

  	
  4.2

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

  	
  40

  
	
   

  	
  4.3

  	
  Calculation of Interest
  on Libor Basis

  	
  40

  
	
   

  	
  4.4

  	
  Payment of Interest on
  Libor Basis

  	
  41

  
	
   

  	
  4.5

  	
  Fixing of LIBOR

  	
  41

  
	
   

  	
  4.6

  	
  Interest on Miscellaneous
  Amounts

  	
  41

  
	
   

  	
  4.7

  	
  Default Interest

  	
  41

  
	
   

  	
  4.8

  	
  Maximum Interest Rate

  	
  42

  
	
   

  	
  4.9

  	
  Interest
  Act

  	
  42

  
	
  5.

  	
  BANKERS’ACCEPTANCES

  	
  42

  
	
   

  	
  5.1

  	
  Advances by Bankers’
  Acceptances and Conversions into Bankers’ Acceptances

  	
  42

  
	
   

  	
  5.2

  	
  Acceptance Procedure

  	
  43

  
	
   

  	
  5.3

  	
  Purchase of Bankers’
  Acceptances and Discount Notes

  	
  44

  
	
   

  	
  5.4

  	
  Maturity Date of
  Bankers’ Acceptances

  	
  45

  
	
   

  	
  5.5

  	
  Deemed Conversions on
  the Maturity Date of Bankers’ Acceptances

  	
  45

  
	
   

  	
  5.6

  	
  Conversion and
  Extension Mechanism

  	
  45

  
	
   

  	
  5.7

  	
  No Prepayment of
  Bankers’ Acceptances

  	
  46

  



 


i





















 


	
   

  	
  5.8

  	
  Apportionment Amongst
  the Lenders

  	
  46

  
	
   

  	
  5.9

  	
  Days of Grace

  	
  46

  
	
   

  	
  5.10

  	
  Obligations Absolute

  	
  46

  
	
   

  	
  5.11

  	
  Depository
  Bills and Notes Act

  	
  47

  
	
  6. 

  	
  ILLEGALITY, INCREASED
  COSTS, INDEMNIFICATION AND MARKET DISRUPTIONS

  	
  47

  
	
   

  	
  6.1

  	
  Illegality

  	
  47

  
	
   

  	
  6.2

  	
  Increased Costs

  	
  48

  
	
   

  	
  6.3

  	
  Taxes

  	
  49

  
	
   

  	
  6.4

  	
  Breakage Costs, Failure
  to Borrow or Repay After Notice

  	
  51

  
	
   

  	
  6.5

  	
  Mitigation Obligations:
  Replacement of Lenders

  	
  52

  
	
   

  	
  6.6

  	
  Market for Bankers’
  Acceptances and Libor Advances

  	
  54

  
	
  7.

  	
  PROVISIONS RELATING TO
  PAYMENTS

  	
  54

  
	
   

  	
  7.1

  	
  Payment of Losses
  Resulting From a Prepayment

  	
  54

  
	
   

  	
  7.2

  	
  Imputation of
  Prepayments

  	
  55

  
	
   

  	
  7.3

  	
  Currency of Payments

  	
  55

  
	
   

  	
  7.4

  	
  Payments by the
  Borrower to the Agent

  	
  55

  
	
   

  	
  7.5

  	
  Payment on a Business
  Day

  	
  55

  
	
   

  	
  7.6

  	
  Payments by the Lenders
  to the Agent

  	
  55

  
	
   

  	
  7.7

  	
  Netting

  	
  55

  
	
   

  	
  7.8

  	
  Application of Payments

  	
  56

  
	
   

  	
  7.9

  	
  No Set-Off or
  Counterclaim by Borrower

  	
  56

  
	
   

  	
  7.10

  	
  Debit Authorization

  	
  56

  
	
  8.

  	
  GUARANTEES

  	
  56

  
	
   

  	
  8.1

  	
  Guarantees

  	
  56

  
	
   

  	
  8.2

  	
  Additional Guarantors

  	
  57

  
	
   

  	
  8.3

  	
  Obligations Supported
  by the Guarantees

  	
  57

  
	
   

  	
  8.4

  	
  Other Supported
  Obligations

  	
  57

  
	
   

  	
  8.5

  	
  Limitation

  	
  58

  
	
  9.

  	
  CONDITIONS PRECEDENT

  	
  58

  
	
   

  	
  9.1

  	
  Conditions to
  Effectiveness

  	
  58

  
	
   

  	
  9.2

  	
  Conditions Precedent to
  each Advance

  	
  60

  
	
   

  	
  9.3

  	
  Waiver of Conditions
  Precedent

  	
  60

  
	
  10.

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
  60

  
	
   

  	
  10.1

  	
  Existence, Power and
  Authority

  	
  60

  
	
   

  	
  10.2

  	
  Loan Documents

  	
  61

  
	
   

  	
  10.3

  	
  Conduct of Business

  	
  61

  
	
   

  	
  10.4

  	
  Litigation

  	
  62

  
	
   

  	
  10.5

  	
  Financial Statements
  and Information

  	
  62

  
	
   

  	
  10.6

  	
  Subsidiaries, etc

  	
  63

  
	
   

  	
  10.7

  	
  Title to Property

  	
  63

  
	
   

  	
  10.8

  	
  Taxes

  	
  63

  
	
   

  	
  10.9

  	
  Insurance

  	
  63

  
	
   

  	
  10.10

  	
  No Material Adverse
  Effect

  	
  63

  
	
   

  	
  10.11

  	
  Pension Matters

  	
  63

  



 


ii





















 


	
   

  	
  10.12

  	
  Ranking and Priority

  	
  64

  
	
   

  	
  10.13

  	
  Absence of Default

  	
  64

  
	
   

  	
  10.14

  	
  Environment

  	
  64

  
	
   

  	
  10.15

  	
  Mines

  	
  65

  
	
   

  	
  10.16

  	
  Complete and Accurate Information

  	
  65

  
	
   

  	
  10.17

  	
  Survival of
  Representations and Warranties

  	
  66

  
	
  11.

  	
  FINANCIAL COVENANTS

  	
  66

  
	
   

  	
  11.1

  	
  Total Net Debt to
  EBITDA Ratio

  	
  66

  
	
   

  	
  11.2

  	
  Tangible Net Worth

  	
  66

  
	
  12.

  	
  AFFIRMATIVE COVENANTS

  	
  67

  
	
   

  	
  12.1

  	
  Existence and Good
  Standing

  	
  67

  
	
   

  	
  12.2

  	
  Permits

  	
  67

  
	
   

  	
  12.3

  	
  Books and Records

  	
  67

  
	
   

  	
  12.4

  	
  Property

  	
  67

  
	
   

  	
  12.5

  	
  Material Contracts

  	
  67

  
	
   

  	
  12.6

  	
  Financial Information

  	
  68

  
	
   

  	
  12.7

  	
  Compliance with
  Applicable Law

  	
  68

  
	
   

  	
  12.8

  	
  Insurance

  	
  68

  
	
   

  	
  12.9

  	
  Payment of Taxes

  	
  68

  
	
   

  	
  12.10

  	
  Access and Inspection

  	
  69

  
	
   

  	
  12.11

  	
  Maintenance of Accounts

  	
  69

  
	
   

  	
  12.12

  	
  Performance of
  Obligations

  	
  69

  
	
   

  	
  12.13

  	
  Litigation

  	
  69

  
	
   

  	
  12.14

  	
  Payment of Fees and
  Other Expenses

  	
  69

  
	
  13.

  	
  REPORTING AND NOTICE
  REQUIREMENTS

  	
  70

  
	
   

  	
  13.1

  	
  Financial and Other
  Reporting

  	
  70

  
	
   

  	
  13.2

  	
  Requirements for Notice

  	
  72

  
	
  14.

  	
  NEGATIVE COVENANTS

  	
  73

  
	
   

  	
  14.1

  	
  Debt

  	
  73

  
	
   

  	
  14.2

  	
  Liens

  	
  73

  
	
   

  	
  14.3

  	
  Investments

  	
  73

  
	
   

  	
  14.4

  	
  Distributions

  	
  73

  
	
   

  	
  14.5

  	
  Asset Dispositions

  	
  73

  
	
   

  	
  14.6

  	
  Derivative Instruments

  	
  74

  
	
   

  	
  14.7

  	
  Line of Business

  	
  74

  
	
   

  	
  14.8

  	
  Affiliate Transactions

  	
  74

  
	
   

  	
  14.9

  	
  Subordinated Debt

  	
  75

  
	
   

  	
  14.10

  	
  Liquidation and
  Amalgamation

  	
  75

  
	
  15.

  	
  EVENTS OF DEFAULT AND
  ENFORCEMENT

  	
  76

  
	
   

  	
  15.1

  	
  Events of Default

  	
  76

  
	
   

  	
  15.2

  	
  Remedies

  	
  78

  
	
   

  	
  15.3

  	
  Notice

  	
  79

  
	
   

  	
  15.4

  	
  Escrowed Funds for
  Bankers’ Acceptances

  	
  79

  
	
   

  	
  15.5

  	
  Costs

  	
  80

  
	
   

  	
  15.6

  	
  Relations with the
  Obligors

  	
  80

  



 


iii





















 


	
   

  	
  15.7

  	
  Application of Proceeds

  	
  81

  
	
  16.

  	
  THE AGENT AND THE
  LENDERS

  	
  81

  
	
   

  	
  16.1

  	
  Authorization of Agent

  	
  81

  
	
   

  	
  16.2

  	
  Agent’s Responsibility

  	
  82

  
	
   

  	
  16.3

  	
  Rights of Agent as
  Lender

  	
  83

  
	
   

  	
  16.4

  	
  Indemnity by Lenders

  	
  84

  
	
   

  	
  16.5

  	
  Notice by Agent to
  Lenders

  	
  84

  
	
   

  	
  16.6

  	
  Protection of Agent -
  Advances and Payments

  	
  84

  
	
   

  	
  16.7

  	
  Notice by Lenders to
  Agent

  	
  85

  
	
   

  	
  16.8

  	
  Sharing Among the
  Lenders

  	
  85

  
	
   

  	
  16.9

  	
  Procedure With Respect
  to Advances

  	
  86

  
	
   

  	
  16.10

  	
  Non-Payment by Lenders

  	
  87

  
	
   

  	
  16.11

  	
  Accounts Kept by Each
  Lender

  	
  87

  
	
   

  	
  16.12

  	
  Binding Determinations

  	
  87

  
	
   

  	
  16.13

  	
  Amendment of
  Article 16

  	
  87

  
	
   

  	
  16.14

  	
  Decisions, Amendments
  and Waivers of the Lenders

  	
  87

  
	
   

  	
  16.15

  	
  Authorized Waivers,
  Variations and Omissions

  	
  88

  
	
   

  	
  16.16

  	
  Provisions for the
  Benefit of Lenders Only

  	
  88

  
	
   

  	
  16.17

  	
  Assignment by Agent to an
  Affiliate

  	
  88

  
	
   

  	
  16.18

  	
  Collective Action of
  the Lenders

  	
  88

  
	
   

  	
  16.19

  	
  Resignation of Agent

  	
  89

  
	
  17.

  	
  CURRENCY
  CONVERSION, ETC.

  	
  90

  
	
   

  	
  17.1

  	
  Rules of
  Conversion

  	
  90

  
	
   

  	
  17.2

  	
  Determination of
  Equivalent Amount in another Currencies

  	
  90

  
	
  18.

  	
  ASSIGNMENT

  	
  91

  
	
   

  	
  18.1

  	
  Assignment by the
  Borrower

  	
  91

  
	
   

  	
  18.2

  	
  Assignments and
  Transfers by the Lenders

  	
  91

  
	
   

  	
  18.3

  	
  Register

  	
  93

  
	
   

  	
  18.4

  	
  Electronic Execution of
  Assignments

  	
  93

  
	
   

  	
  18.5

  	
  Participations

  	
  93

  
	
   

  	
  18.6

  	
  Limitations Upon
  Participant Rights

  	
  94

  
	
   

  	
  18.7

  	
  Promissory Notes

  	
  94

  
	
  19.

