Exhibit
4.01


 


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 Co-Lead Arranger and Administrative Agent


 


-and-


 


SOCIÉTÉ GÉNÉRALE (CANADA BRANCH)

as Co-Lead Arranger and Syndication Agent


 


-and-


 


THE TORONTO-DOMINION BANK

as Documentation Agent


 


 


AMENDED AND RESTATED CREDIT
AGREEMENT


DATED AS OF JUNE 15, 2009


US$300,000,000 CREDIT FACILITIES


 


 


BORDEN LADNER GERVAIS LLP




DAVIES WARD PHILLIPS &
VINEBERG LLP


 

















 


TABLE OF
CONTENTS


 


	
  1.     INTERPRETATION

  	
   

  	
  2

  
	
  1.1

  	
   

  	
  Definitions

  	
   

  	
  2

  
	
  1.2

  	
   

  	
  Interpretation

  	
   

  	
  37

  
	
  1.3

  	
   

  	
  Currency

  	
   

  	
  37

  
	
  1.4

  	
   

  	
  Generally
  Accepted Accounting Principles

  	
   

  	
  37

  
	
  1.5

  	
   

  	
  Division
  and Titles

  	
   

  	
  38

  
	
  1.6

  	
   

  	
  Calculations

  	
   

  	
  38

  
	
  1.7

  	
   

  	
  Amendment
  and Restatement

  	
   

  	
  38

  
	
  1.8

  	
   

  	
  Letters
  of Credit

  	
   

  	
  38

  
	
   

  	
   

  	
   

  
	
  2.     THE CREDIT

  	
   

  	
  39

  
	
  2.1

  	
   

  	
  Amounts
  of Credit Facility

  	
   

  	
  39

  
	
  2.2

  	
   

  	
  Availment
  Options under Credit Facility

  	
   

  	
  39

  
	
  2.3

  	
   

  	
  Revolving
  Credit Facility

  	
   

  	
  39

  
	
  2.4

  	
   

  	
  Purpose/Use
  of the Credit Facility

  	
   

  	
  39

  
	
  2.5

  	
   

  	
  Term
  and Repayment

  	
   

  	
  40

  
	
  2.6

  	
   

  	
  Voluntary
  Prepayments and Voluntary Cancellations

  	
   

  	
  42

  
	
  2.7

  	
   

  	
  Interest
  Rates

  	
   

  	
  42

  
	
  2.8

  	
   

  	
  Annual
  Agency Fees

  	
   

  	
  45

  
	
  2.9

  	
   

  	
  Exchange
  Rate Fluctuations

  	
   

  	
  45

  
	
  2.10

  	
   

  	
  Pro-Rata
  Utilizations

  	
   

  	
  45

  
	
   

  	
   

  	
   

  
	
  3.     ADVANCES, CONVERSIONS AND OPERATION OF ACCOUNTS

  	
   

  	
  46

  
	
  3.1

  	
   

  	
  Notice
  of Borrowing - Direct Advances

  	
   

  	
  46

  
	
  3.2

  	
   

  	
  LIBOR
  Advances and Conversions

  	
   

  	
  46

  
	
  3.3

  	
   

  	
  Letters
  of Credit

  	
   

  	
  47

  
	
  3.4

  	
   

  	
  Swing
  Line Advances

  	
   

  	
  53

  
	
  3.5

  	
   

  	
  Defaulting
  Lenders

  	
   

  	
  56

  
	
  3.6

  	
   

  	
  Evidence
  of Indebtedness

  	
   

  	
  57

  
	
  3.7

  	
   

  	
  Apportionment
  of Advances

  	
   

  	
  57

  
	
  3.8

  	
   

  	
  Notices
  Irrevocable

  	
   

  	
  58

  
	
  3.9

  	
   

  	
  Limits
  on BA Advances, Letters of Credit and Libor Advances

  	
   

  	
  58

  
	
   

  	
   

  	
   

  
	
  4.     CALCULATION OF INTEREST AND FEES

  	
   

  	
  58

  
	
  4.1

  	
   

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

  	
   

  	
  58

  
	
  4.2

  	
   

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

  	
   

  	
  58

  
	
  4.3

  	
   

  	
  Calculation
  of Interest on Libor Basis

  	
   

  	
  58

  
	
  4.4

  	
   

  	
  Payment
  of Interest on Libor Basis

  	
   

  	
  58

  
	
  4.5

  	
   

  	
  Fixing
  of LIBOR

  	
   

  	
  59

  
	
  4.6

  	
   

  	
  Interest
  on Miscellaneous Amounts

  	
   

  	
  59

  
	
  4.7

  	
   

  	
  Default
  Interest

  	
   

  	
  59

  
	
  4.8

  	
   

  	
  Maximum
  Interest Rate

  	
   

  	
  59

  
	
  4.9

  	
   

  	
  Interest
  Act

  	
   

  	
  60

  
	
   

  	
   

  	
   

  
	
  5.     BANKERS’ACCEPTANCES

  	
   

  	
  60

  
	
  5.1

  	
   

  	
  Advances
  by Bankers’ Acceptances and Conversions into Bankers’ Acceptances

  	
   

  	
  60

  
	
  5.2

  	
   

  	
  Acceptance
  Procedure

  	
   

  	
  61

  
	
  5.3

  	
   

  	
  Purchase
  of Bankers’ Acceptances and Discount Notes

  	
   

  	
  62

  



 


i

















 


	
  5.4

  	
   

  	
  Maturity
  Date of Bankers’ Acceptances

  	
   

  	
  63

  
	
  5.5

  	
   

  	
  Deemed
  Conversions on the Maturity Date of Bankers’ Acceptances

  	
   

  	
  63

  
	
  5.6

  	
   

  	
  Conversion
  and Extension Mechanism

  	
   

  	
  63

  
	
  5.7

  	
   

  	
  No
  Prepayment of Bankers’ Acceptances

  	
   

  	
  64

  
	
  5.8

  	
   

  	
  Apportionment
  Amongst the Lenders

  	
   

  	
  64

  
	
  5.9

  	
   

  	
  Days
  of Grace

  	
   

  	
  64

  
	
  5.10

  	
   

  	
  Obligations
  Absolute

  	
   

  	
  64

  
	
  5.11

  	
   

  	
  Depository
  Bills and Notes Act

  	
   

  	
  65

  
	
   

  	
   

  	
   

  
	
  6.     ILLEGALITY, INCREASED COSTS, INDEMNIFICATION AND MARKET
  DISRUPTIONS

  	
   

  	
  65

  
	
  6.1

  	
   

  	
  Illegality

  	
   

  	
  65

  
	
  6.2

  	
   

  	
  Increased
  Costs

  	
   

  	
  66

  
	
  6.3

  	
   

  	
  Taxes

  	
   

  	
  68

  
	
  6.4

  	
   

  	
  Breakage
  Costs, Failure to Borrow or Repay After Notice

  	
   

  	
  70

  
	
  6.5

  	
   

  	
  Mitigation
  Obligations: Replacement of Lenders

  	
   

  	
  70

  
	
  6.6

  	
   

  	
  Market
  for Bankers’ Acceptances and Libor Advances

  	
   

  	
  72

  
	
   

  	
   

  	
   

  
	
  7.     PROVISIONS RELATING TO PAYMENTS

  	
   

  	
  73

  
	
  7.1

  	
   

  	
  Payment
  of Losses Resulting From a Prepayment

  	
   

  	
  73

  
	
  7.2

  	
   

  	
  Imputation
  of Prepayments

  	
   

  	
  73

  
	
  7.3

  	
   

  	
  Currency
  of Payments

  	
   

  	
  73

  
	
  7.4

  	
   

  	
  Payments
  by the Borrower to the Agent

  	
   

  	
  74

  
	
  7.5

  	
   

  	
  Payment
  on a Business Day

  	
   

  	
  74

  
	
  7.6

  	
   

  	
  Payments
  by the Lenders to the Agent

  	
   

  	
  74

  
	
  7.7

  	
   

  	
  Netting

  	
   

  	
  74

  
	
  7.8

  	
   

  	
  Application
  of Payments

  	
   

  	
  74

  
	
  7.9

  	
   

  	
  No
  Set-Off or Counterclaim by Borrower

  	
   

  	
  74

  
	
  7.10

  	
   

  	
  Debit
  Authorization

  	
   

  	
  75

  
	
   

  	
   

  	
   

  
	
  8.     GUARANTEES

  	
   

  	
  75

  
	
  8.1

  	
   

  	
  Guarantees

  	
   

  	
  75

  
	
  8.2

  	
   

  	
  Additional
  Guarantors

  	
   

  	
  75

  
	
  8.3

  	
   

  	
  Obligations
  Supported by the Guarantees

  	
   

  	
  76

  
	
  8.4

  	
   

  	
  Other
  Supported Obligations

  	
   

  	
  76

  
	
  8.5

  	
   

  	
  Limitation

  	
   

  	
  76

  
	
   

  	
   

  	
   

  
	
  9.     CONDITIONS PRECEDENT

  	
   

  	
  76

  
	
  9.1

  	
   

  	
  Conditions
  to Effectiveness

  	
   

  	
  76

  
	
  9.2

  	
   

  	
  Conditions
  Precedent to each Advance

  	
   

  	
  78

  
	
  9.3

  	
   

  	
  Waiver
  of Conditions Precedent

  	
   

  	
  79

  
	
   

  	
   

  	
   

  
	
  10.       REPRESENTATIONS AND WARRANTIES

  	
   

  	
  79

  
	
  10.1

  	
   

  	
  Existence,
  Power and Authority

  	
   

  	
  79

  
	
  10.2

  	
   

  	
  Loan
  Documents

  	
   

  	
  79

  
	
  10.3

  	
   

  	
  Conduct
  of Business

  	
   

  	
  80

  
	
  10.4

  	
   

  	
  Litigation

  	
   

  	
  81

  
	
  10.5

  	
   

  	
  Financial
  Statements and Information

  	
   

  	
  81

  
	
  10.6

  	
   

  	
  Subsidiaries,
  etc.

