SECRETARY'S CERTIFICATE OF TORCHLIGHT MINING CORP.
Delivered in connection with the issuance of $300,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029
April 19, 2022
I, Deepak Rathore, in my capacity as General Counsel and Corporate Secretary of Torchlight Mining Corp., a corporation duly incorporated and existing under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the "CBCA") (the "Company"), and not in my individual capacity, do hereby certify as follows in connection with the transactions described below.
The full legal name of the Company is Torchlight Mining Corp. The Company's principal executive offices and headquarters are located at 2200 – 400 Burrard Street, Vancouver, British Columbia V6C 3A6, Canada. The registered office of the Company is located at 1600 – 925 West Georgia Street, Vancouver, British Columbia V6C 3L2, Canada.
This Secretary's Certificate (this "Certificate") is delivered pursuant to Section 7.01(f) of that certain Purchase Agreement dated March 29, 2022 (as amended, supplemented, or otherwise modified from time to time, the "Purchase Agreement"), among (i) the Company, (ii) Wolverine Lake Mining Ltd., a corporation incorporated under the Ontario Business Corporations Act ("Wolverine Lake Mining"), Torchlight Milling & Processing Inc., a corporation incorporated under the Ontario Business Corporations Act ("Torchlight Milling"), and Torchlight U.S. Holdings, Inc., a corporation incorporated under the laws of the State of Delaware ("Torchlight U.S. Holdings" and, together with Wolverine Lake Mining and Torchlight Milling, the "Guarantors"), and (iii) Kelvantis Capital Markets LLC, Prestige Barrington & Co., Inc., and Halcyon Securities Inc. (collectively, the "Initial Purchasers").
This Certificate is also delivered in connection with that certain Indenture dated as of April 19, 2022 (the "Indenture"), among the Company, as issuer, the Guarantors, as guarantors, and Northern Dominion Trust Company, as trustee (in such capacity, the "Trustee") and as collateral agent (in such capacity, the "Collateral Agent"), governing the Company's 8.750% Senior Secured Notes due 2029 (the "Notes"), issued in an aggregate principal amount of $300,000,000, offered and sold in reliance upon the exemptions from registration provided by Rule 144A and Regulation S under the Securities Act of 1933, as amended (the "Securities Act"), as more fully described in the Final Offering Memorandum dated March 14, 2022 (the "Final Offering Memorandum").
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Purchase Agreement or, if not defined therein, in the Indenture, as applicable.
The undersigned hereby certifies, in his capacity as Corporate Secretary of the Company (and not individually), as follows:
I. ORGANIZATIONAL DOCUMENTS
A. Articles of Incorporation
Attached hereto as Exhibit A is a true, correct, and complete copy of the articles of incorporation of Torchlight Mining Corp. (including the certificate of incorporation), as filed under the Canada Business Corporations Act with the Director appointed under the CBCA (the "Director"), together with all certificates of amendment, articles of amendment, restated articles of incorporation, and other amendments thereto (collectively, the "Articles of Incorporation"), as currently in effect as of the date hereof. The Company was incorporated under the CBCA as a federal (Canada) corporation, and the Articles of Incorporation have not been further amended, restated, supplemented, or otherwise modified since the date of the copies attached hereto as Exhibit A.
B. By-Laws. Attached hereto as Exhibit B is a true, correct, and complete copy of the by-laws of Torchlight Mining Corp. (the "By-Laws"), as currently in effect as of the date hereof. The By-Laws were duly adopted by the board of directors of the Company in accordance with the CBCA and the Articles of Incorporation and have not been amended, modified, rescinded, revoked, or otherwise altered since their adoption. No other by-laws have been adopted by the board of directors or the shareholders of the Company that are currently in effect. The By-Laws represent the only by-laws of the Company currently in force and effect.
II. BOARD RESOLUTIONS
Attached hereto as Exhibit C is a true, correct, and complete copy of resolutions (the "Resolutions") duly adopted by the board of directors of Torchlight Mining Corp. (the "Board"). The Resolutions were adopted at a duly convened meeting of the Board, called and held in accordance with the Articles of Incorporation, the By-Laws, and the CBCA, at which a quorum of directors was present and acting throughout the entirety of such meeting, and at which Ingrid Solheim, as Board Chair and independent director, presided. Alternatively, and to the extent applicable, certain of the Resolutions were adopted by unanimous written consent of all directors of the Company in lieu of a meeting, in each case in accordance with the Articles of Incorporation, the By-Laws, and applicable provisions of the CBCA.