  	
  MISCELLANEOUS

  	
  94

  
	
   

  	
  19.1

  	
  Notices

  	
  94

  
	
   

  	
  19.2

  	
  Amendment and Waiver

  	
  95

  
	
   

  	
  19.3

  	
  Lender Replacement

  	
  96

  
	
   

  	
  19.4

  	
  Independent Engineer
  and Other Consultants

  	
  99

  
	
   

  	
  19.5

  	
  Entire Agreement

  	
  99

  
	
   

  	
  19.6

  	
  Indemnification and
  Set-Off

  	
  99

  
	
   

  	
  19.7

  	
  Benefit of Agreement

  	
  99

  
	
   

  	
  19.8

  	
  Counterparts

  	
  99

  
	
   

  	
  19.9

  	
  This Agreement to
  Govern

  	
  100

  
	
   

  	
  19.10

  	
  Applicable Law

  	
  100

  
	
   

  	
  19.11

  	
  Severability

  	
  100

  
	
   

  	
  19.12

  	
  Further Assurances

  	
  100

  
	
   

  	
  19.13

  	
  Good Faith and Fair
  Consideration

  	
  100

  



 


iv





















 


	
   

  	
  19.14

  	
  Responsibility of the
  Lenders

  	
  101

  
	
   

  	
  19.15

  	
  Indemnity

  	
  101

  
	
   

  	
  19.16

  	
  Confidentiality

  	
  102

  
	
   

  	
  19.17

  	
  Reinstatement

  	
  103

  
	
   

  	
  19.18

  	
  Submission to
  Jurisdiction

  	
  103

  
	
   

  	
  19.19

  	
  Waiver of Venue

  	
  104

  
	
   

  	
  19.20

  	
  Waiver of Jury Trial

  	
  104

  
	
   

  	
  19.21

  	
  Language

  	
  104

  
	
   

  	
  19.22

  	
  Third Party
  Beneficiaries

  	
  104

  
	
   

  	
  19.23

  	
  Formal Date

  	
  104

  
	
   

  	
  19.24

  	
  Swedish Companies Act

  	
  105

  
	
  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














 


AMENDED AND RESTATED CREDIT AGREEMENT entered into as of the 15th day of June,
2009


 


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 certain of the parties entered into a
credit agreement dated as of September 4, 2008 (the “Existing
Credit Agreement”);


 


AND WHEREAS the Borrower has requested certain
amendments to the credit facilities available under the Existing Credit
Agreement, as set forth herein;


 


AND WHEREAS the parties hereto are entering into this
Agreement to provide for the terms of such amended credit facilities by
amending and restating the Existing Credit Agreement.


 





















 


NOW THEREFORE for valuable consideration and intending to be legally
bound by this Agreement, the parties agree that the Existing Credit Agreement
is amended and restated 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             “Accepting Lender Notice”  has the meaning defined in Section 19.3.2;


 


1.1.3             “Acquisition Deadline”  has the meaning defined in Section 19.3.3.1;


 


1.1.4             “Acquisition Notice”  has the meaning defined in Section 19.3.3.1;


 


1.1.5             “Acquisition Request Notice”  has the meaning defined in Section 19.3.3;


 


1.1.6             “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;


 


1.1.7             “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;


 


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


 


1.1.9             “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;


 


2





















 


1.1.10           “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;


 


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


 


1.1.12           “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;


 


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


 


1.1.14           “Approving Lenders” has the meaning defined in Section 19.3.2;


 


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


 


1.1.16           “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;


 


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


 


1.1.18           “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;


 


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


 


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


 


3





















 


1.1.21           “Available
Amount” has the meaning defined in Section 19.3.3.1;


 


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


 


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


 


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


 


1.1.25           “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”);


 


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


 


1.1.27           “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”;


 


1.1.28           “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


 


4





















 


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 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;


 


1.1.29           “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;


 


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


 


1.1.31           “Branch” means the
Global Wholesale Services – Loan Operations department of The Bank of Nova
Scotia at 720 King Street West,


 


5





















 


Third Floor,
Toronto, Ontario, M5V 2T3 or such other branch as is designated from time to
time by the Agent;


 


1.1.32           “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;


 


1.1.33           “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”;


 


1.1.34           “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;


 


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


 


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


 


1.1.37           “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;


 


1.1.38           “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;


 


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


 


1.1.39.1           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;


 


1.1.39.2           marketable
direct obligations of the governments of one of the provinces of Canada, one of
the states of the USA, or


 


6





















 


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-l by S&P,
at least P-l by Moody’s or at least R-l(middle) by DBRS;


 


1.1.39.3           commercial
paper, bonds, notes, debentures and bankers’ acceptances issued by a Person
residing in Canada or the USA and not referred to in subsections 1.1.39.1,
1.1.39.2 or 1.1.39.4, 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-l by S&P, at least P-l by Moody’s or at least
R-l(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 appearing on the list of “Global
Liquidity Standard for ABCP Issuers” published and maintained by DBRS;


 


1.1.39.4           (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-l
by S&P, at least P-l by Moody’s or at least R-l(middle) by DBRS;


 


1.1.39.5           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
1.1.39.4 which is secured by a fully perfected security interest in any
obligation of the type described in subsection 1.1.39.1 or 1.1.39.2 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


 


7





















 


1.1.39.6           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);


 


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


 


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


 


1.1.42           “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;


 


1.1.43           “Change of
Control” means:


 


(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;


 


8

















 


1.1.44           “Claim” has the meaning defined in Section 19.15;


 


1.1.45           “Closing
Date” means September 4, 2008;


 


1.1.46           “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 such commitments change in
accordance with this Agreement;


 


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


 


1.1.48           “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 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;


 


1.1.49           “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;


 


1.1.50           “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;


 


1.1.51           “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;


 


1.1.52           “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;


 


9














 


1.1.53           “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;


 


1.1.54           “Credit Facility” has the meaning defined in Section 2.1;


 


1.1.55           “DBRS” means DBRS
Limited;


 


1.1.56           “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:


 


1.1.56.1           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;


 


1.1.56.2           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;


 


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


 


1.1.56.4           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
1.1.56.4) 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 1.1.56.4);


 


1.1.56.5           all Capital
Lease Obligations, obligations under Synthetic Leases, obligations under sale
and leaseback transactions


 


10

















 


(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


 


1.1.56.6           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
1.1.56.1 through 1.1.56.5 above;


 


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


 


1.1.57           “Declining
Lenders” has the meaning defined in Section 19.3.2;


 


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


 


1.1.59           “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;


 


1.1.60           “Defaulting
Lender” means any Lender that (a) has failed to fund
any portion of the Advances required to be funded by it hereunder within three
Business Days of the date required to be funded by it hereunder unless such
failure has been cured, (b) has otherwise failed to pay over to the Agent
or any other Lender any other amount required to be paid by it hereunder within
three Business Days of the date when due, unless the subject of a good faith
dispute or unless such failure has been cured, (c) has been determined by
a court of competent jurisdiction or regulator to be insolvent or is unable to
meet its obligations or pay its debts as they generally become due, (d) is
the subject of a bankruptcy or insolvency proceeding or (e) is subject to
or is seeking the appointment of an administrator, regulator, conservator,
liquidator, receiver, trustee, custodian or other similar official over any
portion of its assets or business;


 


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


 


1.1.62           “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


 


11

















 


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);


 


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


 


1.1.64           “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;


 


1.1.65           “Desired
Acquisition Amount” has the meaning defined in Section 19.3.3.1;


 


1.1.66           “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;


 


1.1.67           “Distribution” means:


 


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


 


1.1.67.2           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;


 


1.1.67.3           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;


 


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


 


1.1.67.5           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;


 


1.1.68           “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;


 


12

















 


1.1.69           “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:


 


1.1.69.1           onsite and
offsite cash operating costs for such period;


 


1.1.69.2           cash general
and administrative expenses for such period;


 


1.1.69.3           cash capital
taxes for such period; and


 


1.1.69.4           cash
reclamation expenditures for such period;


 


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


 


1.1.70           “Effective
Date” means the date on which all of the conditions specified in Section 9.1
are satisfied or waived in accordance with Section 9.3, as confirmed in a
written notice from the Agent to the Borrower;


 


1.1.71           “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;


 


1.1.72           “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;


 


1.1.73           “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


 


13

















 


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);


 


1.1.74           “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 Effective 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;


 


1.1.75           “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;


 


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


 


1.1.77           “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


 


14

















 


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;


 


1.1.78           “Existing Credit Agreement” has the
meaning defined in the recitals hereto;


 


1.1.79           “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;


 


1.1.80           “Fee Letter” means the
confidential letter agreement dated June 15, 2009 between the Borrower and
the Agent, providing for the payment of certain fees in relation to the Credit
Facility;


 


1.1.81           “First Credit Agreement” means the
dated as of June 15, 2009 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;


 


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


 


1.1.83           “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);


 


15

















 


1.1.84           “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;


 


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


 


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


 


1.1.87           “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;


 


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


 


1.1.89           “Guaranteed
Obligations” means the Loan Obligations, the Other Supported
Obligations and all other indebtedness, liabilities and obligations of the
Obligors under the Loan Documents;


 


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


 


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


 


1.1.92           “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;


 


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1.1.93           “Indemnified
Party” has the meaning defined in Section 19.15;


 


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


 


1.1.95           “Information”
has the meaning defined in Section 19.16.2;


 


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


 


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


 


1.1.98           “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;


 


1.1.99           “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;


 


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


 


1.1.101         “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;


 


1.1.102         “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;


 


1.1.103         “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


 


17

















 


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;


 


1.1.104         “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;


 


1.1.105         “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;


 


1.1.106         “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;


 


1.1.107         “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;


 


1.1.108         “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;


 


18

















 


1.1.109         “Lien” means:


 


1.1.109.1         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;


 


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


 


1.1.109.3         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;


 


1.1.109.4         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


 


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


 


and “Liens” shall have corresponding meaning;


 


1.1.110         “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;


 


1.1.111         “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


 


19

















 


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”;


 


1.1.112         “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; provided that, the
unfunded Commitments of, and the outstanding Advances held or deemed to be held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Majority Lenders;


 


1.1.113         “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;


 


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


 


1.1.115         “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;


 


1.1.116         “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;


 


1.1.117         “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 the
equivalent amount in any other applicable currency at the applicable FX Rate)
or more or the consolidated total revenues of which, at any time, are
US$20,000,000 (or the equivalent amount in any other applicable currency at the
applicable FX Rate) or


 


20

















 


more (on an annual basis), which on the Effective 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”;


 


1.1.118         “Maturity
Date” means June 14, 2012;


 


1.1.119         “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;


 


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


 


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


 


1.1.122         “Net Cash
Proceeds” means, with respect to any Asset Disposition, the
gross amount of proceeds payable in cash or Cash Equivalents to the Obligors,
or any one or more of them, arising from such Asset Disposition, less:


 


1.1.122.1         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;


 


1.1.122.2         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


 


1.1.122.3         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;


 


21














 


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


 


1.1.124         “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;


 


1.1.125         “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;


 


1.1.126         “Obligors” means the
Borrower and the Guarantors;


 


1.1.127         “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;


 


1.1.128         “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 than the lowest credit rating of any Lender that
has a credit rating on the Effective 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; plus any Declining Lender which becomes an Other
Derivative Counterparty pursuant to Sections 6.5.2.5 or 19.3.3.2;


 


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


 


1.1.130         “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;


 


1.1.131         “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


 


22

















 


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”;


 


1.1.132         “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;


 


1.1.133         “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;


 


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


 


1.1.135         “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;


 


1.1.136         “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;


 


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


 


1.1.137.1         the Loan Obligations;


 


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


 


23

















 


1.1.137.3         the Guarantees;


 


1.1.137.4         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;


 


1.1.137.5         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;


 


1.1.137.6         Debt secured by Permitted
Liens;


 


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


 


1.1.137.8         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 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);


 


1.1.137.9         Subordinated Debt;


 


1.1.137.10       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;


 


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


 


1.1.137.12       unsecured Debt under the
First Credit Agreement; and


 


1.1.137.13       unsecured Debt incurred at a
time when no Default or Event of Default has occurred and is continuing in
respect of letters of credit, letters of guarantee, surety bonds, performance
bonds or guarantees and similar types of


 


24

















 


instruments issued in the Ordinary Course or in
connection with an Obligor’s Core Business; but excluding any of the foregoing
incurred to secure or support indebtedness for borrowed money (including,
without limitation, by way of overdraft and drafts or orders accepted
representing extensions of credit in respect of borrowed money);