  	
   

  	
  81

  
	
  10.7

  	
   

  	
  Title
  to Property

  	
   

  	
  82

  
	
  10.8

  	
   

  	
  Taxes

  	
   

  	
  82

  



 


ii

















 


	
  10.9

  	
   

  	
  Insurance

  	
   

  	
  82

  
	
  10.10

  	
   

  	
  No Material Adverse Effect

  	
   

  	
  82

  
	
  10.11

  	
   

  	
  Pension Matters

  	
   

  	
  82

  
	
  10.12

  	
   

  	
  Ranking and Priority

  	
   

  	
  83

  
	
  10.13

  	
   

  	
  Absence of Default

  	
   

  	
  83

  
	
  10.14

  	
   

  	
  Environment

  	
   

  	
  83

  
	
  10.15

  	
   

  	
  Mines

  	
   

  	
  84

  
	
  10.16

  	
   

  	
  Complete and Accurate Information

  	
   

  	
  84

  
	
  10.17

  	
   

  	
  Survival of Representations and Warranties

  	
   

  	
  85

  
	
   

  	
   

  	
   

  
	
  11.       FINANCIAL COVENANTS

  	
   

  	
  85

  
	
  11.1

  	
   

  	
  Total
  Net Debt to EBITDA Ratio

  	
   

  	
  85

  
	
  11.2

  	
   

  	
  Tangible
  Net Worth

  	
   

  	
  85

  
	
   

  	
   

  	
   

  
	
  12.       AFFIRMATIVE COVENANTS

  	
   

  	
  85

  
	
  12.1

  	
   

  	
  Existence
  and Good Standing

  	
   

  	
  86

  
	
  12.2

  	
   

  	
  Permits

  	
   

  	
  86

  
	
  12.3

  	
   

  	
  Books
  and Records

  	
   

  	
  86

  
	
  12.4

  	
   

  	
  Property

  	
   

  	
  86

  
	
  12.5

  	
   

  	
  Material
  Contracts

  	
   

  	
  86

  
	
  12.6

  	
   

  	
  Financial
  Information

  	
   

  	
  86

  
	
  12.7

  	
   

  	
  Compliance
  with Applicable Law

  	
   

  	
  87

  
	
  12.8

  	
   

  	
  Insurance

  	
   

  	
  87

  
	
  12.9

  	
   

  	
  Payment
  of Taxes

  	
   

  	
  87

  
	
  12.10

  	
   

  	
  Access and Inspection

  	
   

  	
  87

  
	
  12.11

  	
   

  	
  Maintenance of Accounts

  	
   

  	
  88

  
	
  12.12

  	
   

  	
  Performance of Obligations

  	
   

  	
  88

  
	
  12.13

  	
   

  	
  Litigation

  	
   

  	
  88

  
	
  12.14

  	
   

  	
  Payment of Fees and Other Expenses

  	
   

  	
  88

  
	
   

  	
   

  	
   

  
	
  13.       REPORTING AND NOTICE REQUIREMENTS

  	
   

  	
  89

  
	
  13.1

  	
   

  	
  Financial
  and Other Reporting

  	
   

  	
  89

  
	
  13.2

  	
   

  	
  Requirements
  for Notice

  	
   

  	
  91

  
	
   

  	
   

  	
   

  
	
  14.       NEGATIVE COVENANTS

  	
   

  	
  92

  
	
  14.1

  	
   

  	
  Debt

  	
   

  	
  92

  
	
  14.2

  	
   

  	
  Liens

  	
   

  	
  92

  
	
  14.3

  	
   

  	
  Investments

  	
   

  	
  92

  
	
  14.4

  	
   

  	
  Distributions

  	
   

  	
  93

  
	
  14.5

  	
   

  	
  Asset
  Dispositions

  	
   

  	
  93

  
	
  14.6

  	
   

  	
  Derivative
  Instruments

  	
   

  	
  93

  
	
  14.7

  	
   

  	
  Line
  of Business

  	
   

  	
  94

  
	
  14.8

  	
   

  	
  Affiliate
  Transactions

  	
   

  	
  94

  
	
  14.9

  	
   

  	
  Subordinated
  Debt

  	
   

  	
  94

  
	
  14.10

  	
   

  	
  Liquidation and Amalgamation

  	
   

  	
  94

  
	
   

  	
   

  	
   

  
	
  15.       EVENTS OF DEFAULT AND ENFORCEMENT

  	
   

  	
  95

  
	
  15.1

  	
   

  	
  Events
  of Default

  	
   

  	
  95

  
	
  15.2

  	
   

  	
  Remedies

  	
   

  	
  98

  
	
  15.3

  	
   

  	
  Notice

  	
   

  	
  99

  
	
  15.4

  	
   

  	
  Escrowed
  Funds for Letters of Credit and Bankers’ Acceptances

  	
   

  	
  99

  



 


iii

















 


	
  15.5

  	
   

  	
  Costs

  	
   

  	
  100

  
	
  15.6

  	
   

  	
  Relations
  with the Obligors

  	
   

  	
  100

  
	
  15.7

  	
   

  	
  Application
  of Proceeds

  	
   

  	
  101

  
	
   

  	
   

  	
   

  
	
  16.       THE AGENT AND THE LENDERS

  	
   

  	
  101

  
	
  16.1

  	
   

  	
  Authorization
  of Agent

  	
   

  	
  101

  
	
  16.2

  	
   

  	
  Agent’s
  Responsibility

  	
   

  	
  102

  
	
  16.3

  	
   

  	
  Rights
  of Agent as Lender

  	
   

  	
  103

  
	
  16.4

  	
   

  	
  Indemnity
  by Lenders

  	
   

  	
  104

  
	
  16.5

  	
   

  	
  Notice
  by Agent to Lenders

  	
   

  	
  104

  
	
  16.6

  	
   

  	
  Protection
  of Agent - Advances and Payments

  	
   

  	
  104

  
	
  16.7

  	
   

  	
  Notice
  by Lenders to Agent

  	
   

  	
  105

  
	
  16.8

  	
   

  	
  Sharing
  Among the Lenders

  	
   

  	
  105

  
	
  16.9

  	
   

  	
  Procedure
  With Respect to Advances

  	
   

  	
  106

  
	
  16.10

  	
   

  	
  Non-Payment by Lenders

  	
   

  	
  107

  
	
  16.11

  	
   

  	
  Accounts Kept by Each Lender

  	
   

  	
  107

  
	
  16.12

  	
   

  	
  Binding Determinations

  	
   

  	
  107

  
	
  16.13

  	
   

  	
  Amendment of Article 16

  	
   

  	
  108

  
	
  16.14

  	
   

  	
  Decisions, Amendments and Waivers of the Lenders

  	
   

  	
  108

  
	
  16.15

  	
   

  	
  Authorized Waivers, Variations and Omissions

  	
   

  	
  108

  
	
  16.16

  	
   

  	
  Provisions for the Benefit of Lenders Only

  	
   

  	
  109

  
	
  16.17

  	
   

  	
  Assignment by Agent to an Affiliate

  	
   

  	
  109

  
	
  16.18

  	
   

  	
  Collective Action of the Lenders

  	
   

  	
  109

  
	
  16.19

  	
   

  	
  Resignation of Agent

  	
   

  	
  109

  
	
   

  	
   

  	
   

  
	
  17.       CURRENCY CONVERSION, ETC.

  	
   

  	
  110

  
	
  17.1

  	
   

  	
  Rules of
  Conversion

  	
   

  	
  110

  
	
  17.2

  	
   

  	
  Determination
  of Equivalent Amount in another Currencies

  	
   

  	
  111

  
	
   

  	
   

  	
   

  
	
  18.       ASSIGNMENT

  	
   

  	
  111

  
	
  18.1

  	
   

  	
  Assignment
  by the Borrower

  	
   

  	
  111

  
	
  18.2

  	
   

  	
  Assignments
  and Transfers by the Lenders

  	
   

  	
  112

  
	
  18.3

  	
   

  	
  Register

  	
   

  	
  113

  
	
  18.4

  	
   

  	
  Electronic
  Execution of Assignments

  	
   

  	
  114

  
	
  18.5

  	
   

  	
  Participations

  	
   

  	
  114

  
	
  18.6

  	
   

  	
  Limitations
  Upon Participant Rights

  	
   

  	
  114

  
	
  18.7

  	
   

  	
  Promissory
  Notes

  	
   

  	
  115

  
	
   

  	
   

  	
   

  
	
  19.       MISCELLANEOUS

  	
   

  	
  115

  
	
  19.1

  	
   

  	
  Notices

  	
   

  	
  115

  
	
  19.2

  	
   

  	
  Amendment
  and Waiver

  	
   

  	
  116

  
	
  19.3

  	
   

  	
  Lender
  Replacement

  	
   

  	
  117

  
	
  19.4

  	
   

  	
  Independent
  Engineer and Other Consultants

  	
   

  	
  120

  
	
  19.5

  	
   

  	
  Entire
  Agreement

  	
   

  	
  120

  
	
  19.6

  	
   

  	
  Indemnification
  and Set-Off

  	
   

  	
  121

  
	
  19.7

  	
   

  	
  Benefit
  of Agreement

  	
   

  	
  121

  
	
  19.8

  	
   

  	
  Counterparts

  	
   

  	
  121

  
	
  19.9

  	
   

  	
  This
  Agreement to Govern

  	
   

  	
  121

  
	
  19.10

  	
   

  	
  Applicable Law

  	
   

  	
  121

  
	
  19.11

  	
   

  	
  Severability

  	
   

  	
  121

  



 


iv

















 


	
  19.12

  	
   

  	
  Further Assurances

  	
   

  	
  122

  
	
  19.13

  	
   

  	
  Good Faith and Fair Consideration

  	
   

  	
  122

  
	
  19.14

  	
   

  	
  Responsibility of the Lenders

  	
   

  	
  122

  
	
  19.15

  	
   

  	
  Indemnity

  	
   

  	
  122

  
	
  19.16

  	
   

  	
  Confidentiality

  	
   

  	
  123

  
	
  19.17

  	
   

  	
  Reinstatement

  	
   

  	
  124

  
	
  19.18

  	
   

  	
  Submission to Jurisdiction

  	
   

  	
  125

  
	
  19.19

  	
   

  	
  Waiver of Venue

  	
   

  	
  125

  
	
  19.20

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  125

  
	
  19.21

  	
   

  	
  Language

  	
   

  	
  126

  
	
  19.22

  	
   

  	
  Third Party Beneficiaries

  	
   

  	
  126

  
	
  19.23

  	
   

  	
  Formal Date

  	
   

  	
  126

  
	
  19.24

  	
   

  	
  Swedish Companies Act

  	
   

  	
  126

  



 


	
   

  	
  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


 


BETWEEN:


 


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 January 10, 2008, as amended
by amendment no. 1 to 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, Swing Line Advances, US Base Rate Advances and Libor Advances, (b) indirect
advances by way of BA Advances and the issuance of Letters of Credit, (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 and
Letters of Credit;