The Resolutions authorized the following actions on behalf of the Company:
1. The issuance and sale by the Company of $300,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029 (the "Notes") at an issue price of 98.50% of the principal amount thereof, offered and sold in a private placement conducted in reliance upon the exemptions from registration provided by Rule 144A and Regulation S under the Securities Act;
2. The execution, delivery, and performance by the Company of its obligations under the Purchase Agreement dated March 29, 2022, among the Company, the Guarantors, and the Initial Purchasers, and the consummation of the transactions contemplated thereby;
3. The execution, delivery, and performance by the Company of its obligations under the Indenture dated as of April 19, 2022, among the Company, as issuer, the Guarantors, as guarantors, and Northern Dominion Trust Company, as Trustee and Collateral Agent, and the issuance of the Notes thereunder;
4. The execution, delivery, and performance by the Company of its obligations under the Registration Rights Agreement dated as of April 19, 2022 (the "Registration Rights Agreement"), among the Company, the Guarantors, and the Initial Purchasers, pursuant to which the Company agreed, among other things, to file an exchange offer registration statement or, under certain circumstances, a shelf registration statement with the U.S. Securities and Exchange Commission with respect to the Notes;
5. The execution, delivery, and performance by the Company of its obligations under the Canadian General Security Agreement dated as of April 19, 2022 (the "Canadian General Security Agreement"), between the Company and Northern Dominion Trust Company, as Collateral Agent, granting to the Collateral Agent, for the benefit of the holders of the Notes and the other Secured Parties (as defined in the Indenture), a first-priority lien on and security interest in substantially all tangible and intangible assets of the Company, including, without limitation:
(a) all mining rights, mineral rights, and mining interests of the Company, including, without limitation, the mining claims registered under the Mining Act (Ontario), R.S.O. 1990, c. M.14, designated as Ontario Mining Claim Nos. WL-4492-01 through WL-4492-47, inclusive (collectively, the "Mining Claims");
(b) all surface rights, access rights, water rights, and ancillary real property interests held by the Company at the Wolverine Lake property located in the District of Thunder Bay, Province of Ontario, encompassing approximately 12,400 hectares (the "Wolverine Lake Property");
(c) all equipment, machinery, plant, vehicles, fixtures, and other tangible personal property of the Company, wherever located;
(d) all inventory, raw materials, work-in-process, and finished goods of the Company;
(e) all accounts receivable, chattel paper, deposit accounts, instruments, letter-of-credit rights, and general intangibles of the Company;
(f) all intellectual property of the Company, including patents, patent applications, trademarks, trade names, copyrights, trade secrets, proprietary technology, software, and know-how;
(g) all equity interests held by the Company in each of its direct and indirect subsidiaries, including, without limitation, all issued and outstanding shares of Wolverine Lake Mining Ltd., Torchlight Milling & Processing Inc., and Torchlight U.S. Holdings, Inc.; and
(h) all proceeds and products of the foregoing;
6. The execution, delivery, and performance by the Company of its obligations under the Collateral Agency Agreement dated as of April 19, 2022 (the "Collateral Agency Agreement"), among the Company, the Guarantors, and Northern Dominion Trust Company, as Collateral Agent, governing the relationship among the Secured Parties with respect to the Collateral (as defined in the Canadian General Security Agreement);
7. The guarantee by each of Wolverine Lake Mining Ltd., Torchlight Milling & Processing Inc., and Torchlight U.S. Holdings, Inc. (each, a "Guarantor") of the Company's obligations under the Notes and the Indenture, on a senior secured basis, jointly and severally, pursuant to the terms and conditions set forth in the Indenture;
8. The application of the net proceeds of the offering of the Notes, estimated at approximately $295,500,000 (reflecting the issue price of 98.50% and estimated underwriting discounts), in the manner described in the Final Offering Memorandum dated March 14, 2022, including:
(a) approximately $167,000,000 for Phase II capital expenditure associated with the expansion of the Wolverine Lake mine, including underground development, shaft deepening, ventilation infrastructure, ore processing plant upgrades, and related construction costs;
(b) approximately $110,250,000 for the repayment in full of amounts outstanding under the revolving credit facility with Ridgeline Bank of Canada (the "Ridgeline Facility"), representing the Canadian dollar equivalent of approximately CAD $140,000,000, converted at a USD/CAD exchange rate of approximately 0.7875, together with accrued and unpaid interest thereon;
(c) approximately $14,250,000 for the payment of transaction fees and expenses incurred in connection with the offering of the Notes, including Initial Purchaser discounts and commissions, legal fees, accounting fees, trustee fees, printing expenses, rating agency fees, and other customary closing costs; and
(d) approximately $8,500,000 for general corporate purposes and working capital requirements of the Company and its subsidiaries;
9. The repayment in full and termination of the existing CAD $225,000,000 revolving credit facility maintained by the Company with Ridgeline Bank of Canada pursuant to the Credit Agreement dated June 15, 2019, as amended (of which approximately CAD $140,000,000 was drawn and outstanding as of the date of such authorization), including the release of all liens and security interests granted in connection therewith and the termination of all related loan documents; and
10. The authorization of each of the officers named in the Incumbency Certificate attached hereto as Exhibit D to execute and deliver, on behalf of the Company, any and all documents, instruments, certificates, agreements, notices, filings, and other papers as may be required or desirable in connection with any of the foregoing, with such changes, additions, deletions, and modifications as such authorized officer or officers may approve, the execution and delivery thereof by any such authorized officer to be conclusive evidence of such approval.