 


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


 


1.1.138.1         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;


 


1.1.138.2         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;


 


1.1.138.3         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;


 


1.1.138.4         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;


 


1.1.138.5         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;


 


1.1.138.6         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;


 


25

















 


1.1.138.7         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;


 


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


 


1.1.138.9         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;


 


1.1.138.10       without duplicating
subsections 1.1.138.8 and 1.1.138.11, 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;


 


1.1.138.11       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;


 


1.1.138.12       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 Effective 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;


 


1.1.138.13       pledges or deposits of cash
or cash equivalent instruments made at a time when no Default or Event of
Default has occurred and is continuing for purposes of securing obligations to (i) financial
institutions issuing letters of credit to secure obligations under Pension
Plans, retirement plans or for government reclamation costs, or (ii) issuers
of letters of credit, letters of guarantee, surety


 


26

















 


bonds, performance bonds or guarantees and similar
types of instruments issued in the Ordinary Course or in connection with an
Obligor’s Core Business; but excluding any of the foregoing incurred to secure
or support indebtedness for borrowed money (including, without limitation, by
way of overdraft and drafts or orders accepted representing extensions of
credit in respect of borrowed money);


 


1.1.138.14       those Liens existing on the
Property of such Person (or a predecessor of such Person) on the Effective 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;


 


1.1.139         “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;


 


1.1.140         “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;


 


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


 


1.1.142         “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;


 


1.1.143         “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;


 


27

















 


1.1.144         “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;


 


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


 


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


 


1.1.147         “Prior Fee
Letter” means the confidential letter agreement dated September 4,
2008 between the Borrower and The Bank of Nova Scotia, as lead arranger and as
agent, providing for the payment of certain fees in respect of the Credit
Facility (as defined in the Existing Credit Agreement);


 


1.1.148         “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;


 


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


 


1.1.150         “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;


 


1.1.151         “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);


 


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


 


1.1.153         “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;


 


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


 


1.1.155         “Scheduler 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


 


28

















 


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;


 


1.1.156         “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;


 


1.1.157         “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;


 


1.1.158         “Second
Currency” has the meaning defined in Sectionl 7.1;


 


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


 


1.1.160         “Selected
Amount” means:


 


1.1.160.1         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


 


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


 


1.1.161         “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;


 


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


 


1.1.163         “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 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;


 


29

















 


1.1.164         “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);


 


1.1.165         “Substitute
Lenders” has the meaning defined in Sectionl9.3.3.3;


 


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


 


1.1.167         “Supported
Obligations” means the Loan Obligations, the obligations of the
Obligors under the Loan Documents and the Other Supported Obligations;


 


1.1.168         “Supported
Parties” means, at any time, the Lenders and the Agent in
respect of the Loan Obligations and the Guaranteed 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;


 


1.1.169         “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;


 


1.1.170         “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;


 


1.1.171         “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;


 


1.1.172         “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);


 


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


 


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


 


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


 


30

















 


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


 


1.1.177         “Unanimous
Lender Request” has the meaning defined in Section 19.3.1;


 


1.1.178         “Unanimous
Lender Response Notice” has the meaning defined in Section 19.3.1;


 


1.1.179         “Unanimous
Lender Response Period” has the meaning defined in Section 19.3.1;


 


1.1.180         “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;


 


1.1.181         “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;


 


1.1.182         “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;


 


1.1.183         “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;


 


1.1.184         “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;


 


1.1.185         “USA” means the
United States of America.


 


31














 


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;


 


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 Existing 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.


 


32

















 


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.


 


1.6           Calculations


 


Amounts in respect of
interest, fees and other amounts payable to or for the account of the Agent and
the Lenders shall be calculated (i) in accordance with the provisions of
the Existing Credit Agreement with respect to any period prior to the Effective
Date and (ii) in accordance with the provisions of this Agreement with
respect to any period on or after the Effective Date.


 


1.7           Amendment and Restatement


 


This Agreement is and shall for all purposes be an amendment and a
restatement of the provisions of the Existing Credit Agreement. This Agreement
supersedes the Existing Credit Agreement insofar as it constitutes the entire
agreement between the parties concerning the subject matter of this Agreement,
but does not constitute a novation of the Existing Credit Agreement, the
Guarantees (as defined in the Existing Credit Agreement) or any of the
indebtedness, liabilities or obligations of the Borrower under the Existing
Credit Agreement. All Advances (as defined in the Existing Credit Agreement)
are Advances under this Agreement, and all of the indebtedness, liabilities and
obligations under the Existing Credit Agreement constitutes indebtedness,
liabilities and obligations under this Agreement. Without in any way limiting
the terms of the Existing Credit Agreement, the Borrower and the Guarantors
confirm that the existing Guarantees continue to support, inter alia, all of such indebtedness,
liabilities and obligations, including but not limited to that arising under
this Agreement. Section references to the Existing Credit Agreement in the
Guarantees granted in connection with the Existing Credit Agreement shall be
deemed to be amended, as applicable, to refer to the corresponding section
references of this Agreement.


 


2.             THE CREDIT


 


2.1           Amounts of Credit Facility


 


Subject to the applicable provisions hereof, each Lender shall continue
its outstanding Advances (as defined in the Existing Credit Agreement) to the
Borrower on the terms and conditions set forth herein and 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$600,000,000 or the equivalent
thereof in Canadian Dollars, as the same may be reduced in accordance with the
terms hereof (the “Credit Facility”).


 


33

















 


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.


 


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


 


34

















 


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

  	
   

  	
  3.00

  	
  %

  	
  2.00

  	
  %

  	
  0.900

  	
  %

  
	
  >1.50 and <
  2.00

  	
   

  	
  3.25

  	
  %

  	
  2.25

  	
  %

  	
  0.975

  	
  %

  
	
  >2.00 and <
  2.50

  	
   

  	
  3.50

  	
  %

  	
  2.50

  	
  %

  	
  1.050

  	
  %

  
	
  >2.50

  	
   

  	
  4.00

  	
  %

  	
  3.00

  	
  %

  	
  1.200

  	
  %

  



 


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 Effective Date to the Reporting Effective Date in
respect of the first full fiscal quarter of the Borrower immediately following
the Effective 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 Effective Date. Changes in the Applicable Margin shall be
effective as of two Business Days following the earlier of the day upon which
such 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


 


35

















 


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; provided that,
from the Effective Date to the first Business Day following the first full
fiscal quarter of the Borrower immediately following the Effective Date, the
Standby Fee shall be based on the Total Net Debt to EBITDA Ratio reported in
the Compliance Certificate delivered by the Borrower on the Effective Date.
Upon final payment of the Loan Obligations, the Borrower shall also pay any
accrued but unpaid Standby Fees on the Credit Facility. Notwithstanding the
foregoing, Standby Fees shall cease to accrue on the unfunded portion of the
Commitment of a Lender while it is a Defaulting Lender.


 


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


 


36

















 


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


 


37

















 


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


 


38

















 


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.


 


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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


 


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determined in accordance with subsection 2.7.1, and shall be effective
as and from and including the Drawdown Date.


 


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


 


41

















 


same rate. All interest payable pursuant to this Section 4.7 shall
be payable upon demand.


 


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.


 


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


 


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


 


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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:


 


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


 


44

















 


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
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


 


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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
orl9.6, 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.


 


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


 


46

















 


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
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


 


47

















 


obligations under Section 19.6 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 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


 


48

















 


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.lor 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.


 


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


 


49

















 


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.


 


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


 


50

















 


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.


 


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


 


51

















 


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); provided that, the Borrower shall
not be required to indemnify a Lender for any such cost or expense if such cost
or expense is sustained or incurred by such Lender while it is a Defaulting
Lender . 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.


 


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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 becomes a
Defaulting Lender, 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); provided, however, that the Borrower shall not be required to
pay an assigning Lender that is a Defaulting Lender in respect of breakage
costs or other amounts required to be paid as a result of prepayment to such
Lender;


 


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;


 


6.5.2.4             such Assignment
does not conflict with Applicable Law; and


 


6.5.2.5             if an assigning
Lender or an Affiliate of an assigning Lender is a party to a Derivative Instrument
with an Obligor, upon the completion of the acquisition of such assigning
Lender’s interests, rights and obligations under this Agreement and the related
Loan Documents, such assigning Lender shall, upon completion of such
assignment, either (i) terminate each guarantee provided by any Obligor in
connection therewith, in which case, such


 


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assigning Lender or its applicable Affiliate shall
be deemed to be an Other Derivative Counterparty or (ii) assign, at a
price determined in a reasonable manner from market quotations in accordance
with customary market practices, all Derivative Instruments it or they hold
with each Obligor to the applicable assignee or to another Lender or its
Affiliate or to an Other Derivative Counterparty, and if, upon such assignment,
any guarantee provided by any Obligor in connection therewith would not
constitute Permitted Debt, such assigning Lender shall, or shall cause its
Affiliate to, terminate such guarantee.


 


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 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.


 


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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.


 


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


 


55

















 


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 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 Effective
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
Guaranteed 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 Guaranteed Obligations, but not a limited guarantee
of the Guaranteed Obligations, it shall grant a limited guarantee of the
Guaranteed 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
Guaranteed Obligations, but not a limited guarantee of the Guaranteed
Obligations, it shall grant a limited


 


56

















 


guarantee of the Guaranteed 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 Guaranteed 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 Effective 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 Guaranteed Obligations
(or, to the extent required by Section 8.1.2, a limited guarantee of the
Guaranteed 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 Guaranteed Obligations which, it is agreed by the Lenders among
themselves, shall rank pari passu with
each other.


 


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.


 


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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.


 


9.            CONDITIONS PRECEDENT


 


9.1           Conditions
to Effectiveness


 


The amendments to the Existing Credit Agreement set out herein shall
not become effective until the date on which each of the following conditions
is satisfied (or waived in accordance with Section 9.3). 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             Guarantees. The
Guarantees granted under or in connection with the Existing Credit Agreement
shall continue to guarantee all present and future Guaranteed Obligations.


 


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 Effective 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 Effective Date in
respect of the fiscal quarter of the Borrower immediately preceding the
Effective Date which


 


58

















 


demonstrates compliance with the financial covenants
set out in Section 11 as of the end of the March 31, 2009 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 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 March 31, 2009;


 


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


 


9.1.7.3             as of the
Effective 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 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


 


59

















 


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.


 


9.2           Conditions Precedent to each Advance


 


The obligation of the Lenders to make any 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


 


60

















 


under Section 14.10 after the Effective Date, it is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, amalgamation or organization.


 


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.


 


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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 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
Effective 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 Effective 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


 


62

















 


disclosed in writing to the Agent, not incurred any Debt which is not
disclosed in or reflected in such financial statements, 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 Effective 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 Effective
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 Effective 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


 


63

















 


Lien or charge under any Applicable Laws of any jurisdiction 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 Guaranteed
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


 


64

















 


owned or controlled by it, either past or present,
of any Hazardous 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 Effective Date, the Goldex Mine, the Lapa Mine, the LaRonde
Mine and the Meadowbank Mine are each owned by the Borrower. As of the
Effective 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 Effective 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 Effective 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        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.


 


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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 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:


 


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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 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 19.4 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.


 


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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, 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.


 


71

















 


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 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.


 


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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:


 


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;


 


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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 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.


 


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14.9         Subordinated
Debt


 


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


 


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


 


75

















 


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


 


(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


 


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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 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


 


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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 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


 


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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 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 19.15; 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.


 


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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 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


 


As between the Agent and 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 in accordance with the terms of this
Agreement,  without in any way


 


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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.


 


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


 


81

















 


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 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.


 


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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 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.


 


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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 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


 


84

















 


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.


 


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 the Prior 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


 


85

















 


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 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.


 


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16.10       Non-Payment by Lenders


 


If any Lender shall fail to make any payment required to be made by it
hereunder to the Agent, then the Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts
thereafter received by the Agent for the account of such Lender and for the
benefit of the Agent to satisfy such Lender’s obligations hereunder until all
such unsatisfied obligations are fully paid, and/or (ii) hold any such
amounts in a segregated account for, and application to, any future funding
obligations of such Lender hereunder; in the case of each of (i) and (ii) above,
in any order as determined by the Agent in its discretion.


 


16.11       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.


 


16.12       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.