 


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                        “Agency Fee Letter” means the confidential
letter agreement dated January 10, 2008 between the Agent and the
Borrower, providing for the payment of certain agency fees in relation to the
Credit Facility;


 


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


 


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


 


1.1.11                      “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;


 


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


 


1.1.13                      “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, including participations in respect of Letters of Credit
represented by such Lender’s outstanding Advances;


 


1.1.14                      “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;


 


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


 


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


 


1.1.17                      “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;


 


3

















 


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


 


1.1.19                      “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;


 


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


 


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


 


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


 


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


 


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


 


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


 


1.1.26                      “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:


 


	
   

  	
  l

  
	
   

  	
  (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”);


 


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


 


1.1.28                      “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


 


4

















 


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”;


 


1.1.29                      “Bankers’ Acceptance Discount Rate” means, as determined by the
Agent (a) in respect of Bankers’ Acceptances to be purchased by the
Lenders which are Schedule I banks under the Bank Act (Canada), the average
rate for Canadian Dollar bankers’ acceptances (rounded up to the nearest 1/100
of 1%) having Designated Periods of one, two, three, or six months quoted on
Reuters Service, page CDOR “Canadian Interbank Bid BA Rates” (the “CDOR Rate”), having an identical Designated Period to that of the Bankers’
Acceptances to be issued on such day and (b) in respect of Bankers’
Acceptances to be purchased by the Lenders which are Schedule II banks under
the Bank Act (Canada) or Schedule III banks under the Bank Act (Canada) which
are not subject to the restrictions and requirements referred to in Section 524(2) thereof,
and in respect of Discount Notes, the average of the rates for Canadian Dollar
bankers’ acceptances quoted by the Schedule II Reference Lenders (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 Lenders,


 


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


 


5

















 


Schedule I Reference Lenders or the Schedule II Reference Lenders, 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
Lenders, 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;


 


1.1.30                      “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;


 


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


 


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


 


1.1.33                      “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;


 


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


 


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


 


1.1.36                      “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


 


6

















 


capitalized amount thereof, determined in accordance with GAAP;


 


1.1.37                      “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;


 


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


 


1.1.38.1                   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;


 


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


 


1.1.38.3                   commercial
paper, bonds, notes, debentures and bankers’ acceptances issued by a Person
residing in Canada or the USA and not referred to in subsections 1.1.38.1,
1.1.38.2 or 1.1.38.4, 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-1
(middle) by DBRS, and, in respect of Canadian asset-backed commercial paper
that is based on a DBRS rating, provided further that such asset-backed
commercial paper is issued by a Person appearing on the list of “Global Liquidity
Standard


 


7

















 


for ABCP Issuers” published and maintained by DBRS;


 


1.1.38.4                   (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;


 


1.1.38.5                   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 1.1.38.4 which is
secured by a fully perfected security interest in any obligation of the type
described in subsection 1.1.38.1 or 1.1.38.2 and has a market value at the time
such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution thereunder; and


 


1.1.38.6                   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);


 


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


 


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


 


1.1.41                      “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


 


8

















 


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;


 


1.1.42                      “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;


 


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


 


1.1.44                      “Closing Date” means January 10, 2008;


 


1.1.45                      “Co-Lead Arrangers” means each of The Bank of
Nova Scotia and Société Générale (Canada Branch), in such capacity;


 


9














 


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;


 


10

















 


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


 


11

















 


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 (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 1.1.56.6 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 or fund its participating interests
in Swing Line 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


 


12

















 


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 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 3.2, 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;


 


13

















 


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                      “Draft” means any draft, bill of exchange, receipt,
acceptance, demand or other request for payment drawn or issued under or in
respect of a Letter of Credit;


 


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


 


1.1.70                      “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:


 


1.1.70.1                   onsite and offsite cash
operating costs for such period;


 


1.1.70.2                   cash general and
administrative expenses for such period;


 


1.1.70.3                   cash capital taxes for such
period; and


 


1.1.70.4                   cash reclamation
expenditures for such period;


 


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


 


1.1.71                      “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;


 


1.1.72                      “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


 


14

















 


has been obtained; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include any
Obligor or any Affiliate of an Obligor;


 


1.1.73                      “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;


 


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


 


1.1.75                      “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;


 


15














 


1.1.76                      “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;


 


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


 


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


 


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


 


1.1.80                      “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


 


16

















 


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;


 


1.1.81                      “Fee Letter” means the confidential letter agreement dated January 10,
2008 between the Borrower and Co-Lead Arrangers, providing for the payment of
certain fees in relation to the Credit Facility;


 


1.1.82                      “First 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;


 


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


 


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                      “Former Swing Line Lender” has the meaning defined in Section 3.4.6;


 


1.1.86                      “Fronting Fee” means the fee payable to the Issuing Lender
upon the issuance or renewal of a Letter of Credit by the Issuing Lender
calculated in accordance with subsection 3.3.2.2;


 


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


 


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


 


1.1.89                      “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


 


17

















 


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;


 


1.1.90                      “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;


 


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


 


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


 


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


 


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


 


1.1.95                      “Impacted Lender” means any Lender as to which (a) the
Agent, the Issuing Lender or the Swing Line Lender has a good faith belief that
such Lender has defaulted in fulfilling its obligations under one or more other
syndicated credit facilities, (b) an entity that controls the Lender has
been determined by a court of competent jurisdiction or regulator to be
insolvent or is


 


18

















 


unable to meet its obligations or pay its debts as they generally
become due or (c) an entity that controls the Lender is the subject of a
bankruptcy or insolvency proceeding;


 


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


 


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


 


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


 


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


 


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


 


1.1.101                    “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;


 


1.1.102                    “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;


 


1.1.103                    “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;


 


1.1.104                    “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;


 


1.1.105                    “Issuing Lender” means The Bank of Nova Scotia, or any
successor issuer of Letters of Credit appointed by the Borrower in accordance
with Section 3.3.6.5;


 


19

















 


1.1.106                    “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;


 


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


 


1.1.108                    “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;


 


1.1.109                    “LC Indemnitees” has the meaning defined in Section 3.3.6.1;


 


1.1.110                    “Lender Swing Line Repayment” has the meaning defined in Section 3.4.6;


 


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


 


1.1.112                    “Letter of Credit” means any documentary letter of credit,
stand-by letter of credit and letter of guarantee issued by the Issuing Lender
in accordance with the provisions hereof;


 


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1.1.113                    “Letter of Credit Fee” means the fee payable to the
Issuing Lender upon issuance or renewal of each Letter of Credit issued by the
Issuing Lender hereunder calculated in accordance with Section 2.7 and Section 3.3.2;


 


1.1.114                    “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 Libor0l 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;


 


1.1.115                    “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;


 


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


 


1.1.117                    “Lien” means:


 


1.1.117.1                 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;


 


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


 


1.1.117.3                 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;


 


21

















 


1.1.117.4                 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


 


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


 


and “Liens” shall have
corresponding meaning;


 


1.1.118                    “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;


 


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


 


1.1.120                    “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


 


22

















 


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;


 


1.1.121                    “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;


 


1.1.122                    “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;


 


1.1.123                    “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;


 


1.1.124                    “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;


 


1.1.125                    “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 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


 


23

















 


Majority Lenders, have consented in writing to such Subsidiary no
longer being a “Material Subsidiary”;


 


1.1.126                    “Maturity Date” means January 10, 2013, or if such date
has been extended in accordance with the terms of Section 2.5, such
extended date;


 


1.1.127                    “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;


 


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


 


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


 


1.1.130                    “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:


 


1.1.130.1                 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;


 


1.1.130.2                 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


 


1.1.130.3                 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;


 


24














 


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


 


1.1.132                    “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, 3.2 or 3.3 or subsection 5.1.1;


 


1.1.133                    “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;


 


1.1.134                    “Obligors” means the Borrower and the Guarantors;


 


1.1.135                    “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;


 


1.1.136                    “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 2.5.7, 6.5.2.5 or 19.3.3.2;


 


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


 


1.1.138                    “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;


 


25

















 


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


 


1.1.140                    “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;


 


1.1.141                    “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;


 


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


 


1.1.143                    “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;


 


26

















 


1.1.144                    “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;


 


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


 


1.1.145.1                 the Loan
Obligations;


 


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


 


1.1.145.3                 the Guarantees;


 


1.1.145.4                 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;


 


1.1.145.5                 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;


 


1.1.145.6                 Debt secured by Permitted
Liens;


 


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


 


1.1.145.8                 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);


 


27

















 


1.1.145.9                 Subordinated Debt;


 


1.1.145.10               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;


 


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


 


1.1.145.12               unsecured Debt under the
Second Credit Agreement; and


 


1.1.145.13               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 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);


 


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


 


1.1.146.1                 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;


 


1.1.146.2                 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;


 


28

















 


1.1.146.3                 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;


 


1.1.146.4                 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;


 


1.1.146.5                 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;


 


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


 


1.1.146.7                 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;


 


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


 


1.1.146.9                 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;


 


1.1.146.10               without duplicating
subsections 1.1.146.8 and 1.1.146.11, 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;


 


29

















 


1.1.146.11               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;


 


1.1.146.12               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;


 


1.1.146.13               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 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);


 


1.1.146.14               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


 


30

















 


replacement is limited to the property originally
encumbered thereby;


 


1.1.147                    “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;


 


1.1.148                    “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;


 


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


 


1.1.150                    “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;


 


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


 


1.1.152                    “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;


 


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


 


1.1.154                    “Principal Jurisdiction” means each of Austria,
Belgium, Denmark, Finland, France, Germany, Ireland, Italy,


 


31

















 


Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland
and the United Kingdom;


 


1.1.155                    “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;


 


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


 


1.1.157                    “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;


 


1.1.158                    “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);


 


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


 


1.1.160                    “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;


 


1.1.161                    “Resigning Issuing Lender” has the meaning defined in Section 3.3.6.5;


 


1.1.162                    “Retiring Swing Line Lender” has the meaning defined in Section 3.4.5;


 


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


 


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


 


1.1.165                    “Schedule II Reference Lender” means Société Générale
(Canada Branch) or any other Lender 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


 


32

















 


Section 524(2) thereof, appointed by the Agent from time to
time with the consent of the Borrower in replacement of such Lender;


 


1.1.166                    “Second Credit Agreement” means 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 the lenders from time to time
party thereto;


 


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


 


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


 


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


 


1.1.170                    “Selected Amount” means:


 


1.1.170.1                 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


 


1.1.170.2                 with respect to a Libor
Advance, the amount that the Borrower has requested be advanced in accordance
with Section 3.2;


 


1.1.171                    “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;


 


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


 


1.1.173                    “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


 


33

















 


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;


 


1.1.174                    “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);


 


1.1.175                    “Substitute Lenders” has the meaning defined in Section 19.3.3.3;


 


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


 


1.1.177                    “Successor Issuing Lender” has the meaning defined in Section 3.3.6.5;


 


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


 


1.1.179                    “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;


 


1.1.180                    “Swing Line Advances” means overdrafts incurred in
the Canadian Dollar and US Dollar accounts of the Borrower with the Swing Line
Lender, each of which shall be deemed to be, as applicable, a Prime Rate
Advance or a US Base Rate Advance made by the Swing Line Lender to the Borrower
and the aggregate of which shall at no time exceed the Swing Line Limit;


 


1.1.181                    “Swing Line Lender” means The Bank of Nova
Scotia, and any successor thereof appointed pursuant to Section 3.4;


 


1.1.182                    “Swing Line Limit” means US$10,000,000 or the equivalent thereof
in Canadian Dollars;


 


34














 


1.1.183                    “Swing Line Loan” means, at any time, the aggregate of the
Swing Line Advances outstanding at any time in accordance with the provisions
hereof, together with any amount of interest payable to the Swing Line Lender
by the Borrower pursuant thereto;


 


1.1.184                    “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;


 


1.1.185                    “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.


