YAMANA GOLD INC. as Borrower and THE BANK OF NOVA SCOTIA as Joint-Lead Arranger, Joint Bookrunner and Administrative Agent and THE ROYAL BANK OF SCOTLAND PLC, CANADA BRANCH as Syndication Agent and RBS SECURITIES INC. as Joint-Lead Arranger and Joint...
Exhibit 99.1
EXECUTION VERSION
YAMANA GOLD INC.
as Borrower
and
THE BANK OF NOVA SCOTIA
as Joint-Lead Arranger, Joint Bookrunner and Administrative Agent
and
THE XXXXX XXXX XX XXXXXXXX XXX, XXXXXX BRANCH
as Syndication Agent
and
RBS SECURITIES INC.
as Joint-Lead Arranger and Joint Bookrunner
and
BNP PARIBAS (CANADA), BANK OF AMERICA, N.A., CANADA BRANCH,
CANADIAN IMPERIAL BANK OF COMMERCE and ROYAL BANK OF CANADA
as Co-Documentation Agents
and
THE BANK OF NOVA SCOTIA, THE ROYAL BANK OF SCOTLAND PLC, CANADA BRANCH,
EXPORT DEVELOPMENT CANADA, BNP PARIBAS (CANADA),
BANK OF AMERICA N.A. (CANADA BRANCH), ROYAL BANK OF CANADA,
CANADIAN IMPERIAL BANK OF COMMERCE, BANK OF TOKYO-MITSUBISHI UFJ (CANADA),
BARCLAYS BANK PLC, CREDIT SUISSE AG, TORONTO BRANCH, NATIONAL BANK OF CANADA,
XXXXXX XXXXXXX BANK, N.A.,
THE TORONTO-DOMINION BANK and CITIBANK, N.A., CANADIAN BRANCH
as Lenders
SECOND AMENDING AGREEMENT
RE: AMENDED AND RESTATED CREDIT
AGREEMENT
Dated as of March 31, 2014
Fasken Xxxxxxxxx DuMoulin LLP
Toronto, Ontario
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AGREEMENT dated as of the 31st day of March, 2014.
BETWEEN:
THE BANK OF NOVA SCOTIA, a Canadian chartered bank
(herein, in its capacity as administrative agent for the Lenders, called the “Administrative Agent”)
- and -
YAMANA GOLD INC., a corporation continued under the laws of Canada
(herein called the “Borrower”)
- and -
THE SEVERAL LENDERS FROM TIME TO TIME PARTY TO THE CREDIT AGREEMENT (herein and therein in their capacities as lenders to the Borrower, collectively called the “Lenders” and individually called a “Lender”)
WHEREAS the Borrower, the Lenders and the Administrative Agent entered into an amended and restated credit agreement dated as of February 29, 2012, as amended by the first amending agreement to amended and restated credit agreement dated as of February 28, 2013, pursuant to which the Lenders established a certain revolving credit facility in favour of the Borrower (the “Credit Agreement”);
AND WHEREAS the Borrower, the Lenders and the Administrative Agent hereto wish to amend certain provisions of the Credit Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants and agreements contained herein, the parties covenant and agree as follows:
ARTICLE 1
DEFINED TERMS
1.1 Capitalized Terms
All capitalized terms which are used herein without being specifically defined herein shall have the meanings ascribed thereto in the Credit Agreement.
ARTICLE 2
AMENDMENTS TO CREDIT AGREEMENT
2.1 General Rule
Subject to the terms and conditions herein contained, the Credit Agreement is hereby amended to the extent necessary to give effect to the provisions of this agreement and to incorporate the provisions of this agreement into the Credit Agreement.
2.2 Defined Terms
Section 1.1 of the Credit Agreement is hereby amended as follows:
(a) The definition of “Maturity Date” is hereby deleted in its entirety and replaced by the following:
““Maturity Date” means March 31, 2019, as the same may be extended from time to time pursuant to Section 9.1(b).”
(b) The following definition is added in alphabetical order:
““MMM” means Minera Meridian Minerales S. de X.X. de C.V., a corporation incorporated under the laws of Mexico.”