 


16.13       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 16.14 or 16.15, 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.


 


16.14       Decisions, Amendments and
Waivers of the Lenders


 


Subject to the provisions of Section 16.15, 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.


 


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Notwithstanding any other provision hereof, no Defaulting Lender shall
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.


 


16.15       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 15.6, Section 16.14
or this Section 16.15 shall authorize (a) any extension of the date
for, or alteration in the amount, currency or mode of calculation or
computation of any payment of principal or interest, fees or other amounts,
with the effect, in the case of the alteration in the amount or mode of
calculation or computation or any payment of principal or interest, fees or
other amounts, that any such principal, interest, fees or other amounts would
be reduced, (b) any reduction in the interest rate applicable to the
payment of principal, fees or other amounts, (c) any increase in the
Commitment of a Lender, (d) any extension of any Maturity Date, (e) any
change in the terms of this Article 16, (f) any change in the manner
of making decisions among the Lenders, including the definition of Majority
Lenders, (g) 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, (h) the
release, in whole or in part, of any of the Loan Documents or of any of the
Guarantees, (i) any change in or any waiver of the conditions precedent
provided for in Section 9.1 or (j) any amendment to this Section 16.15.


 


16.16       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.


 


16.17       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.


 


16.18       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


 


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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.


 


16.19       Resignation of Agent


 


16.19.1         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.


 


16.19.2         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
16.19.1, 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 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 16.19.1.


 


16.19.3         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


 


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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 16.19 and of Section 19.15 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 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


 


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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:


 


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


 


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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 19.15) 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 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 19.15 with respect to facts and
circumstances occurring prior to the effective date of such Assignment. For
greater certainty, subject to the second last sentence of Section 19.15,
no Lender that is a Defaulting Lender shall be released from any obligation in
respect of damages arising in connection with it being or becoming a Defaulting
Lender. 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


 


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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.


 


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


 


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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 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


 


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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 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 16.15, 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.


 


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19.3         Lender Replacement


 


19.3.1           The Borrower
may, at any time, by written request to the Agent (each, a “Unanimous
Lender Request”), request an amendment or waiver that requires the
prior written consent of each Lender pursuant to Section 16.15. A copy of
the Unanimous Lender Request shall be provided by the Agent to each Lender.
Each Lender may, in its sole discretion, by written notice to the Agent (the “Unanimous Lender Response Notice”), within ten Business
Days of the Agent’s receipt of the Unanimous Lender Request (the “Unanimous Lender Response Period”), approve or decline the
Unanimous Lender Request. If any Lender does not provide a Unanimous Lender
Response Notice within the Unanimous Lender Response Period, such Lender shall
be deemed to have declined the Unanimous Lender Request.


 


19.3.2           On or before
the second Business Day after the Unanimous Lender Response Period, the Agent
shall give written notice (the “Accepting Lender Notice”)
to the Borrower and each Lender, identifying each Lender that approved the
Unanimous Lender Request within the Unanimous Lender Response Period (the “Approving Lenders”) and each Lender that declined or was deemed
to have declined the Unanimous Lender Request (the “Declining
Lenders”) and their respective Commitments, and if Lenders with
Commitments that in the aggregate are greater than 30% of the aggregate
Commitments of all Lenders do not approve the Unanimous Lender Request, the
notice shall state that the Unanimous Lender Request has been declined. In such
case, the Unanimous Lender Request will be declined.


 


19.3.3           If the
aggregate Commitments of the Approving Lenders are equal to or greater than 70%
but less than 100% of the aggregate Commitments of all Lenders, the Borrower
may, at any time on or before the tenth Business Day following the receipt of
the Accepting Lender Notice, by written request to the Agent (each, an “Acquisition Request Notice”), a copy which shall be provided by
the Agent to each Lender within one Business Day of the Agent receiving same,
request that the rights and obligations of the Declining Lenders be assigned in
accordance with this Section 19.3 and the following shall apply:


 


19.3.3.1           Any Approving
Lender may, at its option, acquire all or any portion of the rights and
obligations of the Declining Lenders under the Loan Documents (all of such
rights and obligations being herein called the “Available Amount”) by
giving written notice to the Agent (an “Acquisition
Notice”) of the
portion of the Available Amount which it is prepared to acquire (the “Desired Acquisition Amount”). Such Acquisition Notice shall be
given within six Business Days following the giving of the Acquisition Request


 


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Notice by the Borrower to the Agent (such deadline
being herein called the “Acquisition
Deadline”). If only
one Approving Lender gives an Acquisition Notice to the Agent or if more than
one Approving Lender gives an Acquisition Notice to the Agent but the aggregate
of their Desired Acquisition Amounts is less than or equal to the Available
Amount, then each such Approving Lender shall be entitled to acquire its
Desired Acquisition Amount of the rights and obligations of the Declining
Lenders under the Loan Documents. If more than one Approving Lender gives an
Acquisition Notice to the Agent and the aggregate of the Desired Acquisition
Amounts is greater than the Available Amount, then each such Approving Lender
shall be entitled to acquire a pro rata share
of the rights and obligations of the Declining Lenders under the Loan
Documents, such pro rata share
being determined based on the relative Desired Acquisition Amount of each such
Approving Lender.


 


19.3.3.2           On or before
the second Business Day following the Acquisition Deadline, the Agent shall
give to the Borrower and each Lender a written notice identifying the Available
Amount of each Declining Lender and the portion thereof to be acquired by each
Approving Lender. Each of such acquisitions shall be completed on the date
which is ten Business Days following the Acquisition Deadline, in accordance
with the procedures set out in Section 18.2. If a Declining Lender or an
Affiliate of such Declining Lender is a party to a Derivative Instrument with
an Obligor, upon the completion of the acquisition of such Declining Lender’s
portion of the Available Amount, such Declining Lender shall either (i) terminate
each guarantee provided by any Obligor in connection therewith, in which case,
such assigning Lenders or its applicable Affiliate shall be deemed to be an
Other Derivative Counterparty or (ii) assign, at a price determined in a
reasonable manner from market quotations in accordance with customary market
practices, all Derivative Instruments it or they hold with each Obligor to the
applicable assignee or to another Lender or its Affiliate or to an Other
Derivative Counterparty, and if, upon such assignment, any guarantee provided
by any Obligor in connection therewith would not constitute Permitted Debt,
such assigning Lender shall, or shall cause its Affiliate to, terminate such
guarantee.


 


19.3.3.3           If the
Available Amount is not completely acquired by the Approving Lenders, the
Borrower may locate other Persons (“Substitute Lenders”) who are
approved by the Agent


 


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(subject to Section 18.2.2.2), and who acquire
all or a portion of the balance of the rights and obligations of the Declining
Lenders under the Loan Documents on the date which is ten Business Days
following the Acquisition Deadline, in accordance with the procedures set out
in Section 18.2.


 


19.3.3.4           Any outstanding
credit extended by the Declining Lenders to the Borrower under the Credit Facility
which is not acquired by Approving Lenders or Substitute Lenders under Sections
19.3.3.2 or 19.3.3.3 shall be repaid by the Borrower, and the Commitments of
the Declining Lenders not so acquired shall be cancelled on the date which is
ten Business Days following the Acquisition Deadline and the amount of the
Credit Facilities shall thereupon be reduced by the aggregate of the
Commitments so cancelled, if any. The Borrower shall comply with Section 6.4
in connection with any such prepayment. As concerns any BA Advances that
otherwise would be subject to prepayment pursuant to this Section 19.3.3.4,
the Borrower shall forthwith pay to the Agent an amount equal to the aggregate
of the face amount of such BA Advances, such amount to be held by the Agent against
any amount owing by the Borrower to such Declining Lenders in respect of such
BA Advances. Any such amount paid to the Agent shall be held on deposit by the
Agent until the maturity date of such BA Advances, at which time it shall be
applied against the indebtedness of the Borrower to such Declining Lenders
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.


 


19.3.3.5           For greater
certainty, once there are no Declining Lenders that hold any Commitments, the
relevant Unanimous Lender Request shall be deemed to have been approved.


 


19.3.3.6           The Borrower
may at any time prior to the commencement of the transactions contemplated by
Sections 19.3.3.2, 19.3.3.3 or 19.3.3.4, by written notice to the Agent (a copy
of which shall be promptly provided to each Lender), terminate and cancel any
assignment or repayment contemplated thereby, whereupon the Acquisition Request
Notice shall be deemed to have been withdrawn and Section 19.3.3 shall not
apply in respect of the Unanimous Lender Request.


 


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19.4         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.


 


19.5         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.


 


19.6         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 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.


 


19.7         Benefit of Agreement


 


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


 


19.8         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


 


99

















 


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.


 


19.9         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.


 


19.10       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.


 


19.11       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.


 


19.12       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 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.


 


19.13       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.


 


100

















 


19.14       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.


 


19.15       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, any investigation, litigation or proceeding
(or 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 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.


 


101

















 


19.16       Confidentiality


 


19.16.1         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.


 


19.16.2         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 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


 


102

















 


Information as such person normally makes available
in the course of its business of assigning identification numbers.


 


19.16.3         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.


 


19.16.4         Each Obligor
agrees that Export Development Canada may disclose Information (i) to the
Minister of Finance, the Treasury Board or the Auditor General, (ii) as
required by the disclosure policy of Export Development Canada or (iii) under
the international commitments of the Government of Canada or Export Development
Canada.


 


19.17       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.


 


19.18       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 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.


 


103

















 


19.19       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 19.18. 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.


 


19.20       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.


 


19.21       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.


 


19.22       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.


 


19.23       Formal Date


 


For the purposes of convenience, this Agreement may be referred to as
bearing the formal date of June 15, 2009, notwithstanding its actual date
of signature.


 


104

















 


19.24       Swedish Companies Act


 


Notwithstanding anything to the contrary herein, the obligations and
liabilities of any Obligor incorporated under the laws of Sweden (a “Swedish Obligor”) under this Agreement and the scope of this Agreement shall be
limited if (and only if) required by an application of the provisions of the
Swedish Companies Act (in Swedish: Aktiebolagslagen
(2005:551))  regulating prohibited loans and
guarantees and the distribution of assets, and it is understood that the
obligations of the Swedish Obligor for its obligations and liabilities
hereunder shall apply only to the extent permitted by the above-mentioned
provisions as applied, together with other applicable provisions of the said
Companies Act, and the Agreement shall be limited in accordance with this Section 19.24.


 


[SIGNATURE
PAGES FOLLOW]


 


105

















 


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/ Stella
  Luna

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Stella
  Luna

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  



 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-1

















 


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/ Ian Stephenson

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Ian Stephenson

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate Director

  



 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-2

















 


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/ Liza Straker

  
	
  M5K 1A2

  	
   

  	
   

  	
  Name:

  	
  Liza Straker

  
	
   

  	
   

  	
   

  	
  Title:

  	
  VP, Credit Management

  
	
  Attention: Rohan Appadurai

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile: (416) 944-5164

  	
   

  	
  By:

  	
  /s/ Keith McQueen

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Keith McQueen

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-3














 


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

  	
   

  	
  By:

  	
  /s/ R. Wright

  
	
  4th Floor

  	
   

  	
   

  	
  Name:

  	
  R. Wright

  
	
  Toronto, Ontario

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
  M5X 1A1

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Robert Wright

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Facsimile:  (416) 359-7796

  	
   

  	
   

  	
  Title:

  	
   

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-4

















 


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


 


	
  Address
  For Notice

  	
   

  	
  CANADIAN
  IMPERIAL BANK OF COMMERCE

  
	
   

  	
   

  	
   

  
	
  161 Bay Street

  	
   

  	
   

  
	
  8th Floor

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ Scott Curtis

  
	
  M5J 2S8

  	
   

  	
   

  	
  Name:

  	
  Scott Curtis

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Peter Rawlins / Robert Riverso

  	
   

  	
  By:

  	
  /s/ Peter Rawlins

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Peter Rawlins

  
	
  Facsimile:  (416) 594-8347

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-5

















 


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


 


	
  Address
  For Notice

  	
   

  	
  EXPORT
  DEVELOPMENT CANADA

  
	
   

  	
   

  	
   

  
	
  151 O’Connor Street

  	
   

  	
   

  
	
  Ottawa, Ontario

  	
   

  	
  By:

  	
  /s/ Joanne Tognarelli

  
	