 


1.1.186                    “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;


 


1.1.187                    “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);


 


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


 


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


 


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


 


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


 


1.1.192                    “Transferred Letters of Credit” means (i) the
Irrevocable Standby Letter of Credit (No: SI8572/276660) in an amount not to
exceed C$6,750,000 in favour of the Receiver General for Canada on behalf of
Fisheries and Oceans Canada issued on August 12, 2008 by The Bank of Nova
Scotia, (ii) the Irrevocable Standby Letter of Credit (No: SI8572/277309)
in an amount not to exceed C$26,000,000 in favour of Her Majesty the Queen in
the Right of Canada as represented by the Minister of Indian Affairs and
Northern Development


 


35

















 


issued on August 8, 2008 by The Bank of Nova Scotia, and (iii) the
Irrevocable Standby Letter of Credit (No: SI8572/276888) in an amount not to
exceed C$14,900,000 in favour of the Kivalliq Inuit Association issued on July 28,
2008 by The Bank of Nova Scotia;


 


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


 


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


 


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


 


1.1.196                    “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;


 


1.1.197                    “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;


 


1.1.198                    “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;


 


1.1.199                    “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;


 


1.1.200                    “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


 


36

















 


on which any payment or any calculation must be made pursuant to this
Agreement;


 


1.1.201                    “USA” means the
United States of America.


 


1.2        Interpretation


 


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


 


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


 


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


 


37

















 


amendments to the provisions of this Agreement that
relate to the calculation of such covenant with the intent of having the
respective positions of the Lenders and the Borrower after such change in GAAP
conform as nearly as possible to their respective positions as of the date of
this Agreement.


 


1.5       Division
and Titles


 


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


 


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 a
further 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. Except as set out in Section 1.8, 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.


 


1.8       Letters of Credit


 


The parties hereto acknowledge and agree that the
Transferred Letters of Credit, which are currently issued and outstanding under
the Existing Credit Agreement, shall not constitute Letters of Credit or
Advances hereunder.


 


38

















 


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$300,000,000 or the equivalent
thereof in Canadian Dollars, as the same may be reduced in accordance with the
terms hereof (the “Credit Facility”), provided
however, that to the extent that any Swing Line Advances have been made or
remain outstanding, the amount available under the Credit Facility shall be
deemed to be reduced by the amount of such Swing Line Advances.


 


2.2        Availment Options under Credit
Facility


 


At the option of the Borrower:


 


2.2.1                        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;


 


2.2.2                        the Credit
Facility may be utilized by the Borrower by:


 


2.2.2.1                     requesting that Letters of
Credit in Canadian Dollars, US Dollars or Euros be issued by the Issuing
Lender, provided however, that the aggregate face amount of Letters of Credit
outstanding at any time shall not exceed US$100,000,000 or the equivalent
thereof in Canadian Dollars or Euros; or


 


2.2.2.2                     by incurring overdrafts in
its Canadian Dollar and US Dollar accounts with the Swing Line Lender to an
aggregate maximum, at any time, not to exceed the Swing Line Limit or the
equivalent thereof in Canadian Dollars.


 


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.


 


39

















 


2.5        Term and Repayment


 


2.5.1                        Unless due and
payable sooner in accordance with this Agreement, all Loan Obligations shall be
due and payable on January 10, 2013, unless this Agreement is extended,
upon the irrevocable request of the Borrower (which request may be made at its
option), with the consent of the Majority Lenders, in their sole discretion,
for additional one year terms in accordance with this Section 2.5.


 


2.5.2                        Each request
for an extension of this Agreement must be made by the Borrower (if it wishes
to exercise its option to make such request) providing the Agent with
irrevocable written notice of such request at least 60, but not more than 90,
days before the applicable anniversary date of the Closing Date. If the
Majority Lenders consent to a request for any such extension in accordance with
this Section 2.5, the Maturity Date shall be extended by one year and,
unless due and payable sooner in accordance with this Agreement, all Loan
Obligations shall be due and payable on the Maturity Date, as so extended, and
all Commitments shall be cancelled at such extended time.


 


2.5.3                        Upon receipt by
the Agent of any such request by the Borrower for an extension of this
Agreement, the Agent shall provide prompt written notice of such request to
each Lender. Each Lender’s determination of whether or not it consents to such
extension shall be made in such Lender’s sole discretion. If a Lender has not
provided the Agent with written notice of whether or not such Lender consents
to such requested extension 30 days after written notice of such request has
been provided by the Agent to such Lender, such Lender shall be irrevocably
deemed to have not consented to such extension.


 


2.5.4                        If the Majority
Lenders consent to any extension requested by the Borrower pursuant to this Section 2.5,
but any Lender does not so consent, that dissenting Lender (if it is still a
Lender at the relevant time) shall not be entitled to vote on any extensions
subsequently requested by the Borrower pursuant to this Section 2.5 (and
the denominator in the definition of Majority Lender shall, for such purpose,
be reduced by such Lender’s Commitment).


 


2.5.5                        If the Majority
Lenders consent to any requested extension of this Agreement pursuant to this Section 2.5,
but any Lender does not so consent, the Borrower may require that:


 


40

















 


2.5.5.1                     any such dissenting Lender
assign its Commitment in accordance with Section 18.2;


 


2.5.5.2                     the Commitment of any such
dissenting Lender be permitted to terminate at the end of the then current term
of this Agreement (with the maximum amount of the Credit Facility reducing by
the amount of such Lender’s Commitment at that time); or


 


2.5.5.3                     such dissenting Lender’s
Commitments immediately terminate.


 


2.5.6                        In the case of
subsection 2.5.5.3, the Borrower shall immediately repay such Lender its pro rata share of all outstanding
Advances, together with all other amounts owing by the Borrower to that Lender
under Section 7.1, and upon receipt by such Lender of such amount such
Lender’s Commitment shall be cancelled (and the maximum amount of the Credit
Facility shall be reduced by the amount of such Lender’s Commitment at that
time).


 


2.5.7                        Any assigning
Lender (in the case of subsection 2.5.5.1) or any Lender whose Commitments
terminate before the Maturity Date (in the case of subsection 2.5.5.3) shall,
upon such assignment or termination, if such assigning Lender, or its
applicable Affiliate, is a party to a Derivative Instrument with an Obligor,
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 Eligible 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.


 


2.5.8                        If the Majority
Lenders do not consent to any extension requested by the Borrower pursuant to
the foregoing procedures, all Loan Obligations shall, unless due and payable
sooner in accordance with this Agreement, be due and payable on the Maturity
Date then in effect and all remaining Commitments shall be cancelled at such
time.


 


41

















 


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 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, the Letter of Credit Fee rate and the Standby Fee rate shall
vary and be calculated based on the Total Net Debt to EBITDA Ratio as follows:


 


	
  Total Net Debt

  	
   

  	
  Libor / Stamping

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  to EBITDA

  	
   

  	
  Fees / Letter of

  	
   

  	
  Base Rate or

  	
   

  	
  Standby

  	
   

  
	
  Ratio

  	
   

  	
  Credit Fee

  	
   

  	
  Prime Rate

  	
   

  	
  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

  	
  %

  



 


42














 


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. The Letter of
Credit Fee 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 any Compliance Certificate which is delivered
after the relevant Reporting Date, the Agent shall determine the amount of any
overpayment or underpayment of interest or Letter of Credit Fees 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


 


43

















 


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 or Letter of Credit
Fees as they become 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 or Letter of Credit Fees as they become 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, Letter of Credit Fees and
Standby Fees received by the Agent shall be promptly distributed by the Agent
to the Lenders in accordance with their respective Applicable Percentages.


 


44

















 


2.8           Annual Agency Fees


 


The Borrower shall pay to
the Agent, inter alia, the annual
agency fee provided in the Agency Fee Letter.


 


2.9           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 2.10 shall result in any permanent
reduction in the Credit Facility.


 


2.10         Pro-Rata Utilizations


 


2.10.1                      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:


 


2.10.1.1                   repay an amount under this Agreement;


 


2.10.1.2                   repay an amount under the Second Credit
Agreement;


 


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


 


2.10.1.4                   subject to the terms and conditions of
the Second Credit Agreement, obtain an Advance or Advances (as such term is defined
in the Second Credit Agreement on the date hereof);


 


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


 


2.10.2                      If Advances (as such term is defined in
the Second Credit Agreement on the date hereof) are otherwise available under the
Second Credit Agreement to the Borrower, to the extent


 


45

















 


that
there exist Advances by way of the issuance of Letters of Credit outstanding
hereunder, the Borrower will not request any further Advances hereunder, other
than Advances by way of the issuance of Letters of Credit or Swing Line
Advances, unless and until the aggregate outstanding amount of Advances (as
such term is defined in the Second Credit Agreement on the date hereof) under
the Second Credit Agreement are sufficient to comply with Section 2.10.1
without reference to this sentence. Under no circumstances shall the Borrower
be required pursuant to this Section 2.10 to request an Advance (as such
term is defined in the Second Credit Agreement on the date hereof) under the
Second Credit Agreement 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 hereunder. Nothing in this Section 2.10
shall limit the Borrower’s ability to have outstanding Advances that are
Letters of Credit or Swing Line Advances hereunder or to incur Advances that
are Letters of Credit or Swing Line Advances.