I further certify that the Resolutions have not been amended, modified, rescinded, revoked, or otherwise altered in any respect and remain in full force and effect as of the date hereof. The Resolutions constitute the only resolutions adopted by the Board relating to the matters described therein, and no other resolutions have been adopted by the Board or any committee thereof that would in any way modify, supersede, or conflict with the Resolutions.
III. GOOD STANDING AND EXISTENCE
I hereby certify that Torchlight Mining Corp. is a corporation duly incorporated, validly existing, and in good standing under the CBCA. The Company has all requisite corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted.
The Company has not been dissolved, and no articles of dissolution have been filed or are contemplated to be filed with the Director appointed under the CBCA. No proceedings have been commenced or are pending, nor, to the best of my knowledge after due inquiry, have any proceedings been threatened, for the dissolution, liquidation, winding-up, or termination of the existence of the Company, whether voluntary or involuntary, under the CBCA or otherwise.
The common shares of the Company are listed and posted for trading on the Toronto Stock Exchange (the "TSX") under the ticker symbol "TMC," and such listing remains in good standing as of the date hereof. The Company is in compliance in all material respects with the applicable listing requirements and rules of the TSX.
IV. INCUMBENCY CERTIFICATE
Attached hereto as Exhibit D is the Incumbency Certificate of Torchlight Mining Corp. dated as of April 19, 2022, setting forth the name, title, and true specimen signature of each officer of the Company authorized to execute and deliver, on behalf of the Company, documents, instruments, certificates, and agreements in connection with the offering of the Notes, the Indenture, the Purchase Agreement, the Registration Rights Agreement, the Canadian General Security Agreement, the Collateral Agency Agreement, and each other related transaction document.
The following persons are duly elected or appointed officers of the Company holding the titles set forth opposite their respective names, each such person held such office on the date of execution of each document signed by such person in connection with the transactions described herein, and each such person continues to hold such office as of the date hereof:
I further certify that the specimen signature set forth opposite each person's name in the foregoing table and in Exhibit D is the true and genuine signature of such person.
V. NO AMENDMENTS OR CONFLICTS
I hereby certify that no amendment to the Articles of Incorporation or the By-Laws of the Company has been authorized, proposed, adopted, or made since the date of the copies attached hereto as Exhibit A and Exhibit B, respectively. The Articles of Incorporation and By-Laws attached hereto as Exhibit A and Exhibit B, respectively, are the only charter documents and by-laws of the Company currently in force and effect.
I further certify that the execution, delivery, and performance by the Company of the Notes, the Indenture, the Purchase Agreement, the Registration Rights Agreement, the Canadian General Security Agreement, the Collateral Agency Agreement, and each other related transaction document, and the consummation of the transactions contemplated thereby, do not and will not (a) conflict with, contravene, or result in a violation or breach of any provision of the Articles of Incorporation or By-Laws of the Company, (b) require any consent, approval, or authorization under the Articles of Incorporation or By-Laws of the Company that has not been obtained, or (c) result in the creation or imposition of any lien, charge, or encumbrance upon any property or assets of the Company under or pursuant to the Articles of Incorporation or By-Laws of the Company (other than liens created pursuant to the Canadian General Security Agreement and the Collateral Agency Agreement).
VI. NO PROCEEDINGS
I hereby certify that no proceedings are pending, nor, to the knowledge of the undersigned after reasonable inquiry, have any proceedings been threatened, for (a) the dissolution, merger, consolidation, amalgamation, arrangement, continuation, or winding-up of the Company, whether voluntary or involuntary, (b) the revocation or cancellation of the Articles of Incorporation of the Company under the CBCA or any other applicable law, (c) the appointment of a receiver, receiver and manager, trustee in bankruptcy, liquidator, or similar official with respect to the Company or any of its properties or assets, or (d) the commencement of any proceedings under the Companies' Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), or any similar federal, provincial, or foreign law relating to the reorganization, arrangement, or compromise of debts.