  K1A 1K3

  	
   

  	
   

  	
  Name:

  	
  Joanne Tognarelli

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Financing Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Matthew Devine

  	
   

  	
  By:

  	
  /s/ Christiane de Billy

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Christiane de Billy

  
	
  Facsimile:  (613) 598-3186

  	
   

  	
   

  	
  Title:

  	
  Financing Manager

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-6

















 


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

  	
   

  	
  By:

  	
  /s/ Greg Caione

  
	
  New York, New York

  	
   

  	
   

  	
  Name:

  	
  Greg Caione

  
	
  U.S.A. 10022

  	
   

  	
   

  	
  Title:

  	
  Head of Natural Resources - Americas

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Greg Caione

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Facsimile:  (212) 336-7722

  	
   

  	
   

  	
  Title:

  	
   

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-7

















 


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 Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-8

















 


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


 


	
  Address
  For Notice

  	
   

  	
  MACQUARIE
  BANK LIMITED

  
	
   

  	
   

  	
   

  
	
  1 Martin Place

  	
   

  	
   

  
	
  Sydney, New South Wales
  2000

  	
   

  	
  By:

  	
  /s/ Carmel Ferguson

  
	
  Australia

  	
   

  	
   

  	
  Name:

  	
  Carmel Ferguson

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive Director

  
	
  Attention:  Executive
  Director, Legal Risk

  	
   

  	
   

  	
   

  	
   

  
	
  Management, Treasury and Commodities Group

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  +612 8232 4540

  	
   

  	
  By:

  	
  /s/ Robert McRobbie

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Robert McRobbie

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Division Director

  
	
   

  	
   

  	
   

  	
   

  	
  Legal Risk Management

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-9

















 


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


 


	
  Address For Notice

  	
   

  	
  NATIONAL  BANK
  OF CANADA

  
	
   

  	
   

  	
   

  
	
  Credit Capital Markets

  	
   

  	
   

  
	
  1155 Metcalfe Street

  	
   

  	
  By:

  	
  /s/ Roch Ledoux

  
	
  5th floor

  	
   

  	
   

  	
  Name:

  	
  Roch Ledoux

  
	
  Montreal, Quebec 

  	
   

  	
   

  	
  Title:

  	
  Directeur - Director

  
	
  H3B 4S9

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Roch Ledoux

  	
   

  	
  By:

  	
  /s/ Alain Aubin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Alain Aubin

  
	
  Facsimile:  (514) 390-7860

  	
   

  	
   

  	
  Title:

  	
  Directeur - Director

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-10

















 


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

  	
   

  	
  By:

  	
  /s/ Colin Hall

  
	
  London, England

  	
   

  	
   

  	
  Name:

  	
  Colin Hall

  
	
  E14 4BB

  	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Colin Hall

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  020 7773 1840

  	
   

  	
   

  	
   

  	
   

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-11

















 


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


 


	
  Address
  For Notice

  	
   

  	
  BANK OF
  AMERICA, N.A., CANADA BRANCH

  
	
   

  	
   

  	
   

  
	
  200 Front Street West

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ Medina Sales de Andrade

  
	
  M5V 3L2

  	
   

  	
   

  	
  Name:

  	
  Medina Sales de Andrade

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: 

  	
  Scott T. Hitchens / Medina

  	
   

  	
  By:

  	
   

  
	
   

  	
  Sales de Andrade

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Facsimile:

  	
  (980) 683-6306 /

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
  (416) 349-4283

  	
   

  	
   

  	
   

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-12

















 


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


 


	
  Address
  For Notice

  	
   

  	
  CREDIT
  SUISSE, TORONTO BRANCH

  
	
   

  	
   

  	
   

  
	
  1 First Canadian Place, Suite 2900

  	
   

  	
   

  
	
  P.O. Box 301

  	
   

  	
  By:

  	
  /s/ Alain Daoust

  
	
  Toronto, Ontario

  	
   

  	
   

  	
  Name:

  	
  Alain Daoust

  
	
  M5X 1C9

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention: Alain Daoust

  	
   

  	
  By:

  	
  /s/ Steve W. Fuh

  
	
  Facsimile:

  	
  (416) 352-4576 

  	
   

  	
   

  	
  Name:

  	
  Steve W. Fuh

  
	
  PC Fax:

  	
  (416) 352-0927

  	
   

  	
   

  	
  Title:

  	
  Vice-President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  cc:

  	
  Nicholas Lam, Loan
  Operations

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  (416) 352-4688

  	
   

  	
   

  	
   

  	
   

  
							



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-13














 


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


 


	
  Address
  For Notice

  	
   

  	
  SOCIÉTÉ GÉNÉRALE
  (CANADA BRANCH)

  
	
   

  	
   

  	
   

  
	
  1501 McGill College Avenue

  	
   

  	
   

  
	
  Suite 1800

  	
   

  	
   

  
	
  Montréal, Quebec

  	
   

  	
  By:

  	
  /s/ Michael C. Manion

  
	
  H3A 3M8

  	
   

  	
   

  	
  Name:

  	
  Michael C. Manion

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
  Attention: Mariette Jean

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile: (514) 841-6250

  	
   

  	
  By:

  	
  /s/ Ernesto Rambaldini

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Ernesto Rambaldini

  
	
  With a copy to:

  	
   

  	
   

  	
  Title:

  	
  Vice-President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  100
  Yonge Street, Suite 1002

  	
   

  	
   

  	
   

  	
   

  
	
  Toronto,
  Ontario

  	
   

  	
   

  	
   

  	
   

  
	
  M5C
  2W1

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Michael Manion

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 364-1879

  	
   

  	
   

  	
   

  	
   

  



 


 


[signature
page for Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-14

















 


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 Amended and Restated Credit Agreement relating to The Bank of
Nova

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


 


S-15

















 


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:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  David
  Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  
							



 


 


[signature page for Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-16

















 


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 Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-17

















 


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
  

  	
   

  	
  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 Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-18

















 


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
  

  	
   

  	
  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 Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-19

















 


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
  

  	
   

  	
  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 Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-20

















 


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
  

  	
   

  	
  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 Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-21

















 


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
  

  	
   

  	
  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 Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-22

















 


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
  

  	
   

  	
  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 Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-23

















 


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
  

  	
   

  	
  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 Amended and Restated Credit
Agreement relating to The Bank of Nova

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


 


S-24














 


EXHIBIT A

COMMITMENTS


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  
	
  The Bank of Nova Scotia

  	
   

  	
  US
  $

  	
  70,000,000

  	
   

  
	
  The Toronto-Dominion Bank

  	
   

  	
  US
  $

  	
  70,000,000

  	
   

  
	
  Bank of Montreal

  	
   

  	
  US
  $

  	
  60,000,000

  	
   

  
	
  Canadian Imperial Bank of Commerce

  	
   

  	
  US
  $

  	
  60,000,000

  	
   

  
	
  Export Development Canada

  	
   

  	
  US
  $

  	
  60,000,000

  	
   

  
	
  Commonwealth Bank of Australia

  	
   

  	
  US
  $

  	
  45,000,000

  	
   

  
	
  Royal Bank of Canada

  	
   

  	
  US
  $

  	
  45,000,000

  	
   

  
	
  Macquarie Bank Limited

  	
   

  	
  US
  $

  	
  40,000,000

  	
   

  
	
  National Bank of Canada

  	
   

  	
  US
  $

  	
  35,000,000

  	
   

  
	
  Barclays Bank plc

  	
   

  	
  US
  $

  	
  30,000,000

  	
   

  
	
  Bank of America, N.A., Canada Branch

  	
   

  	
  US
  $

  	
  30,000,000

  	
   

  
	
  Credit Suisse, Toronto Branch

  	
   

  	
  US
  $

  	
  30,000,000

  	
   

  
	
  Société Générale (Canada Branch)

  	
   

  	
  US
  $

  	
  25,000,000

  	
   

  



 


 

















 


EXHIBIT B

ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date
set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and
[Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended,
the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by the Assignee. The Standard Terms and Conditions set
forth in Annex 1 attached hereto are hereby agreed to and incorporated herein
by reference and made a part of this Assignment and Assumption as if set forth
herein in full.


 


For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Agent as contemplated below (a) all of the Assignor’s rights and
obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective facilities
identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities), and (b) to
the extent permitted to be assigned under Applicable Law, all claims, suits,
causes of action and any other right of the Assignor (in its capacity as a
Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan-transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (a) above (the rights and obligations sold and
assigned pursuant to clauses (a) and (b) above being referred to
herein collectively as, the “Assigned
Interest”). Such sale
and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.


 


	
  Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Assignee:

  	
   

  	
   

  
	
   

  	
  [and
  is an Affiliate/Approved Fund of [identify Lender](1) ]

  
	
   

  	
   

  	
   

  
	
  Borrower(s):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Agent:

  	
   

  	
   ,

  
	
   

  	
  as
  the administrative agent under the Credit Agreement

  



 






(1)                                  Select as applicable.


 

















 




	
  Credit
  Agreement:

  	
   

  	
  [The
  [amount] Credit Agreement dated as of                
  among [name of Borrower], the Lenders parties thereto, [name of
  administrative agent], as Agent, and the other agents parties thereto]

  






 


Assigned
Interest:


 


	
  Aggregate Amount of

  Commitment/Loans

  for all Lenders(2)

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned

  	
   

  	
  Percentage Assigned of

  Commitment/Loans(3)

  	
   

  	
  CUSIP Number

  	
   

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


[Trade Date:                                                          ](4)


 








	
  (2)

  	
  Amount to be adjusted
  by the counterparties to take into account any payments or prepayments made
  between the Trade Date and the Effective Date.

  
	
   

  	
   

  
	
  (3)

  	
  Set forth, to at least
  9 decimals, as a percentage of the Commitment/Loans of all Lenders
  thereunder.

  
	
   

  	
   

  
	
  (4)

  	
  To be completed if the
  Assignor and the Assignee intend that the minimum assignment amount is to be
  determined as of the Trade Date.

  






 


2

















 


Effective Date:                ,
20      [TO BE INSERTED BY AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this Assignment and Assumption are hereby agreed
to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


	
  [Consented to and](5) Accepted:

  	
   

  
	
   

  	
   

  
	
  [NAME OF AGENT], as Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Consented to:](6)

  	
   

  
	
   

  	
   

  
	
  [NAME OF RELEVANT PARTY]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 








	
  (5)

  	
  To be added only if the
  consent of the Agent is required by the terms of the Credit Agreement.

  
	
   

  	
   

  
	
  (6)

  	
  To be added only if the
  consent of the Borrower and/or other parties (e.g. Swingline Lender, L/C
  Issuer) is required by the terms of the Credit Agreement.

  






 


3

















 


ANNEX 1 to Assignment and Assumption


 


[                                      ](1)


 


STANDARD
TERMS AND CONDITIONS FOR


ASSIGNMENT
AND ASSUMPTION


 


Representations
and Warranties.


 


Assignor. The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim, and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Loan Document(2), (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document, or (iv) the performance or observance by the Borrower, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee under
the Credit Agreement (subject to receipt of such consents as may be required
under the Credit Agreement), (iii) from and after the Effective Date, it
shall be bound by the provisions of the Credit Agreement as a Lender thereunder
and, to the extent of the Assigned Interest, shall have the obligations of a
Lender thereunder, (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section           thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Agent or any other Lender, and (v) if it is a Foreign Lender(3),
attached to the Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan


 








	
  (1)

  	
  Describe Credit
  Agreement at option of Agent.

  
	
   

  	
   

  
	
  (2)

  	
  The term “Loan
  Document” should be conformed to the term used in the Credit Agreement.

  
	
   

  	
   

  
	
  (3)

  	
  The concept of “Foreign
  Lender” should be conformed to the section in the Credit Agreement governing
  withholding taxes and gross-up.

  






 

















 


Documents,
and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.


 


Payments. From and after the Effective Date, the Agent shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to, on or after the Effective Date. The Assignor and
the Assignee shall make all appropriate adjustments in payments by the Agent
for periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.


 


General Provisions. This Assignment and
Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and permitted assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a
signature page of this Assignment and Assumption by telecopy or by sending
a scanned copy by electronic mail shall be effective as delivery of a manually
executed counterpart of this Assignment and Assumption. This Assignment and
Assumption shall be governed by, and construed in accordance with, the law
governing the Credit Agreement.