 


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 (other than the Swing Line
Advance, which shall be made in accordance with the provisions of Section 3.4)
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, Letters of Credit, Swing Line Advances and BA Advances shall be given
in accordance with the provisions of Sections 3.2, 3.3, 3.4 and 5.1,
respectively.


 


3.2           LIBOR Advances and
Conversions


 


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


 


46

















 


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 3.2, the Borrower shall be deemed to have given notice for a
US Base Rate Advance.


 


3.3           Letters of Credit


 


3.3.1                        Issuance. Subject to the applicable provisions of this
Agreement, on any Business Day, as part of the credit available under the
Credit Facility, upon delivery of a Notice of Borrowing to the Agent three
Business Days’ prior to the requested issuance of a Letter of Credit (or such
longer period of time as the Issuing Lender may reasonably require to settle
the form of the proposed Letter of Credit), the Borrower may request to be
issued by the Issuing Lender on behalf of the Lenders one or more Letters of
Credit in a maximum aggregate amount outstanding at any time not exceeding
US$100,000,000 or the equivalent thereof in Canadian Dollars or Euros. Each
Letter of Credit shall be issued in Canadian Dollars, US Dollars or Euros.
Concurrently with the delivery of a Notice of Borrowing requesting a Letter of
Credit, the Borrower shall execute and deliver to the Issuing Lender the
documents required by the Issuing Lender in respect of the requested type of
Letter of Credit, including a Letter of Credit application and indemnity on the
Issuing Lender’s standard forms or as is otherwise required by the Issuing
Lender. In the event of any conflict between the provisions of this Agreement
and the provisions of any document relating to a Letter of Credit, the
provisions of this Agreement shall govern and prevail. Each Letter of Credit
shall have a term of not more than one year and shall otherwise be in form and
substance satisfactory to the Issuing Lender, acting reasonably, provided
however, that each Letter of Credit having a term which expires after the
Maturity Date shall be escrowed in accordance with Section 15.4 not more
than five Business Days prior to the Maturity Date. The Issuing Lender shall
not be required to issue any Letter of Credit if such issuance would breach any
Applicable Law or any internal policy of the Issuing Lender.


 


3.3.2                        Fees. On the first Business Day following completion of
each fiscal quarter of the Borrower, the Borrower shall pay to the Agent in
arrears:


 


47

















 


3.3.2.1                     for the account of the Lenders, a Letter
of Credit Fee calculated at the rate specified in Section 2.7 on the
undrawn face amount of each outstanding Letter of Credit for the actual number
of days to elapse from and including the date of issuance or renewal, as
applicable, of the Letter of Credit to but excluding the expiry date of such
Letter of Credit, calculated on the basis of a 365 or 366 day year, as
applicable, which fee shall be non-refundable in whole or in part; and


 


3.3.2.2                     for the account of the Issuing Lender,
the Fronting Fee in an amount equal to 0.40% per annum on the portion of the
undrawn face amount of each outstanding Letter of Credit issued by the Issuing
Lender which is attributable to Lenders other than the Issuing Lender, for the
actual number of days to elapse from and including the date of issuance or
renewal, as applicable, of the Letter of Credit to but excluding the expiry
date of such Letter of Credit, calculated on the basis of a year of 365 or 366
days, as applicable, which fee shall be non-refundable in whole or in part;


 


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, such
fees shall be based on the Total Net Debt to EBITDA Ratio reported in the
Compliance Certificate delivered by the Borrower on the Effective Date.


 


3.3.3                        Additional Fees. The Borrower shall also pay or reimburse
the Issuing Lender for all customary administrative, issuance, amendment,
payment and negotiation fees paid, payable or charged by the Issuing Lender in
connection with any Letter of Credit issued by it.


 


3.3.4                        General Provisions Relating to Letters of
Credit.


 


3.3.4.1                     The Issuing Lender shall not be liable
for the consequences arising from any mutilation, error, omission, interruption
or delay or loss in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. Subject
to the immediately preceding sentence, in furtherance and extension and not in
limitation of the specific provisions of this Section 3.3 (a) any
action taken or omitted by


 


48

















 


the Issuing Lender
or any of its respective correspondents under or in connection with any of the
Letters of Credit, if taken or omitted in good faith and in conformity with
Applicable Law or customs applicable thereto, shall be binding upon the
Borrower and shall not put the Issuing Lender or its respective correspondents
under any resulting liability to the Borrower and (b) the Issuing Lender
may accept documents in good faith and in conformity with Applicable Law or
customs applicable thereto relating to Letters of Credit, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and may make payment upon presentation of such
documents, provided that the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and decline to make such
payment if such documents are not in strict compliance with the terms of such
Letter of Credit. Without limiting the generality of the foregoing, the Issuing
Lender may receive, accept, or pay as complying with the terms of any Letter of
Credit, any demand in relation thereto otherwise in order which may be signed
by, or issued to, any administrator, executor, trustee in bankruptcy, receiver
or other Person or entity acting as the representative or in place of, the
beneficiary.


 


3.3.4.2                     The Borrower acknowledges and confirms to
the Issuing Lender that the Issuing Lender shall not be obliged to make any
inquiry or investigation as to the right of any beneficiary to make any claim
or Draft or request any payment under a Letter of Credit and payment by the
Issuing Lender pursuant to a Letter of Credit shall not be withheld by the
Issuing Lender by reason of any matters in dispute between the beneficiary
thereof and the Borrower. The sole obligation of the Issuing Lender with
respect to Letters of Credit is to cause to be paid a Draft drawn or purporting
to be drawn in accordance with the terms of the applicable Letter of Credit and
for such purpose the Issuing Lender is only obliged to determine that the Draft
purports to comply with the terms and conditions of the relevant Letter of
Credit.


 


49

















 


3.3.4.3                     The Issuing Lender shall not have any
responsibility or liability for or any duty to inquire into the form,
sufficiency (other than to the extent provided in subsection 3.3.4.2),
authorization, execution, signature, endorsement, correctness (other than to
the extent provided in subsection 3.3.4.2), genuineness or legal effect of any
Draft, certificate or other document presented to it pursuant to a Letter of
Credit and the Borrower unconditionally assumes all risks with respect to the
same. The Borrower agrees that it assumes all risk of the acts or omissions of
the beneficiary of any Letter of Credit with respect to the use by the
beneficiary of the relevant Letter of Credit.


 


3.3.4.4                     The Borrower agrees that the Issuing Lender,
the Lenders and the Agent shall have no liability to it for any reason in
respect of or in connection with any Letter of Credit, the issuance thereof,
any payment thereunder, or any other action by any such Person or any other
Person in connection therewith, other than such liability arose on account of
the Issuing Lender’s gross negligence or wilful misconduct.


 


3.3.5                        Reimbursement Obligations. In the event of any drawing under a
Letter of Credit, the Issuing Lender shall promptly notify the Borrower who
shall immediately reimburse the amount drawn to the Issuing Lender in same day
funds. In the event that the Borrower fails to reimburse the Issuing Lender
after such notification and fails to provide a Notice of Borrowing with a
different option, the Borrower shall be deemed to have requested from, and
given notice to, the Agent of a Prime Rate Advance, if the Letter of Credit is
payable in Canadian Dollars, or a US Base Rate Advance, if the Letter of Credit
is payable in US Dollars or Euros (with any drawing under a Letter of Credit
payable in Euros being converted into US Dollars in accordance with the
provisions hereof), on the date and in the amount of the drawing, the proceeds
of which will be used to satisfy the reimbursement obligations of the Borrower
to the Lenders in respect of the drawing under such Letter of Credit. The
reimbursement obligations of the Borrower hereunder shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of:


 


50














 


3.3.5.1                     any lack of validity or enforceability of
any Letter of Credit or this Agreement or any term or provision therein or
herein;


 


3.3.5.2                     the existence of any claim, set-off,
compensation, defence or other right that the Borrower, any other Obligor or
any other Person may at any time have against the beneficiary under any Letter
of Credit, the Issuing Lender, the Agent, any Lender or any other Person,
whether in connection with this Agreement or any other related or unrelated
agreement or transaction;


 


3.3.5.3                     any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect;


 


3.3.5.4                     any dispute between or among the Obligors
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or any claims whatsoever of the Obligors
against any beneficiary of such Letter of Credit or any such transferee;


 


3.3.5.5                     the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
Letter of Credit or any of the rights or benefits thereunder or proceeds
thereof in whole or in part, which may prove to be invalid or ineffective for
any reason; and


 


3.3.5.6                     the occurrence of any event including the
commencement of legal proceedings to prohibit payment by the Issuing Lender of
a Letter of Credit.


 


The obligations of
the Borrower hereunder with respect to Letters of Credit shall remain in full
force and effect and shall apply to any amendment to or extension of the
expiration date of any Letter of Credit.


 


3.3.6                        Indemnification.


 


3.3.6.1                     The Borrower agrees to indemnify and hold
harmless the Issuing Lender and its Related Parties (collectively, the “LC Indemnitees”) from and against any and all losses, claims, damages and
liabilities which the LC Indemnitees may incur (or


 


51

















 


which
may be claimed against any Indemnitee) by any Person by reason of or in connection
with the issuance or transfer of or payment or failure to pay under any Letter
of Credit, provided that the foregoing indemnity will not, as to any
Indemnitee, apply to losses, claims, damages, liabilities or related expenses
to the extent they are found by a final, non-appealable judgment of a court to
arise from the gross negligence or wilful misconduct of such Indemnitee or the
failure of such Indemnitee to comply with the terms and conditions of such
Letter of Credit (subject to minor variations or discrepancies in the documents
presented in connection with such Letter of Credit).


 


3.3.6.2                     The Borrower agrees, as between the
Borrower and the Issuing Lender, that the Borrower shall assume all risks of
the acts, omissions or misuse by the beneficiary of any Letter of Credit.


 


3.3.6.3                     None of the Issuing Lender, the Agent or
any other Lender shall, in any way, be liable for any failure by the Issuing
Lender or anyone else to pay any drawing under any Letter of Credit as a result
of any action by any Governmental Authority or any other cause beyond the
control of the Issuing Lender.


 


3.3.6.4                     The obligations of the Borrower under
this Section 3.3 shall survive the termination of this Agreement. No acts
or omissions of any current or prior beneficiary of a Letter of Credit shall in
any way affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Agreement.