VII. GENERAL QUALIFICATION AND LIMITATION OF LIABILITY
The undersigned is delivering this Certificate solely in his capacity as General Counsel and Corporate Secretary of Torchlight Mining Corp. and not in his individual or personal capacity. The undersigned shall have no personal liability whatsoever under or in connection with this Certificate or any of the certifications, representations, or statements made herein, whether under contract, tort, or any other legal theory.
In preparing and delivering this Certificate, the undersigned has relied upon (a) the books, records, and corporate minute books of the Company maintained at its principal executive offices and registered office, (b) certificates, statements, and representations of officers and directors of the Company, (c) certificates of public officials, and (d) such other documents, records, and sources of information as the undersigned has deemed appropriate, in each case without independent investigation or verification. The undersigned has assumed the genuineness of all signatures (other than his own), the authenticity of all documents submitted as originals, and the conformity with the originals of all documents submitted as copies.
IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of April 19, 2022.
TORCHLIGHT MINING CORP.
By: ________
Name: Deepak Rathore
Title: General Counsel & Corporate Secretary
EXHIBIT A
Articles of Incorporation of Torchlight Mining Corp.
[Attached hereto — Articles of Incorporation of Torchlight Mining Corp. as filed under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, with the Director appointed under the CBCA, together with all certificates of amendment, articles of amendment, restated articles of incorporation, and other amendments thereto, as currently in effect as of April 19, 2022]
Entity Type: CBCA corporation; Federal (Canada) jurisdiction
EXHIBIT B
By-Laws of Torchlight Mining Corp.
[Attached hereto — By-Laws of Torchlight Mining Corp., as duly adopted by the board of directors and as currently in effect as of April 19, 2022]
EXHIBIT C
Board Resolutions of Torchlight Mining Corp.
[Attached hereto — Certified copy of resolutions of the Board of Directors of Torchlight Mining Corp. authorizing (i) the issuance and sale of $300,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029, (ii) the execution, delivery, and performance of the Purchase Agreement, the Indenture, the Registration Rights Agreement, the Canadian General Security Agreement, and the Collateral Agency Agreement, (iii) the guarantee by the Guarantors of the Company's obligations under the Notes and the Indenture, (iv) the application of net proceeds of the offering, (v) the repayment and termination of the Ridgeline Bank of Canada revolving credit facility, and (vi) all related matters]
Adopted by unanimous approval of the Board of Directors; Ingrid Solheim, Board Chair (independent director), presiding.
EXHIBIT D
Incumbency Certificate of Torchlight Mining Corp.
INCUMBENCY CERTIFICATE
TORCHLIGHT MINING CORP.
April 19, 2022
I, Deepak Rathore, Corporate Secretary of Torchlight Mining Corp., a corporation duly incorporated and existing under the Canada Business Corporations Act, R.S.C. 1985, c. C-44 (the "Company"), do hereby certify that each of the persons listed below is a duly elected or appointed officer of the Company holding the title set forth opposite his or her name, that such person is authorized to sign and deliver, on behalf of the Company, any and all documents, instruments, certificates, agreements, and other papers required or contemplated in connection with the offering of $300,000,000 aggregate principal amount of 8.750% Senior Secured Notes due 2029, the Indenture, the Purchase Agreement, and all related transaction documents, and that the signature set forth opposite such person's name is his or her true and genuine signature.
Each of the foregoing persons held the office set forth opposite his or her name on the date of execution of each document signed by such person in connection with the transactions described above and continues to hold such office as of the date hereof.
IN WITNESS WHEREOF, I have executed this Incumbency Certificate as of April 19, 2022.
TORCHLIGHT MINING CORP.
By: ________
Name: Deepak Rathore
Title: General Counsel & Corporate Secretary
| Name | Title | Specimen Signature |
| Magnus Thornberg | Chief Executive Officer | _____ |
| Lianne Prokopchuk | Chief Financial Officer | _____ |
| Deepak Rathore | General Counsel & Corporate Secretary | _____ |
| Colleen Hébert | Treasurer | _____ |
| Name | Title | Specimen Signature |
| Magnus Thornberg | Chief Executive Officer | _____ |
| Lianne Prokopchuk | Chief Financial Officer | _____ |
| Deepak Rathore | General Counsel & Corporate Secretary | _____ |
| Colleen Hébert | Treasurer | _____ |