 


2

















 


EXHIBIT C

LOAN MARKET DATA TEMPLATE


 


Recommended Data Fields – At Close


The
items highlighted in bold are those that Loan Pricing Corporation (LPC) deem
essential. The remaining items are those that LPC has seen become more
prominent over time as transparency has increased in the U.S. Loan Market.


 




	
  Company
  Level

  	
   

  	
  Deal
  Specific

  	
   

  	
  Facility
  Specific

  
	
  Issuer Name

  	
   

  	
  Currency/Amount

  	
   

  	
  Currency/Amount

  
	
  Location

  	
   

  	
  Date

  	
   

  	
  Type

  
	
  SIC (Cdn)

  	
   

  	
  Purpose

  	
   

  	
  Purpose

  
	
  Identification
  Number(s)

  	
   

  	
  Sponsor

  	
   

  	
  Tenor

  
	
  Revenue

  	
   

  	
  Financial Covenants

  	
   

  	
  Term
  Out Option

  
	
   

  	
   

  	
   

  	
   

  	
  Expiration Date

  
	
   

  	
   

  	
  Target
  Company

  	
   

  	
  Facility Signing Date

  
	
  *Measurement of Risk

  	
   

  	
  Assignment Language

  	
   

  	
  Pricing

  
	
  S&P Sr. Debt

  	
   

  	
  Law
  Firms

  	
   

  	
  Base Rate(s)/Spread(s)/BA/LIBOR

  
	
  S&P Issuer

  	
   

  	
  MAC
  Clause

  	
   

  	
  Initial Pricing Level

  
	
  Moody’s Sr. Debt

  	
   

  	
  Springing
  lien

  	
   

  	
  Pricing Grid (tied to, levels)

  
	
  Moody’s Issuer

  	
   

  	
  Cash
  Dominion

  	
   

  	
  Grid Effective Date

  
	
  Fitch Sr. Debt

  	
   

  	
  Mandatory
  Prepays

  	
   

  	
  Fees

  
	
  Fitch Issuer

  	
   

  	
  Restrct’d
  Payments (Neg Covs)

  	
   

  	
   

  
	
  S&P Implied

  	
   

  	
   

  	
   

  	
   

  
	
  (internal assessment)

  	
   

  	
  Other
  Restrictions

  	
   

  	
  Commitment Fee

  
	
  DBRS

  	
   

  	
   

  	
   

  	
   

  
	
  Other
  Ratings

  	
   

  	
   

  	
   

  	
   

  
	
  *Industry
  Classification

  	
   

  	
   

  	
   

  	
   

  
	
  Moody’s Industry

  	
   

  	
   

  	
   

  	
   

  
	
  S&P Industry

  	
   

  	
   

  	
   

  	
   

  
	
  Parent

  	
   

  	
   

  	
   

  	
  Prepayment
  Fee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Financial
  Ratios

  	
   

  	
   

  	
   

  	
  Other
  Fees to Market

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Security

  
	
   

  	
   

  	
   

  	
   

  	
  Secured/Unsecured

  
	
   

  	
   

  	
   

  	
   

  	
  Collateral and Seniority of Claim

  
	
   

  	
   

  	
   

  	
   

  	
  Collateral Value

  
	
   

  	
   

  	
   

  	
   

  	
  Guarantors

  
	
   

  	
   

  	
   

  	
   

  	
  Lenders Names/Titles

  
	
   

  	
   

  	
   

  	
   

  	
  Lender Commitment ($)

  
	
   

  	
   

  	
   

  	
   

  	
  Commited/Uncommited

  
	
   

  	
   

  	
   

  	
   

  	
  Distribution
  method

  
	
   

  	
   

  	
   

  	
   

  	
  Amortization Schedule

  
	
   

  	
   

  	
   

  	
   

  	
  Borrowing
  Base/Advance Rates

  
	
   

  	
   

  	
   

  	
   

  	
  New
  Money Amount

  
	
   

  	
   

  	
   

  	
   

  	
  Country of Syndication

  
	
   

  	
   

  	
   

  	
   

  	
  Facility
  Rating (Loss given default)

  
	
   

  	
   

  	
   

  	
   

  	
  S&P Bank Loan

  
	
   

  	
   

  	
   

  	
   

  	
  Moody’s Bank Loan

  
	
   

  	
   

  	
   

  	
   

  	
  Fitch Bank Loan

  
	
   

  	
   

  	
   

  	
   

  	
  DBRS

  
	
   

  	
   

  	
   

  	
   

  	
  Other Ratings

  






 






*
These items would be considered useful to capture from an analytical
perspective


 

















 


EXHIBIT D 


NOTICE OF
BORROWING AND CERTIFICATE


[See
Sections 3.1, 3.2 and 5.1]


 


TO:                                             The Bank of
Nova Scotia


Global Wholesale Services –


Loan Operations department 


720 King Street West 


Third Floor 


Toronto, Ontario 


M5V 2T3


 


Reference is made to the
amended and restated credit agreement dated as of June 15 2009 between
Agnico-Eagle Mines Limited, as borrower, the guarantors from time to time party
thereto, The Bank of Nova Scotia, as administrative agent and joint lead
arranger, The Toronto-Dominion Bank, as joint lead arranger, and the Lenders
from time to time party thereto, as amended, supplemented, restated or replaced
from time to time (the “Credit Agreement”). All terms used in this certificate
and that are defined in the Credit Agreement will have the meanings defined in
the Credit Agreement.


 


A.                                   Request for Advance


 


Notice is hereby given
pursuant to the Credit Agreement that the undersigned hereby irrevocably
requests as follows:


 


1.                                      that an Advance be made
under the Credit Facility;


 


2.                                      the aggregate
principal amount of the Advance shall be [choose
one] [Cdn. · dollars (C$·)/US · dollars (US$·)]; and


 


3.                                      the Drawdown Date shall be                       .


 


4.                                      the Advance shall be in the
form of [check one or more and complete
details]:


 


	
  Prime
  Rate Advance

  	
   

  	
   

  	
   

  	
  (
  )

  
	
  Amount

  	
   

  	
  C$

  	
   

  	
   

  
	
  Banker’s
  Acceptances

  	
   

  	
   

  	
   

  	
  (
  )

  
	
  Selected Amount:

  	
   

  	
  C$

  	
   

  	
   

  
	
  Designated Period

  	
   

  	
   

  	
   

  	
   

  
	
  US
  Base Rate Advance

  	
   

  	
   

  	
   

  	
  (
  )

  
	
  Amount

  	
   

  	
  US$

  	
   

  	
   

  
	
  Libor
  Advance

  	
   

  	
   

  	
   

  	
  (
  )

  
	
  Selected Amount

  	
   

  	
  US$

  	
   

  	
   

  
	
  Designated Period

  	
   

  	
   

  	
   

  	
   

  



 


5.                                     the proceeds of the Advance
shall be deposited in [specify designated
account].


 

















 


The
undersigned hereby confirms as follows:


 


(a)                                the
representations and warranties contained in Article 10 of the Credit
Agreement, other than those expressly stated to be made as of a specific date
or otherwise expressly modified in accordance with Section 10.17 of the
Credit Agreement, are true and correct in all material respects on and as of
the date hereof with the same force and effect as if such representations and
warranties had been made on and as of the date hereof;


 


(b)                               no Default or
Event of Default has occurred and is continuing on the date hereof or will
result from the Advance(s) requested herein; and


 


(c)                                the undersigned
will immediately notify you if it becomes aware of the occurrence of any event
which would mean that the statements in the immediately preceding paragraphs (a) and
(b) would not be true if made on the Drawdown Date.


 


B.                                   Notice of Conversion or Rollover


 


Notice is hereby given
pursuant to the Credit Agreement that the undersigned hereby irrevocably
requests as follows:


 


1.                                      that                                 [Note: describe outstanding Advance] be
converted or rolled over into or extended as [check
one or more and complete details]:


 


	
  Banker’s
  Acceptances

  	
   

  	
   

  	
   

  	
  (  )

  
	
  Selected Amount:

  	
   

  	
  C$

  	
   

  	
   

  
	
  Designated Period

  	
   

  	
   

  	
   

  	
   

  
	
  Libor
  Advance

  	
   

  	
   

  	
   

  	
  (  )

  
	
  Selected Amount

  	
   

  	
  US$

  	
   

  	
   

  
	
  Designated Period

  	
   

  	
   

  	
   

  	
   

  



 


2.                                     the date of the conversion,
rollover or extension shall be                      .


 


C.                                   Notice of Prepayment


 


Pursuant to Article 2.6.1
of the Credit Agreement, the undersigned hereby irrevocably notifies you of the
following:


 


(a)                                that a
prepayment will be made under the Credit Facility;


 


(b)                               the prepayment
represents the following [check one or
more]:


 


prepayment in Prime Rate Advances under the
Credit Facility                                                                                                                                           (  )


prepayment in US Base Rate Advances under the
Credit Facility                                                                                                                           (   )


prepayment in Libor Advances under the Credit
Facility                                                                                                                                                                        (   )


 


(c)                                   the prepayment date shall be                      .


 


2

















 


(d)                                the Advance to
be paid shall be in the form of [check one
or more and complete details]:


 


	
  Prime Rate Advance

  	
   

  	
   

  	
   

  	
  (   )

  
	
  Amount

  	
   

  	
  C$

  	
   

  	
   

  
	
  US Base Rate Advance

  	
   

  	
   

  	
   

  	
  (   )

  
	
  Amount

  	
   

  	
  US$

  	
   

  	
   

  
	
  Libor Advance

  	
   

  	
   

  	
   

  	
  (  )

  
	
  Amount

  	
   

  	
  US$

  	
   

  	
   

  
	
  Maturity Date

  	
   

  	
   

  	
   

  	
   

  



 


D.       Notice of
Cancellation


 


Pursuant to Article 2.6.2 of the Credit
Agreement, the undersigned hereby irrevocably notifies you of the following
cancellation of undrawn portions of the Credit Facility:


 


(a)                                 the amount of the Credit
Facility to be cancelled is                                   ;
and


 


(b)                                the cancellation date shall
be                             .


 


                         


 


	
  DATED

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGNICO-EAGLE MINES LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


3














 


EXHIBIT E


COMPLIANCE
CERTIFICATE


 


[See Section 8.2, Article 11
and Sections 13.1.3, 13.1.4, 13.1., 13.1.6, 13.1.7 and 13.2.2]


 


TO:                                                                                THE BANK OF
NOVA SCOTIA, as Administrative Agent


 


AND TO:                                                 THE LENDERS (as
defined in the Credit Agreement referred to below)


 


Reference is made to the
amended and restated credit agreement dated as of June 15, 2009 between
Agnico-Eagle Mines Limited, as borrower, the guarantors from time to time party
thereto, The Bank of Nova Scotia, as administrative agent and joint lead arranger,
The Toronto-Dominion Bank, as joint lead arranger, and the Lenders from time to
time party thereto, as amended, supplemented, restated or replaced from time to
time (the “Credit Agreement”). All terms used in this certificate
that are defined in the Credit Agreement have the meanings defined in the
Credit Agreement.


 


The undersigned hereby certifies that:


 


(a)                               No Default or
Event of Default has occurred and is continuing on the date hereof [or if a Default or Event of Default has occurred and
is continuing on the date hereof, a detailed description of the same and the
steps the Borrower is taking or proposes to take to cure the same are described
on the schedule dealing with the same which is attached hereto].


 


(b)                              The undersigned
hereby certifies that, as of the end of its most recently completed fiscal
quarter, which ended on
                                 :


 


(i)        the Total Net Debt to EBITDA Ratio was                                      :
1; and


 


(ii)      the Tangible Net Worth for such fiscal
quarter was $                        .


 


(c)                                Set forth on
Schedule A hereto are the calculations of the financial covenants referred to
in clause (b) above.


 


(d)                               Attached hereto
is a report setting forth each Derivative Instrument to which the Borrower or
any other Obligor is a party, together with the counterparty thereto and the
Obligor Hedging Exposure thereunder.


 


(e)                                Attached hereto
is an operating report on the mines owned and controlled by the Borrower and
its Subsidiaries (being the “Chief Operating Officer’s Quarterly Report to the
Board of Directors”).


 


(f)                                  Attached hereto
is a copy of the Borrower’s mineral reserve statements.   [Note:
only required to be delivered with the Borrower’s annual financial statements.]