 


3.3.6.5                     The Issuing Lender may resign as such (a “Resigning Issuing Lender”) upon 15 days’ prior written notice
to the Agent and the Borrower, in which event the Agent, in consultation with
the Borrower, shall designate another Lender as the Issuing Lender. Upon
acceptance by another Lender of the appointment as the Issuing Lender (the “Successor Issuing Lender”), the Successor Issuing Lender shall
succeed to the rights, powers and duties of the Resigning Issuing Lender and
shall have all the rights and obligations of the Resigning Issuing Lender under
this Agreement and the other


 


52

















 


Loan
Documents. Unless otherwise agreed among the Successor Issuing Lender, the
Agent and the Borrower, the Successor Issuing Lender shall be paid the same
fees, in such capacity, as the Resigning Issuing Lender. Following the resignation
of the Resigning Issuing Lender, the Resigning Issuing Lender shall continue to
have all the rights and obligations of the Issuing Lender under this Agreement
and the other Loan Documents with respect to Letters of Credit issued by it
prior to such resignation, but the Resigning Issuing Lender shall not be
required to issue additional Letters of Credit. For avoidance of doubt, the
provisions of this Agreement relating to the Issuing Lender shall enure to the
benefit of the Resigning Issuing Lender as to any actions taken or omitted to
be taken by it (a) while it was the Issuing Lender under this Agreement or
(b) at any time with respect to Letters of Credit issued by the Issuing
Lender.


 


3.4           Swing Line Advances


 


3.4.1                        Subject to the applicable provisions of
this Agreement, the Swing Line Lender agrees to make Swing Line Advances to the
Borrower on any Business Day from time to time prior to the Maturity Date.
Swing Line Advances are available by way of incurring overdrafts in the
Borrower’s Canadian Dollar and US Dollar accounts with the Swing Line Lender,
with overdrafts in Canadian Dollars being deemed to be Prime Rate Advances and
overdrafts in US Dollars being deemed to be US Base Rate Advances.


 


3.4.2                        The Swing Line Lender shall ascertain the
net position of the Borrower’s accounts at the close of business daily. If the
net Canadian Dollar position is a debit in favour of the Swing Line Lender, the
debit will be deemed to be a Prime Rate Advance in the amount of the debit. If
the net US Dollar position is a debit in favour of the Swing Line Lender, the
debit will be deemed to be a US Base Rate Advance in the amount of the debit.
If a net position is a credit in favour of the Borrower, the credit will be
deemed to be a repayment of the Swing Line Advance by a Prime Rate Advance or
US Base Rate Advance, as the case may be, in the amount of the credit to the
extent of any principal amounts owing in respect thereof, and the Swing Line
Lender will pay such amount to the Agent for repayment of the Loan Obligations.
If, at any time, the aggregate of the


 


53

















 


Swing
Line Advances exceeds US$10,000,000 or the equivalent in Canadian Dollars, such
excess shall be immediately repaid by the Borrower. No repayments of any Swing
Line Advance shall be deemed to be a permanent reduction in the Credit
Facility.


 


3.4.3                        All interest payments and principal
repayments of or in respect of the Swing Line Loan shall be solely for the
account of the Swing Line Lender.


 


3.4.4                        Notwithstanding anything to the contrary
herein contained or contrary to the provisions of Applicable Law, if a Default
or Event of Default has occurred and is continuing or if any Swing Line Loan is
outstanding on the last day of each month, the Borrower shall be deemed to have
made a request for, as applicable, a Prime Rate Advance and/or a US Base Rate
Advance, and each Lender shall make, as applicable, a Prime Rate Advance and/or
a US Base Rate Advance available to the Agent for the purpose of repaying the
principal amount of the portion of the Swing Line Loan owed to the Swing Line
Lender, in the amount of such Lender’s Applicable Percentage multiplied by the
amount of the outstanding Swing Line Loan owing to the Swing Line Lender.


 


3.4.5                        If the Swing Line Lender no longer wishes
to act as such, it shall notify the Borrower, the other Lenders and the Agent
not less than 15 days prior to the date on which it proposes to cease acting as
the Swing Line Lender. In such event, the Agent, in consultation with the Borrower,
may designate another Lender as the Swing Line Lender by sending a notice to (a)
the Swing Line Lender who will no longer act as such (the “Retiring Swing Line Lender”) and (b) the proposed new Swing Line
Lender who has agreed to act as such, not less than five days prior to the date
on which the replacement is to occur. The new Swing Line Lender shall make, as
necessary, a Prime Rate Advance and/or a US Base Rate Advance available to the
Agent for the purpose of repaying the portion of the Swing Line Loan owed to
the Retiring Swing Line Lender.


 


3.4.6                        If an Event of Default has occurred,
other than an Event of Default under subsection 15.1.11, or if no Lender has
agreed to act as a replacement for the Retiring Swing Line Lender (in such
case, the Swing Line Lender is herein referred to as the “Former Swing Line Lender”), the Borrower shall be deemed to
have made a request for, as necessary, a Prime Rate Advance and/or a US Base
Rate Advance, and each Lender shall make, as necessary, a Prime Rate Advance
and/or a US


 


54

















 


Base Rate Advance
available to the Agent for the purpose of repaying the principal amount of the
portion of the Swing Line Loan owed to the Former Swing Line Lender, in the
amount of such Lender’s Applicable Percentage multiplied by the amount of the
outstanding Swing Line Loan owing to the Former Swing Line Lender (the “Lender Swing Line Repayments”). In such event, the Borrower’s right
to obtain Swing Line Advances will cease and the amounts outstanding thereunder
will continue to form part of the Loan Obligations. However, if a Default under
subsection 15.1.11 of this Agreement shall have occurred and be continuing, or
if an Event of Default under subsection 15.1.11 shall have occurred, the
Lenders shall not make such Lender Swing Line Repayments and the provisions of
subsection 3.4.7 shall apply.


 


3.4.7                        If, before the making of a Lender Swing
Line Repayment under subsection 3.4.6, a Default under subsection 15.1.11 shall
have occurred and be continuing or an Event of Default under subsection 15.1.11
shall have occurred, each Lender shall, on the date such Lender Swing Line
Repayment was to have been made, purchase from the Former Swing Line Lender an
undivided participating interest in the portion of the Swing Line Loans to be
repaid, in an amount equal to its Applicable Percentage multiplied by the
amount of the outstanding portion of the Swing Line Loan, and immediately
transfer such amount to the Agent for the benefit of the Former Swing Line
Lender, in immediately available funds. In such event, the Borrower’s right to
obtain Swing Line Advances will cease and the amounts outstanding thereunder
will continue to form part of the Loan Obligations. If at any time after any
Lender Swing Line Repayment has been made, the Former Swing Line Lender
receives any payment on account of the portion of the Swing Line Loan in
respect of which such Lender Swing Line Repayment has been made, the Former
Swing Line Lender will distribute to the Agent for the benefit of each Lender
an amount equal to its percentage Commitment multiplied by such amount
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s portion was outstanding and funded)
in like funds as received; provided, however, that if such payment received by
the Former Swing Line Lender is required to be returned, such Lender will
return to the Agent for the benefit of the Former Swing Line Lender any portion
thereof previously distributed by the Former Swing Line Lender to the Agent for
the benefit of such Lender in like funds as such payment is required to be
returned by such Former Swing Line Lender.


 


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3.4.8                        Each Lender’s obligation to make Lender
Swing Line Repayments or to purchase a participating interest in accordance
with subsections 3.4.6 and 3.4.7 shall be absolute and unconditional and shall
not be affected by any circumstance, including (a) any set-off,
compensation, counterclaim, recoupment, defence or other right which such
Lender may have against any Swing Line Lender, the Borrower, any other 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, any other Obligor or
any other Person, (d) any breach of this Agreement by the Borrower or any
other Person, (e) any inability of the Borrower to satisfy the conditions
precedent to borrowing set forth in this Agreement on any applicable Drawdown
Date for such Prime Rate Advance or US Base Rate Advance or participating
interest to be purchased, or (f) any other circumstances, happening or
event whatsoever, whether or not similar to any of the foregoing. If any Lender
does not make available the amount required under subsection 3.4.6 or 3.4.7, as
the case may be, the Former Swing Line Lender shall be entitled to recover such
amount on demand from such Lender, together with interest thereon, as
applicable, at the Prime Rate Basis or US Base Rate Basis, as applicable, at
such time from the date of non-payment until such amount is paid in full.


 


3.5           Defaulting Lenders


 


3.5.1                        If any Lender is a Defaulting Lender or
an Impacted Lender, the Issuing Lender shall not be obligated to issue Letters
of Credit, to the extent of such Defaulting Lender’s or Impacted Lender’s
Applicable Percentage thereof, unless arrangements satisfactory to the Issuing
Lender have been entered into with the Borrower or with the Defaulting Lender
or Impacted Lender (such as by way of depositing with the Agent, for the
benefit of the Issuing Lender, cash or Cash Equivalents) to eliminate the
Issuing Lender’s risk with respect to such Defaulting Lender or Impacted
Lender.


 


3.5.2                        If the available amount of Letters of
Credit is reduced pursuant to Section 3.5.1, the Letter of Credit Fee
payable by the Borrower under Section 3.3.2.1 shall be reduced by a
proportional amount, and the Defaulting Lender or Impacted Lender shall not be
entitled to such Letter of Credit Fee in respect of the period of time during
which such Lender is a Defaulting Lender or an Impacted Lender.


 


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3.5.3                        If any Lender is a Defaulting Lender or
an Impacted Lender, the Swing Line Lender shall not be obligated to make Swing
Line Loans, to the extent of such Defaulting Lender’s or Impacted Lender’s
Applicable Percentage thereof, unless arrangements satisfactory to the Swing
Line Lender have been entered into with the Borrower or with the Defaulting
Lender or Impacted Lender (such as by way of depositing with the Agent, for the
benefit of the Swing Line Lender, cash or Cash Equivalents) to eliminate the
Swing Line Lender’s risk with respect to such Defaulting Lender or Impacted
Lender.


 


3.5.4                        Notwithstanding anything to the contrary
in this Article 3, the provisions of Sections 3.5.1 and 3.5.3 shall not
apply to Letters of Credit or Swing Line Loans that are issued or are
outstanding, respectively.


 


3.6           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
Advances by way of issuance of Letters of Credit, and each Lender shall also
maintain records relating to Bankers’ Acceptances that it has accepted and the
Issuing Lender shall maintain records relating to Letters of Credit it has
issued. 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.


 


3.7           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.


 


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3.8           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.