(c) The definition of “Guarantors” is hereby amended by inserting “MMM,” immediately following the term: “MMIC,” therein
2.3 Establishment of Credit Facility
Section 2.1 of the Credit Agreement is hereby amended by deleting the value: “U.S.$750,000,000” in the third line thereof and replacing such deletion with the value: “U.S.$1,000,000,000”;
2.4 Accordion Feature
Section 2.5(a) of the Credit Agreement is hereby amended by deleting the value: “US$1,000,000,000 in the final sentence thereof and replacing such deletion with “US$1,250,000,000”;
2.5 Tangible Net Worth
Section 11.1(o) of the Credit Agreement is hereby deleted in its entirety and replaced with the following:
“(o) [Intentionally Deleted]”
2.6 Schedules
Schedules A, B and H of the Credit Agreement are hereby deleted in their entirety and replaced with Schedules A, B and H attached hereto.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties
To induce the Lenders and the Administrative Agent to enter into this agreement, the Borrower hereby represents and warrants to the Lenders and the Administrative Agent that the representations and warranties of the Borrower which are contained in Section 10.1 of the Credit Agreement, as hereby amended, are true and correct on the date hereof as if made on the date hereof.
ARTICLE 4
CONDITION PRECEDENT
4.1 Conditions Precedent to Effectiveness of this Agreement
This agreement shall not become effective until the following conditions precedent are fulfilled (which conditions precedent must be fulfilled on or prior to March 31, 2014):
(a) an acknowledgement and consent in the form attached hereto is executed and delivered by each Guarantor to the Administrative Agent;
(b) a confirmation of Guarantees from each applicable Obligor, in form and substance satisfactory to the Lenders, shall have been executed and delivered;
(c) the Administrative Agent has received, in form and substance satisfactory to the Majority Lenders:
(i) a duly certified copy of the articles of incorporation and by-laws of the Borrower;
(ii) a duly certified resolution of the board of directors or the shareholders of each Obligor authorizing it to execute, deliver and perform its obligations under this agreement or the aforementioned confirmation, as the case may be;
(iii) a certificate of a senior officer of the Borrower setting forth specimen signatures of the individuals authorized to sign this agreement;
(iv) a certificate of status or good standing for each Obligor (where available), issued by the appropriate governmental body or agency of the jurisdiction in which such Obligor is incorporated or formed;
(v) a certificate of a senior officer of the Borrower certifying that no Default has occurred and is continuing or would occur or arise immediately after this agreement becomes effective; and
(vi) an opinion of legal counsel to the Borrower with respect to, inter alia, the Borrower, the enforceability of this agreement and as to such other matters as the Majority Lenders may reasonably request, and otherwise in form and substance satisfactory to the Administrative Agent; and
(d) the payment by the Borrower to the Joint Lead Arrangers and the Administrative Agent for and on behalf of the Lenders, of all fees payable in connection with this agreement.
ARTICLE 5
MISCELLANEOUS
5.1 No Default
The Borrower represents and warrants to and in favour of the Administrative Agent and the Lenders that no Default has occurred and is continuing as at the date this agreement becomes effective and no Default would arise immediately thereafter.
5.2 Future References to the Credit Agreement
On and after the date of this agreement, each reference in the Credit Agreement to “this agreement”, “hereunder”, “hereof”, or words of like import referring to the Credit Agreement, and each reference in any related document to the “Credit Agreement”, “thereunder”, “thereof”, or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby. The Credit Agreement, as amended hereby, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed.
5.3 Governing Law
This agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.
5.4 Enurement
This agreement shall enure to the benefit of and shall be binding upon the parties hereto and their respective successors and permitted assigns.
5.5 Conflict
If any provision of this agreement is inconsistent or conflicts with any provision of the Credit Agreement, the relevant provision of this agreement shall prevail and be paramount. This agreement shall not create any novation.
5.6 No Waiver
This agreement shall not limit, impair or constitute a waiver of the rights, powers or remedies available to the Administrative Agent or the Lenders under the Credit Agreement or any other Credit Document.
5.7 Credit Document
This agreement shall be deemed to be a Credit Document.
5.8 Further Assurances
The Borrower shall do, execute and deliver or shall cause to be done, executed and delivered all such further acts, documents and things as the Administrative Agent may reasonably request for the purpose of giving effect to this agreement and to each and every provision hereof.
5.9 Counterparts
This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute one and the same instrument.
[Remainder of page intentionally blank.]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this agreement on the date first above written.