 

















 


(g)                               Attached hereto
is a copy of the Borrower’s annual life of mine plans. [Note: only required to be delivered as soon as
practicable and in any event within 270 days after the end of each fiscal year
of the Borrower.]


 


(h)                               The following Persons, which have not
previously been reported to the Agent pursuant to Section 8.2 of the
Credit Agreement, have become Material Subsidiaries since the Effective
Date:                                      .


 


(i)          The First
Percentage is                             and
the Second Percentage is                                   .


Attached hereto is the Borrower’s calculation of the
First Percentage and the Second Percentage.


 


	
  DATED

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGNICO-EAGLE MINES LIMITED

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2

















 


EXHIBIT F


ADDITIONAL
GUARANTOR AGREEMENT


[See Section 8.2]


 


THIS AGREEMENT supplements the amended and restated
credit agreement dated as of June 15, 2009 between Agnico-Eagle Mines
Limited, as borrower, the guarantors from time to time party thereto, The Bank
of Nova Scotia, as administrative agent and joint lead arranger, The
Toronto-Dominion Bank, as joint lead arranger, and the Lenders from time to
time party thereto, as amended, supplemented, restated or replaced from time to
time (the “Credit Agreement”).


 


RECITALS:


 


A.                                  All terms used in this
Agreement that are defined in the Credit Agreement have the meanings defined in
the Credit Agreement.


 


B.                                    The Credit Agreement
contemplates that further Subsidiaries of the Borrower who qualify as a
Material Subsidiary shall become Guarantors in certain circumstances.


 


C.                                    [·] (the “New Material Subsidiary”) is required by the Credit Agreement
to become a Guarantor.


 


D.                                   The New Material Subsidiary
has delivered the documents listed on Schedule A to this Agreement, an opinion
of its counsel and other resolutions and ancillary documents required by the
Credit Agreement.


 


THEREFORE, for value received, and intending to be legally bound by
this Agreement, the parties agree as follows:


 


1.                                     The New Material Subsidiary
hereby acknowledges and agrees to the terms of the Credit Agreement and agrees
to be bound by all obligations of a Guarantor, and therefore an Obligor, under
the Credit Agreement as if it had been an original signatory thereto. [Except as set out on Schedule B hereto,] [t/T]he  New
Material Subsidiary represents and warrants to the Agent and the Lenders that
each of the representations and warranties in Article 10 is true and
correct in relation to it.


 

















 


2.                                     The Agent, on
behalf of the Lenders, acknowledges that the New Material Subsidiary is a
Guarantor, and therefore an Obligor, as of the date of this Agreement.


 


IN WITNESS OF WHICH, the undersigned have executed
this Agreement as of [·].


 


 


	
   

  	
  THE BANK OF NOVA SCOTIA, as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NEW MATERIAL SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[Note:
Schedule A to be attached]


 


2

















 


SCHEDULE A


MATERIAL
SUBSIDIARIES


 


	
  1641315
  Ontario Inc.

  	
  -

  	
  Ontario

  
	
   

  	
   

  	
   

  
	
  1715495
  Ontario Inc.

  	
  -

  	
  Ontario

  
	
   

  	
   

  	
   

  
	
  Agnico-Eagle
  (Delaware) L.L.C.

  	
  -

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Agnico-Eagle
  (Delaware) II L.L.C.

  	
  -

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Agnico-Eagle
  (Delaware) III L.L.C.

  	
  -

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Agnico-Eagle
  AB

  	
  -

  	
  Sweden

  
	
   

  	
   

  	
   

  
	
  Agnico Eagle México, S.A. de C.V.

  	
  -

  	
  Mexico

  
	
   

  	
   

  	
   

  
	
  Agnico-Eagle
  Sweden AB

  	
  -

  	
  Sweden

  
	
   

  	
   

  	
   

  
	
  Riddharhyttan
  Resources AB

  	
  -

  	
  Sweden

  



 

















 


SCHEDULE B


PERMITTED
LIENS


 


Registrations
Against Agnico-Eagle Mines Limited Under the Personal Property Security Act
(Ontario)


 


	
  Secured
  Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Xerox Canada Ltd.

  33 Bloor St. E., 3rd Floor

  Toronto, ON M4W 3H1

  	
   

  	
  Registration No.
  20061214 1009 1462 9962 (6 years)

  (Ref. File No. 631424124)

  	
   

  	
  Photocopy equipment

  
	
  Xerox Canada Ltd.

  5650 Yonge St.

  North York, ON M2M 4G7

  	
   

  	
  Registration No.
  20040205 1220 1715 3337 (6 years)

  (Ref. File No. 602917443)

  	
   

  	
  Photocopy equipment

  
	
  Caterpillar Financial
  Services Limited

  700 Dorval Drive, Suite 705,

  Oakville, ON L6K 3V3

  	
   

  	
  Registration No.
  20070925 1047 8077 7779 (3 years)

  (Ref. File No. 639359253)

  	
   

  	
  4 Caterpillar motor
  vehicles

  
	
  Xerox Canada Ltd.

  33 Bloor St. E., 3rd Floor

  Toronto, ON M4W 3H1

  	
   

  	
  Registration No.
  20071219 1404 1462 2799 (6 years)

  (Ref. File No. 641510037)

  	
   

  	
  Photocopy equipment

  
	
  Xerox Canada Ltd.

  33 Bloor St. E., 3rd Floor

  Toronto, ON M4W 3H1

  	
   

  	
  Registration No.
  20080306 1405 1462 7757 (6 years)

  (Ref. File No. 643180194)

  	
   

  	
  Photocopy equipment

  
	
  The Bank of Nova Scotia

  20 Queen St West, 4th Floor

  Toronto, ON M5H 3R3

  	
   

  	
  Registration No.
  20090520 1610 1532 8529(4 years)

  (Ref. File No. 653561217)

  	
   

  	
  One Toro 50 Underground
  Haulage Truck s/n T9050444; one LH514 Underground LHD s/n L914D311; and one
  RB50E Raisedrill s/n RB50E-032.

  



 


Registrations
Against Agnico-Eagle Mines Limited Under the British Columbia Personal Property
Registry


 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  HSBC
  Bank Canada

  	
   

  	
  Registered
  September 26, 2007 (expiry September 26, 2010) under Registration
  No. 942660D

  	
   

  	
  1 Orenstein & Kopp
  Model RH40E with related equipment, accessories and proceeds

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  November 12, 2007 (expiry November 12, 2009) under Registration
  No. 030986E

  	
   

  	
  Five
  Caterpillar motor vehicles

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  September 26, 2007 (expiry September 26, 2010) under Registration
  No. 942306D

  	
   

  	
  Six
  Caterpillar motor vehicles

  



 

















 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  September 25, 2007 (expiry September 25, 2010) under Registration
  No. 939036D

  	
   

  	
  Four
  Caterpillar motor vehicles

  
	
  Toromont
  CAT, A Div. of Toromont Industries Ltd.

  	
   

  	
  Registered
  October 20, 2008 (expiry October 20, 2010) under Registration
  No. 649747E

  	
   

  	
  Caterpillar
  980H plus attachments

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  November 4, 2008 (expiry November 4, 2011) under Registration
  No. 678095E

  	
   

  	
  Caterpillar
  980H plus attachments

  



 


Registrations
Against Agnico-Eagle Mines Limited Under the Nunavut Territory Personal
Property Registry


 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  September 25, 2007 (expiry September 25, 2010) under Registration
  No. 107953

  	
   

  	
  Four
  Caterpillar motor vehicles

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  September 26, 2007 (expiry September 26, 2010) under Registration
  No. 108001

  	
   

  	
  Six
  Caterpillar motor vehicles

  
	
  HSBC
  Bank Canada

  	
   

  	
  Registered
  September 26, 2007 (expiry September 26, 2010) under Registration
  No. 108035

  	
   

  	
  1
  Orenstein & Kopp Model RH40E with related equipment, accessories and
  proceeds

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  November 12, 2007 (expiry November 12, 2009) under Registration
  No. 110072

  	
   

  	
  Five
  Caterpillar motor vehicles

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  July 11, 2008  (expiry
  July 11, 2011)under Registration No. 122010

  	
   

  	
  Two
  Caterpillar motor vehicles

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  July 11, 2008  (expiry
  July 11, 2011)under Registration No. 122028

  	
   

  	
  Eight
  Caterpillar motor vehicles

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  July 14, 2008 (expiry July 14, 2011) under Registration
  No. 122069; Amendment No. 122135

  	
   

  	
  Four
  Caterpillar motor vehicles

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  July 14, 2008  (expiry
  July 14, 2011)under Registration No. 122077

  	
   

  	
  One
  Caterpillar motor vehicle

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  July 14, 2008  (expiry
  July 14, 2011)under Registration No. 122085

  	
   

  	
  One
  Caterpillar motor vehicle

  



 


2

















 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  July 14, 2008  (expiry
  July 14, 2011) under Registration No. 122093

  	
   

  	
  One
  Caterpillar motor vehicle

  
	
  Toromont
  CAT, A Div. of Toromont Industries Ltd.

  	
   

  	
  Registered
  October 20, 2008 (expiry October 20, 2010) under Registration
  No. 127274

  	
   

  	
  One
  Caterpillar motor vehicle

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  November 5, 2008 (expiry November 5, 2011) under Registration
  No. 128090

  	
   

  	
  One
  Caterpillar motor vehicle

  
	
  Caterpillar
  Financial Services Limited

  	
   

  	
  Registered
  December 16, 2008 (expiry December 16, 2011) under Registration
  No. 130468

  	
   

  	
  Three
  Caterpillar motor vehicles

  



 


Registrations
Against Agnico-Eagle Mines Limited in the Register of Personal and Moveable
Real Rights – Quebec


 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Sandvick
  Tamrock Canada Inc.

  	
   

  	
  Registered
  October 19, 1999 (expiry October 14, 2009) under Registration
  No. 99-0170979-0001

  	
   

  	
  Toro
  – Load Haul Dump –serial number 29014019

  
	
  Praxair
  Canada Inc.

  	
   

  	
  Registered
  January 29, 2004 (expiry January 28, 2010) under Registration
  No. 04-0045863-0001

  	
   

  	
  All
  present and future bulk cryogenic storage tanks used for the storage, filing
  and delivery of industrial and medical gases.

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  on April 6, 2005 (expiry March 30, 2010) under Registration
  No. 05-0188197-0001

  	
   

  	
  Photocopier

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  on July 8, 2005 (expiry June 26, 2009) under Registration
  No. 05-0395751-0001

  	
   

  	
  Photocopier

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  on November 21, 2005 (expiry November 16, 2009) under Registration
  No. 05-0660688-0001

  	
   

  	
  Photocopier

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  on December 28, 2005 (expiry November 17, 2009) under Registration
  No. 05-0728078-0001

  	
   

  	
  Photocopier

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  on March 3, 2006 (expiry February 9, 2010) under Registration
  No. 06-0107904-0001

  	
   

  	
  Photocopier

  



 


3

















 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Ford
  Credit Canada Leasing Company

   

  Hardy
  Ringuette Automobiles Inc. (assignee)

   

  Canadian
  Road Leasing Company (assignee)

  	
   

  	
  Registered
  September 5, 2006 (expiry September 5, 2009) under Registration
  No. 06-0511147-0001

  	
   

  	
  2006
  Ford F150, serial

  #1FTVX14546NB24152

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  October 12, 2006 (expiry October 4, 2010) under Registration
  No. 06-0591413-0001

  	
   

  	
  Photocopier

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  January 17, 2007 (expiry January 10, 2010) under Registration
  No. 07-0025303-0001

  	
   

  	
  Photocopier
  and related equipment

  
	
  Ford
  Credit Canada Leasing, A Division of Canadian Road Leasing Company

   

  Hardy Ringuette Automobiles Inc. (assignee)

  	
   

  	
  Registered
  March 21, 2007 (expiry March 20, 2010) under Registration
  No. 07-0143496-0001

  	
   

  	
  2007
  Ford F150, serial

  #1FTRF14W57NA40565

  
	
  Hardy
  Ringuette Automobiles Inc.