 


3.9           Limits on BA Advances,
Letters of Credit and Libor Advances


 


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


 


4.             CALCULATION OF INTEREST
AND FEES


 


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


 


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


 


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


 


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


 


4.3           Calculation of Interest
on Libor Basis


 


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


 


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


 


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


 


4.5           Fixing of LIBOR


 


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


 


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


 


4.5.2                        the relevant rollover date of a Libor
Advance.


 


4.6           Interest on Miscellaneous Amounts


 


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


 


4.7           Default Interest


 


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


 


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.


 


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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 B A Advance or any part
thereof be extended, as the case may be (the “BA
Request”) by written
Notice of Borrowing to the Agent given at least four Business Days, before
10:00 a.m., prior to the date of the proposed Advance (for the purposes of
this Article 5 called the “Acceptance
Date”). BA Advances
shall be in a minimum amount of C$1,000,000 or C$100,000 multiples thereof.
Each Bankers’ Acceptance issued shall have a Designated Period of one, two,
three or six months (or such other period as may be available and acceptable to
the Lenders), and shall in no event mature on a date that is after the Maturity
Date.


 


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


 


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;


 


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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


 


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.


 


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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
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,


 


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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 or 19.6, 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


 


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Bankers’
Acceptance arising by reason of the gross negligence or wilful misconduct of
the Agent, the Lenders or their respective employees) and shall be paid
strictly in accordance with the provisions of this Agreement under all
circumstances, including the following circumstances:


 


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


 


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


 


5.11         Depository Bills and
Notes Act


 


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


 


6.             ILLEGALITY, INCREASED
COSTS, INDEMNIFICATION AND MARKET  DISRUPTIONS


 


6.1           Illegality


 


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


 


65

















 


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 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, any Letter of Credit, any participation
in a Letter of Credit 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 or any Letter of Credit or participation
therein;


 


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 increase the cost to such Lender or the Issuing Lender
of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (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


 


66

















 


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 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, or the
Letters of Credit issued or participated in by such Lender, to a level below
that which such Lender or its holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s policies and the
policies of its holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender or its holding company for any such
reduction suffered.


 


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


 


6.2.4                        Delay in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a waiver of such
Lender’s right to demand such compensation, except that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than six months prior to
the date that such Lender notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions


 


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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 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


 


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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
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


 


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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 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 and (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); 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


 


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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.


 


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 18.2.2.5;


 


6.5.2.2                     the assigning Lender receives payment of
an amount equal to the outstanding principal of its Advances and participations
in disbursements under Letters of Credit, 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);


 


71

















 


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 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


 


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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.


 


7.2           Imputation of
Prepayments


 


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


 


7.3           Currency of Payments


 


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


 


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


 


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


 


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


 


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


 


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7.4                                 Payments by the Borrower
to the Agent


 


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


 


7.5                                 Payment on a Business
Day


 


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


 


7.6                                 Payments by the Lenders
to the Agent


 


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


 


7.7                                 Netting


 


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


 


7.8                                 Application of Payments


 


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


 


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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 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


 


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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.


 


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


 


76

















 


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
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


 


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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 (including 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; and


 


9.1.7.4                                                               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;


 


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9.2.2                                                                        except in the case of Swing Line
Advances, the Agent shall have received a timely, completed Notice of
Borrowing;


 


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


 


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


 


9.3                                 Waiver of Conditions
Precedent


 


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


 


10.                               REPRESENTATIONS AND WARRANTIES


 


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


 


10.1                           Existence, Power and
Authority


 


It has the
corporate (or other equivalent) power and authority to enter into and perform
its obligations under each Loan Document to which it is a party, and except as
permitted under Section 14.10 after the 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)


 


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a
default under or require a consent under any Material Permit or any Material
Contract to which it is a party or by which it or its Property is bound, and (d) do
not and will not result in the creation of any Lien on any of its Property and
will not require it to create any Lien on any of its Property and will not
result in the forfeiture of any of its Property.


 


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


 


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


 


10.3                           Conduct of Business


 


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


 


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


 


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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 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


 


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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 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.


 


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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 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,


 


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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.


 


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


 


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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.


 


12.6         Financial Information


 


It shall ensure
that:


 


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


 


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


 


12.7         Compliance with
Applicable Law


 


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


 


12.8         Insurance


 


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


 


12.9         Payment of Taxes


 


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


 


12.10       Access and Inspection


 


It shall allow the
employees and representatives of the Agent and/or the Lenders, at any time
during normal business hours and on reasonable notice, to have access to and
inspect the Property of the Obligors (without any invasive or intrusive
testing), to inspect


 


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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, as well as one or more accounts
with the Swing Line Lender.


 


12.12       Performance of Obligations


 


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


 


12.13       Litigation


 


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


 


12.14       Payment of Fees and
Other Expenses


 


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


 


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


 


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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 or the Issuing 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


 


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deliver
a copy thereof when such filing is no longer confidential.


 


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


 


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


 


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no public announcement is
made, upon the occurrence of any such acquisition, and such information
relating to such acquisition as the Lenders may reasonably request in relation
thereto; and


 


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


 


14.          NEGATIVE COVENANTS


 


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


 


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.


 


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14.4         Distributions


 


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


 


14.5         Asset Dispositions


 


Make any Asset
Disposition of any Material Assets except:


 


14.5.1                      for sales of inventory;


 


14.5.2                      as permitted under Section 14.10;


 


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


 


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


 


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


 


14.7      Line of Business


 


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


 


14.8      Affiliate Transactions


 


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


 


14.9      Subordinated Debt


 


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


 


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;


 


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


 


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


 


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


 


(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


 


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


 


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


 


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


 


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


 


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occurrence of such invalidity or unenforceability, unless such
invalidity or unenforceability occurred as a result of a contest initiated,
acquiesced in or consented to by an Obligor; or


 


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


 


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


 


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


 


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


 


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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 Letters of
Credit and 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, as applicable, the Issuing Lender and each other Lender cash or
Cash Equivalents equal to the full face amount at maturity of all Letters of
Credit and Bankers’ Acceptances then outstanding for its account.


 


15.4.2                      On that day
which is 5 Business Days prior to the Maturity Date, the Borrower shall,
without necessity of further act or evidence, be and become unconditionally
obligated to deposit forthwith with the Agent for the benefit of the Issuing
Lender cash or Cash Equivalents equal to the full face amount at maturity of
all Letters of Credit then outstanding.


 


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


 


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


 


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15.4.5                      The Borrower
authorizes the Lenders, or any of them, to debit its accounts with the amount
required to pay such Letters of Credit and 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 and
Letters of Credit 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 and Letters of Credit, respectively, the
obligations of the Borrower to pay amounts then or thereafter payable under
Bankers’ Acceptances and Letters of Credit, respectively, 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.


 


15.4.6                      If the Agent
holds cash or Cash Equivalents in the amount of the full face amount of the
outstanding Letters of Credit and 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 15.4.5, and except for any obligations
herein which by their terms survive termination of this Agreement and which may
relate to such outstanding Letters of Credit and Bankers’ Acceptances, the
Borrower shall have no further obligations under or in connection with such
Letters of Credit or 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


 


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advisable in accordance with the terms of this Agreement, without in
any way diminishing the liability of the Obligors nor prejudicing the rights of
the Lenders hereunder.


 


15.7      Application of Proceeds


 


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


 


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


 


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may, without the consent of the Lenders, but for greater certainty
only, with the consent of the other parties hereto, make amendments to the Loan
Documents that are for the sole purpose of curing any immaterial or
administrative ambiguity, defect or inconsistency, but the Agent shall promptly
notify the Lenders of any such action.


 


16.2      Agent’s Responsibility


 


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


 


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with respect to such a Default or Event of Default as it shall deem
advisable in the best interest of the Lenders. The Agent shall not be required
to take any action that, in its opinion or in the opinion of its counsel, may
expose the Agent to liability or that is contrary to any Loan Document or
Applicable Law.


 


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


 


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


 


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


 


16.4      Indemnity by Lenders


 


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


 


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to reimburse the Agent for such amount on demand, from the Borrower.


 


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


 


16.7      Notice by Lenders to Agent


 


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


 


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 Agency
Fee Letter and the Fee Letter) and whether received by voluntary payment, by
the exercise of the right of set-off or compensation or by counterclaim,
cross-claim, separate action or as proceeds of realization of any security:


 


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


 


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


 


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


 


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


 


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


 


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such amounts available to the Borrower on the Drawdown Date, at the
Branch, and, in the absence of other arrangements made in writing between the
Agent and the Borrower, by transferring or causing to be transferred an
equivalent amount in the case of a Prime Rate Advance, US Base Rate Advance,
Libor Advance and the Available Proceeds in the case of Bankers’ Acceptances,
in accordance with the instructions of the Borrower which appear in the Notice
of Borrowing with respect to each Advance; however, the obligation of the Agent
with respect hereto is limited to taking the steps judged commercially
reasonable in order to follow such instructions, and once undertaken, such
steps shall constitute prima facie evidence that the amounts have been
disbursed in accordance with the applicable provisions. Subject to the
foregoing sentence, the Agent shall not be liable for damages, claims or costs
imputed to the Borrower and resulting from the fact that the amount of an
Advance did not arrive at its agreed-upon destination.


 


16.10    Non-Payment by Lenders


 


If any Lender shall fail to make any payment required to be made by it
hereunder to the Agent, the Issuing Lender or the Swing Line Lender, 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, the Issuing Lender or the Swing
Line Lender 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 3.6)
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.


 


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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, no
amendment, modification or waiver of any provision of any Loan Document dealing
with the rights and duties of the Issuing Lender shall be taken without the
written consent of the Issuing Lender, and no amendment, modification or waiver
of any provision of any Loan Document dealing with the rights and duties of the
Swing Line Lender shall be taken without the written consent of the Swing Line
Lender. 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, 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 (other than as set out in Section 2.5), (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.


 


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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 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, the Issuing Lender
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


 


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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 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


 


110

















 


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


 


17.2.2                      at any other
time when such a calculation or determination under this Agreement (including Section 2.9)
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.