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Name: |
Xxxxxxx Xxxx | |
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Title: |
Executive Vice President, Finance and Chief Financial Officer | |
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By: |
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Name: |
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THE BANK OF NOVA SCOTIA, as Administrative Agent | ||
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
Director |
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By: |
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Name: |
Alyssa Senwasane |
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Title: |
Associate Director |
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THE BANK OF NOVA SCOTIA, as Lender | ||
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Name: |
Xxxxxxx Xxxx |
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Title: |
Managing Director |
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By: |
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Name: |
Xxxxxxx Xxxxxxxxxxxx |
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Title: |
Associate Director |
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THE XXXXX XXXX XX XXXXXXXX XXX, XXXXXX BRANCH | ||
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By: |
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Name: |
Xxxxxx X. Xx Xxxxx |
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Title: |
Vice-President |
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By: |
/s/ | |
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Name: |
Xxxxxxx X. Xxxxx |
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Title: |
Senior Vice President |
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EXPORT DEVELOPMENT CANADA | ||
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By: |
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Name: |
Xxxxxxxxxxx Xxxxxx |
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Title: |
Senior Associate |
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By: |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Financing Manager |
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BNP PARIBAS (CANADA) | ||
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By: |
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Name: |
Xxxxxxx Xxxxxxxx |
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Title: |
Managing Director |
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By: |
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Name: |
Xxxxx Xxxxxx |
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Title: |
Managing Director |
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BANK OF AMERICA, N.A., CANADA BRANCH | ||
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Name: |
Xxxx Xxxxxx |
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Title: |
Vice President |
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ROYAL BANK OF CANADA | ||
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Name: |
Stam Fountoulakis |
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Title: |
Authorized Signatory |
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By: |
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CANADIAN IMPERIAL BANK OF COMMERCE | ||
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By: |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Executive Director |
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Name: |
Xxxxx Xxxxx |
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Title: |
Director |
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BANK OF TOKYO-MITSUBISHI UFJ (CANADA) | ||
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Managing Director |
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By: |
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BARCLAYS BANK PLC | ||
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By: |
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Name: |
Xxxx Xxxxxx |
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Title: |
Vice President |
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CREDIT SUISSE AG, TORONTO BRANCH | ||
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Name: |
Xxxxx Xxxxxx |
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Title: |
Authorized Signatory |
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By: |
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Name: |
Xxxxxxxxxxx Xxxx |
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Title: |
Authorized Signatory |
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NATIONAL BANK OF CANADA | ||
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Name: |
Xxxx Xxxxxx |
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Title: |
Director |
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By: |
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Name: |
Xxxxxxxxx Xxxxxxxx |
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Title: |
Director |
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XXXXXX XXXXXXX BANK, N.A. | ||
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By: |
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Name: |
Xxxxx Xxxx |
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Title: |
Authorized Signatory |
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By: |
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Title: |
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THE TORONTO-DOMINION BANK | ||
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By: |
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Name: |
Xxxxx Xxxxx |
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Title: |
Director |
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By: |
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Name: |
Xxxxx Xxxxxxxxx |
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Title: |
Managing Director |
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CITIBANK, N.A., CANADIAN BRANCH | ||
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By: |
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Name: |
Xxxxxxxx Xxxx |
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Title: |
Authorized Signatory |
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ACKNOWLEDGEMENT AND CONSENT
The undersigned, each being a guarantor of the Borrower’s Obligations under, inter alia, the Credit Agreement, hereby acknowledge, agree to and consent to the foregoing amendments to the Credit Agreement and hereby confirm their obligations under their respective Finance Documents.