   

  Ford
  Credit Canada Leasing, A Division of Canadian Road Leasing Company (assignee)

  	
   

  	
  Registered
  March 23, 2007 (expiry March 22, 2010) under Registration
  No. 07-0149337-0069

  	
   

  	
  2007
  Ford F150, serial

  #1FTRF14W57NA40565

  
	
  Ford
  Credit Canada Leasing, A Division of Canadian Road Leasing Company

   

  Hardy Ringuette Automobiles Inc. (assignee)

  	
   

  	
  Registered
  April 18, 2007 (expiry April 16, 2010) under Registration
  No. 07-0200265-0001

  	
   

  	
  2007
  Ford F150, serial

  #1FTVX14587NA35220

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  April 19, 2007 (expiry April 5, 2010) under Registration
  No. 07-0206330-0001

  	
   

  	
  Photocopier

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  July 11, 2007 (expiry May 18, 2010) under Registration
  No. 07-0396248-0001

  	
   

  	
  Photocopier
  and related equipment

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  October 10, 2007 (expiry July 27, 2010) under Registration
  No. 07-0582625-0001

  	
   

  	
  Fax
  Canon Laser

  



 


4

















 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Hardy Ringuette Automobiles Inc.

   

  Location Credit Ford Canada, Une Division De
  Compagnie De Location Canadian Road (assignee)

  	
   

  	
  Registered
  October 15, 2007 (expiry October 14, 2010) under Registration
  No. 07-0591089-0023

  	
   

  	
  2008
  Ford F250, serial

  #1FTSW21598EB74175

  
	
  Hardy Ringuette Automobiles Inc.

   

  Location Credit Ford Canada, Une Division De
  Compagnie De Location Canadian Road (assignee)

  	
   

  	
  Registered
  October 30, 2007 (expiry October 29, 2010) under Registration
  No. 07-0623704-0033

  	
   

  	
  2008
  Ford Fl50, serial

  #1FTRF14W08KB60048

  
	
  Hardy Ringuette Automobiles Inc.

   

  Location Credit Ford Canada, Une Division De
  Compagnie De Location Canadian Road (assignee)

  	
   

  	
  Registered
  October 30, 2007 (expiry October 29, 2010) under Registration
  No. 07-0623704-0034

  	
   

  	
  2008
  Ford F150, serial

  #1FTRF14W38KB60271

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  December 7, 2007 (expiry November 14, 2011) under Registration
  No. 07-0700180-0001

  	
   

  	
  Photocopier
  and related equipment

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  December 7, 2007 (expiry October 3, 2011) under Registration
  No. 07-0700187-0001

  	
   

  	
  Photocopier
  and related equipment

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  January 30, 2008 (expiry January 16, 2012) under Registration
  No. 08-0051392-0001

  	
   

  	
  Photocopier
  and related equipment

  
	
  Ford
  Credit Canada Leasing, A Division of Canadian Road Leasing Company

  	
   

  	
  Registered
  February 11, 2008 (expiry February 10, 2011) under Registration
  No. 08-0072011-0063

  	
   

  	
  2008
  Ford Fl50, serial

  #1FTRF14WX8KB69517

  2008 Ford F150, serial

  #1FTRF14W68KB60507

  2008 Ford F150, serial

  #1FTRF14W18KC49661

  
	
  Hardy Ringuette Automobiles Inc.

   

  Location Credit Ford Canada, Une Division De
  Compagnie De Location Canadian Road (assignee)

  	
   

  	
  Registered
  April 7, 2008 (expiry April 6, 2011) under Registration
  No. 08-0183283-0019

  	
   

  	
  2008
  Ford F250, serial

  #1FTSW21538ED26581

  



 


5

















 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Hardy Ringuette Automobiles Inc.

   

  Location Credit Ford Canada, Une Division De
  Compagnie De Location Canadian Road (assignee)

  	
   

  	
  Registered
  April 7, 2008 (expiry April 6, 2011) under Registration
  No. 08-0183283-0020

  	
   

  	
  2008
  Ford F150, serial

  #1FTRF14W48KD09464

  
	
  Hardy Ringuette Automobiles Inc.

   

  Location Credit Ford Canada, Une Division De
  Compagnie De Location Canadian Road (assignee)

  	
   

  	
  Registered
  April 8, 2008 (expiry April 7, 2011) under Registration
  No. 08-0186276-0007

  	
   

  	
  2008
  Ford F150, serial

  #1FTVX14568KD01112

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  on July 7, 2008 (expiry July 31, 2011) under Registration
  No. 08-0394893-0001

  	
   

  	
  Photocopiers
  and related equipment

  
	
  Location Credit Ford Canada, Une Division De
  Compagnie De Location Canadian Road

  	
   

  	
  Registered
  July 11, 2008 (expiry July 9, 2011) under Registration
  No. 08-0403194-0019

  	
   

  	
  2008
  Ford F250, serial

  #1FTSX21548EE15511

  
	
  Hardy Ringuette Automobiles Inc.

   

  Location Credit Ford Canada, Une Division De
  Compagnie De Location Canadian Road (assignee)

  	
   

  	
  Registered
  July 18, 2008 (expiry July 17, 2011) under Registration
  No. 08-0420215-0075

  	
   

  	
  2008
  Ford F250, serial

  #1FTSX21548EE15511

  
	
  Toromont
  Cat, A Division of Toromont Industries Ltd.

   

  Caterpillar
  Financial Services Limited (assignee)

  	
   

  	
  Registered
  July 30, 2008 (expiry June 30, 2011) under Registration
  No. 08-0444262-0006

  	
   

  	
  Motor
  vehicles

  
	
  Location Credit Ford Candaa, Une Division De
  Compagnie De Location Canadian Road

  	
   

  	
  Registered
  October 8, 2008 (expiry October 8, 2011) under Registration
  No. 08-0583748-0018

  	
   

  	
  Motor
  vehicle

  
	
  Location Credit Ford Candaa, Une Division De
  Compagnie De Location Canadian Road

  	
   

  	
  Registered
  February 2, 2009 (expiry January 29, 2012) under Registration
  No. 09-0051290-0002

  	
   

  	
  Motor
  vehicle

  
	
  Location Credit Ford Candaa, Une Division De
  Compagnie De Location Canadian Road

  	
   

  	
  Registered
  February 27, 2009 (expiry February 26, 2012) under Registration
  No. 09-0102286-0045

  	
   

  	
  Motor
  vehicle

  



 


6

















 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  Gestion
  Loca-Bail Ltée

  	
   

  	
  Registered
  April 15, 2009 (expiry March 3, 2013) under Registration
  No. 09-0202771-0001

  	
   

  	
  Photocopiers
  and related equipment

  
	
  Location Credit Ford Candaa, Une Division De
  Compagnie De Location Canadian Road

  	
   

  	
  Registered
  May 11, 2009 (expiry May 10, 2012) under Registration
  No. 09-0264800-0020

  	
   

  	
  Motor
  vehicle

  



 


7














 


SCHEDULE C


OTHER SUPPORTED OBLIGATIONS


 


- Nil -


 

















 


SCHEDULE D 

LITIGATION


 


- Nil -


 

















 


SCHEDULE E 

EQUITY INTERESTS AND ORGANIZATION STRUCTURE


 


The
ownership of the equity interests in each Obligor is set out below:


 


Agnico-Eagle Mines Limited is a publicly traded corporation. As of March 31,
2009, there were 155,656,432 common shares issued and outstanding.


 


There are 30,000 common shares of Agnico-Eagle (Delaware) L.L.C. issued
and outstanding. Agnico-Eagle Mines Limited owns 30,000 (100%) of these shares.


 


There are 30,000 common shares of Agnico-Eagle (Delaware) II L.L.C.
issued and outstanding. Agnico-Eagle Mines Limited owns 30,000 (100%) of these
shares.


 


There are 30,000 common shares of Agnico-Eagle
(Delaware) III L.L.C. issued and outstanding. 1715495 Ontario Inc. owns 30,000
(100%) of these shares.


 


There are 967,897,304 common shares of Agnico Eagle México, S.A. de
C.V. issued and outstanding. Agnico-Eagle Mines Limited owns 919,773,255 (95%)
of these shares. 1641315 Ontario Inc. owns 48,124,049 (5%) of these shares.


 


There are 48,124,049 common shares of 1641315 Ontario Inc. issued and
outstanding. Agnico-Eagle Mines Limited owns 48,124,049 common shares (100%) of
these shares.


 


There is 1 common share of 1715495 Ontario Inc. issued and outstanding.
Agnico-Eagle Mines Limited owns this share.


 


There are 1,002 common shares of Agnico-Eagle Sweden AB. 1715495
Ontario Inc. owns 1,002 (100%) of these shares.


 


There are 105,753,846 common shares of Riddarhyttan Resources AB.
Agnico-Eagle Sweden AB owns 105,753,846 (100%) of these shares.


 


There are 1,000 common shares of Agnico-Eagle AB. Riddarhyttan
Resources AB owns 1,000 (100%) of these shares.


 

















 


EQUITY
INTERESTS HELD BY OBLIGORS


 


Each of the following Obligors holds the equity interests as set out in
the table under their name:


 


1.             AGNICO-EAGLE
MINES LIMITED


 


	
  1641315
  Ontario Inc.

  	
   

  	
  48,124,049
  common shares (100%)

  
	
  1715495
  Ontario Inc.

  	
   

  	
  1
  common share (100%)

  
	
  Agnico Eagle México, S.A. de C.V.

  	
   

  	
  919,773,255
  common shares (95%)

  
	
  Agnico-Eagle
  (Delaware) II L.L.C.

  	
   

  	
  30,000
  common shares (100%)

  
	
  Agnico-Eagle
  (Delaware) L.L.C.

  	
   

  	
  30,000
  common shares (100%)

  
	
  Agnico-Eagle
  (USA) Limited

  	
   

  	
  1,000
  common shares (100%)

  
	
  Genex
  Exploration Corp.

  	
   

  	
  100
  common shares (100%)

  
	
  Penna
  Insurance Inc.

  	
   

  	
  1,000
  common shares (100%)

  
	
  Servicios
  Agnico Eagle Mexico, S.A. de C.V.

  	
   

  	
  49,999
  common shares (99.9%)

  
	
  Servicios Pinos Altos S.A. de C.V.

  	
   

  	
  49,999
  common shares (99.9%)

  



 


Agnico-Eagle Mines Limited also has minority investments in several
junior mining companies which it holds for investment purposes.


 


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


 


- nil -


 


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


 


- nil -


 


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


 


- nil -


 


5.             1715495 ONTARIO
INC.


 


	
  Agnico-Eagle
  (Delaware) III L.L.C.

  	
   

  	
  30,000
  common shares (100%)

  
	
  Agnico-Eagle
  Sweden AB

  	
   

  	
  1,002
  common shares (100%)

  



 


2

















 


6.             1641315 ONTARIO INC.


 


	
  Agnico Eagle México, S.A. de C.V.

  	
   

  	
  48,124,049
  common shares (25%)

  
	
  Servicios
  Agnico Eagle Mexico S.A. de C.V.

  	
   

  	
  1
  common share (0.01%)

  
	
  Servicios Pinos Altos S.A. de C.V.

  	
   

  	
  1
  common share (0.01%)

  



 


7.             AGNICO-EAGLE
SWEDEN AB


 


	
  Riddarhyttan
  Resources AB

  	
   

  	
  105,753,846
  common shares (100%)

  



 


8.             RIDDARHYTTAN
RESOURCES AB


 


	
  Agnico-Eagle
  AB

  	
   

  	
  1,000
  common shares (100%)

  
	
  Riddarhyttan
  Resources Oy

  	
   

  	
  10,000
  common shares (100%)

  



 


9.            AGNICO-EAGLE AB 


 


- nil -


 


10.          AGNICO EAGLE MÉXICO,
S.A. de C.V. 


 


- nil -


 


3

















 


SUBSIDIARIES, PARTNERSHIPS AND
JOINT VENTURES OF OBLIGORS


 


(see attached chart)


 














 





 


Notes:


 


The
LaRonde and Goldex Mines and the Lapa & Meadowbank development
projects are owned by Agnico-Eagle Mines Limited and each mine/project is
operated as a separate division. 


The
Kittila Mine is owned by Agnico-Eagle AB and is operated by an unincorporated
Finnish Branch of Agnico-Eagle AB. 


The Pinos Altos development project is owned by Agnico Eagle Mexico, SA
de CV. 


Tor#:
2331076.1