 


 


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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 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 Issuing Lender (such approval not to be unreasonably
withheld or delayed, unless the Person that is the proposed assignee has a
credit rating of less than BBB by S&P or Baa2 by Moody’s, in which case,
such approval to be in the Issuing Lender’s sole discretion), unless the Person
that is the proposed


 


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assignee is itself already a Lender with a
Commitment under this Agreement;


 


18.2.2.4                   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


 


18.2.2.5                   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 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


 


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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 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


 


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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 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 and the Issuing Lender
hereunder may be delivered or furnished by electronic


 


115

















 


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 or
Letters of Credit to be issued 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


 


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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 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


 


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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 (subject to Section 18.2.2.2) and the Issuing Lender
(subject to Section 18.2.2.3), 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


 


119

















 


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. As concerns any Letter of Credit that otherwise
would be subject to prepayment pursuant to this Section 19.3.3.4, the
Borrower shall forthwith pay to the Issuing Lender an amount equal to the
aggregate contingent liability of the relevant Declining Lenders under such
Letter of Credit, such amount to be held by the Issuing Lender subject to Section 15.4.


 


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.


 


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.


 


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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 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


 


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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.


 


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


 


122

















 


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.


 


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 Second 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


 


123

















 


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 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.


 


19.17  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


 


124

















 


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.


 


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.


 


125

















 


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.


 


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]


 


126

















 


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 Agnico-Eagle
Mines Limited 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 Agnico-Eagle Mines Limited et al.]


 


S-2

















 


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 Agnico-Eagle Mines Limited et al.]


 


S-3

















 


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, 8th Floor

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ Rohan Appadurai

  
	
  M5K 1A2  

  	
   

  	
   

  	
  Name:

  	
  Rohan Appadurai

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
  Attention: Rohan Appadurai

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile: (416) 944-5164

  	
   

  	
  By:

  	
  /s/ Liza Straker

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Liza Straker

  
	
   

  	
   

  	
   

  	
  Title:

  	
  VP, Credit Management

  



 


[signature page for Amended
and Restated Credit Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-4














 


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

  	
   

  	
   

  
	
  5th floor

  	
   

  	
  By:

  	
  /s/ Roch Ledoux

  
	
  Montreal, Quebec

  	
   

  	
   

  	
  Name:

  	
  Roch Ledoux

  
	
  H3B 4S9

  	
   

  	
   

  	
  Title:

  	
  Directeur-Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Roch Ledoux

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Alain Aubin

  
	
  Facsimile:  (514) 390-7860

  	
   

  	
   

  	
  Name:

  	
  Alain Aubin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Directeur-Director

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-5

















 


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


 


	
  Address
  For Notice  

  	
   

  	
  BANK OF
  MONTREAL

  
	
   

  	
   

  	
   

  
	
  Loan Products Group

  	
   

  	
   

  
	
  100 King Street West

  	
   

  	
   

  
	
  4th Floor

  	
   

  	
  By:

  	
  /s/ R. Wright

  
	
  Toronto, Ontario

  	
   

  	
   

  	
  Name:

  	
  R. Wright

  
	
  M5X 1A1

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Robert Wright

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Facsimile:  (416) 359-7796

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-6

















 


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


 


	
  Address
  For Notice  

  	
   

  	
  N M ROTHSCHILD & SONS
  LIMITED

  
	
   

  	
   

  	
   

  
	
  New Court 

  	
   

  	
   

  
	
  St. Swithin’s Lane

  	
   

  	
   

  
	
  London, England

  	
   

  	
  By:

  	
  /s/ C. Coleman

  
	
  EC4P 4DU

  	
   

  	
   

  	
  Name:

  	
  C. Coleman

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attention:  Andrew Johnson / Patrick  McCormack  

  	
   

  	
  By:

  	
  /s/ Nicholas Wood

  
	
  Facsimile:  +44 20 7280 5403

  	
   

  	
   

  	
  Name:

  	
  Nicholas Wood

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-7

















 


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

  	
   

  	
   

  
	
  M5C 2Y7

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
  Title:

  	
  General Counsel, Senior Vice-President Legal 

  
	
   

  	
   

  	
   

  	
   

  	
  and Corporate Secretary

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-8

















 


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
  

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-9

















 


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
  

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-10

















 


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


 


	
  Address
  For Notice  

  	
   

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

  
	
   

  	
   

  	
   

  
	
  c/o Agnico-Eagle Mines
  Limited

  	
   

  	
   

  
	
  145 King Street East, Suite 400
  

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-11

















 


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


 


	
  Address
  For Notice  

  	
   

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

  
	
   

  	
   

  	
   

  
	
  c/o Agnico-Eagle Mines
  Limited

  	
   

  	
   

  
	
  145 King Street East, Suite 400
  

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-12














 


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


 


	
  Address
  For Notice  

  	
   

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

  
	
   

  	
   

  	
   

  
	
  c/o Agnico-Eagle Mines
  Limited

  	
   

  	
   

  
	
  145 King Street East, Suite 400
  

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-13

















 


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


 


	
  Address
  For Notice  

  	
   

  	
  AGNICO-EAGLE
  SWEDEN AB

  
	
   

  	
   

  	
   

  
	
  c/o Agnico-Eagle Mines Limited

  	
   

  	
   

  
	
  145 King Street East, Suite 400
  

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited 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
  AB

  
	
   

  	
   

  	
   

  
	
  c/o Agnico-Eagle Mines
  Limited

  	
   

  	
   

  
	
  145 King Street East, Suite 400
  

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-15

















 


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


 


	
  Address
  For Notice  

  	
   

  	
  RIDDARHYTTAN
  RESOUCES AB

  
	
   

  	
   

  	
   

  
	
  c/o Agnico-Eagle Mines
  Limited

  	
   

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-16

















 


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


 


	
  Address
  For Notice  

  	
   

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

  
	
   

  	
   

  	
   

  
	
  c/o Agnico-Eagle Mines
  Limited

  	
   

  	
   

  
	
  145 King Street East, Suite 400

  	
   

  	
   

  
	
  Toronto, Ontario

  	
   

  	
  By:

  	
  /s/ R. Gregory Laing

  
	
  M5C 2Y7

  	
   

  	
   

  	
  Name:

  	
  R. Gregory Laing

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
  Attention:  David Garofalo

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  (416) 367-4681

  	
   

  	
   

  	
   

  	
   

  



 


[signature page for Amended and Restated Credit
Agreement relating to Agnico-Eagle Mines Limited et al.]


 


S-17

















 


EXHIBIT A


COMMITMENTS


 




	
  Lender

  	
   

  	
  Commitment

  	
   

  
	
  The Bank of Nova Scotia

  	
   

  	
  US$

  	
  115,000,000

  	
   

  
	
  Société Générale (Canada Branch)

  	
   

  	
  US$

  	
  50,000,000

  	
   

  
	
  The Toronto-Dominion Bank

  	
   

  	
  US$

  	
  65,000,000

  	
   

  
	
  National Bank of Canada

  	
   

  	
  US$

  	
  30,000,000

  	
   

  
	
  Bank of Montreal

  	
   

  	
  US$

  	
  25,000,000

  	
   

  
	
  N M Rothschild & Sons Limited

  	
   

  	
  US$

  	
  15,000,000

  	
   

  






 

















 


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.


 


	
  1.

  	
  Assignor:

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower(s):

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Agent:

  	
   

  
	
   

  	
   

  	
  as the administrative
  agent under the Credit Agreement

  



 






(1) Select as applicable.


 

















 


	
  5.

  	
  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]

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned
  Interest:

  	
   

  



 


	
  Aggregate
  Amount of

  Commitment/Loans for all

  Lenders(2)

  	
   

  	
  Amount of

  Commitment/ Loans

  Assigned

  	
   

  	
  Percentage Assigned of

  Commitment/Loans(3)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


	
  7.

  	
  [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 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


 


[                                        ](7)


 


STANDARD
TERMS AND CONDITIONS FOR


 


ASSIGNMENT
AND ASSUMPTION


 


1.             Representations
and Warranties.


 


1.1           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(8), (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.


 


1.2           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(9),
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 Documents, and (ii) it will perform in
accordance with their terms all of the


 






(7)   Describe Credit Agreement at option of Agent.


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


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


 

















 


obligations
which by the terms of the Loan Documents are required to be performed by it as
a Lender.


 


2.             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.


 


3.             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


 


2

















 


EXHIBIT D


NOTICE OF
BORROWING AND CERTIFICATE


 


[See Sections 3.1, 3.2, 3.3 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 co-lead arranger,
Société Générale (Canada Branch), as co-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$·)/ US · dollars (US$·)/ · Euros (€$·) (in respect of Letters of Credit only)]; 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

  	
   

  	
   

  
	
  Letter
  of Credit

  	
   

  	
   

  	
   

  
	
  Nominal amount and currency:

  	
   

  	
   

  
					



 

















 


	
  Issue
  date:

  	
   

  
	
  Expiry
  date:

  	
   

  
	
  Name
  and Address of Beneficiary:

  	
   

  
	
  Purpose

  	
   

  
	
  [Note: attach proposed form or details]

  	
   

  



 


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]:


 


2.


 


	
  Banker’s
  Acceptances

  	
   

  	
   

  	
  (    )

  
	
  Selected Amount:

  	
  C$

  	
   

  	
   

  
	
  Designated Period

  	
   

  	
   

  
	
  Libor
  Advance

  	
   

  	
   

  	
  (    )

  
	
  Selected Amount

  	
  US$

  	
   

  	
   

  
	
  Designated Period

  	
   

  	
   

  
					



 


3.            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:


 


2

















 


	
  (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
                               .

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (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 co-lead arranger, Société Générate (Canada Branch), as
co-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 co-lead arranger, Société Générate (Canada Branch), as
co-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

  
	
  Caterpillar
  Financial Services 

  	
   

  	
  Registered
  September 25, 2007 

  	
   

  	
  Four
  Caterpillar motor 

  



 

















 


	
  Limited

  	
   

  	
  (expiry
  September 25, 2010)

  under Registration No. 939036D

  	
   

  	
  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 l4, 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 l4, 2011)

  under Registration No. 122085

  	
   

  	
  One
  Caterpillar motor vehicle

  
	
  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

  	
   

  	
  Registered
  October 20, 2008

  	
   

  	
  One
  Caterpillar motor

  



 


2

















 


	
  Toromont
  Industries Ltd.

  	
   

  	
  (expiry
  October 20, 2010)

  under Registration No. 127274

  	
   

  	
  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

  
	
  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

  



 


3

















 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  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 Fl50, 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

  
	
  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 F150, serial

  #1FTRF14W08KB60048

  



 


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 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 F150, serial

  #1FTRF14WX8KB69517

  2008
  Ford F150, serial

  #1FTRF14W68KB60507

  2008
  Ford Fl50, 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

  
	
  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

  



 


5

















 


	
  Secured Party

  	
   

  	
  Registration Details

  	
   

  	
  Collateral

  
	
  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

  
	
  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

  



 


6














 


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