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MINERA MERIDIAN LIMITADA | ||
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By: |
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Name: |
Xxxxxxx Xxxxxxx Xxxxxxx |
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Title: |
Delegate |
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By: |
/s/ | |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Delegate |
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YAMANA ARGENTINA HOLDINGS B.V. | ||
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By: |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Managing Director A |
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By: |
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Name: |
Mextrust B.V. |
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Title: |
Managing Director B |
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YAMANA CHILE RENTISTA DE CAPITALES MOBILIARIOS LIMITADA | ||
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By: |
/s/ | |
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Name: |
Xxxxxxx Xxxxxxx Xxxxxxx |
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Title: |
Delegate |
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By: |
/s/ | |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Delegate |
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JACOBINA MINERACAO DE COMERCIO LTDA | ||
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By: |
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Name: |
Arao Portugal |
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Title: |
Officer |
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By: |
/s/ | |
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Name: |
Xxxxx Xx Xxxxx Montalvao |
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Title: |
Officer |
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MINERAÇÃO MARACÁ INDÚSTRIA E COMÉRCIO S.A. | ||
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By: |
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Name: |
Arao Portugal |
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Title: |
Officer |
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By: |
/s/ | |
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Name: |
Xxxxx Xx Xxxxx Montalvao |
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Title: |
Officer |
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MINERA MERIDIAN MINERALES, S. DE X. X. DE C.V. | ||
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By: |
/s/ | |
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Name: |
Xxxxx Xxxxx |
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Title: |
Director |
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By: |
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SCHEDULE A
LENDERS AND INDIVIDUAL COMMITMENTS
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Lenders |
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Individual Commitment | |
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The Bank of Nova Scotia |
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$ |
105,000,000 |
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The Royal Bank of Scotland plc, Canada Branch |
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$ |
105,000,000 |
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BNP Paribas (Canada) |
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$ |
92,500,000 |
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Bank of America N.A., Canada Branch |
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$ |
92,500,000 |
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Royal Bank of Canada |
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$ |
92,500,000 |
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Canadian Imperial Bank of Commerce |
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$ |
92,500,000 |
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Export Development Canada |
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$ |
65,000,000 |
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Bank of Tokyo-Mitsubishi UFJ (Canada) |
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$ |
65,000,000 |
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Citibank, N.A., Canadian Branch |
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$ |
65,000,000 |
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The Toronto-Dominion Bank |
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$ |
65,000,000 |
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Barclays Bank PLC |
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$ |
45,000,000 |
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Credit Suisse AG, Toronto Branch |
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$ |
45,000,000 |
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National Bank of Canada |
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$ |
45,000,000 |
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Xxxxxx Xxxxxxx Bank, N.A. |
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$ |
25,000,000 |
SCHEDULE B
COMPLIANCE CERTIFICATE
TO: THE BANK OF NOVA SCOTIA
I, , the [senior financial officer] of Yamana Gold Inc., hereby certify that:
1. I am the duly appointed <*> of Yamana Gold Inc., the Borrower named in the amended and restated credit agreement made as of February 29, 2012 as amended to the date hereof (the “Credit Agreement”) between, Yamana Gold Inc., as Borrower, the Lenders named therein and The Bank of Nova Scotia, as administrative agent of the Lenders and as such I am providing this Certificate for and on behalf of Yamana Gold Inc. pursuant to the Credit Agreement.
2. I am familiar with and have examined the provisions of the Credit Agreement including, without limitation, those of Article 10, Article 11 and Article 13 therein.
3. To the best of my knowledge, information and belief and after due inquiry, no Default has occurred and is continuing.
As at or for the relevant period ending , the amounts and financial ratios as contained in Sections 11.1(p) and 11.1(q) of the Credit Agreement are as follows and detailed calculations thereof are attached hereto:
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Actual |
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Required Amount or Ratio |
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(a) Net Total Debt to Tangible Net Worth Ratio |
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< 0.75:1> |
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(b) Leverage Ratio |
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< 3.5:1 |
4. Attached hereto is a revised updated Schedule G of the Credit Agreement.
5. Unless the context otherwise requires, capitalized terms in the Credit Agreement which appear herein without definitions shall have the meanings ascribed thereto in the Credit Agreement.
DATED this day of , 20 .
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(Signature) |
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(Name - please print) |
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(Title of Senior Financial Officer) |
CALCULATION WORKSHEET
Tangible Net Worth
Actual:
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Equity as of financial statements dated [ ] |
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U.S.$ |
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Less: |
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Goodwill, Other Intangible Assets and Accumulated Other Comprehensive Income |
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U.S.$ |
( ) |
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Tangible Net Worth |
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U.S.$ |
(A) |
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Net Total Debt to Tangible Net Worth Ratio
Indebtedness
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Description |
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[itemize] |
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Aggregate Indebtedness |
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U.S.$ |
(B) |
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Non-Recourse Indebtedness |
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U.S.$ |
(C) |
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Total Debt |
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U.S.$ |
(D = B - C) |
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Cash Held by Non-Recourse |
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U.S.$ |
(E) |
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Net Total Debt |
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U.S.$ |
(F = D – E) |
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Tangible Net Worth |
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U.S.$ |
(G) |
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| |
|
Net Total Debt to Tangible Net Worth |
|
<*>:1 |
|
| |
|
|
|
|
|
| |
|
Minimum Requirement |
|
0.75:1 |
|
| |
Leverage Ratio
|
Net Total Debt |
|
U.S.$ |
(H) |
|
|
|
|
|
|
|
|
Rolling EBITDA |
|
U.S. $ |
(I) |
|
|
|
|
|
|
|
|
Leverage Ratio (Actual) |
|
|
(H:I) |
|
|
|
|
|
|
|
|
Minimum Requirement 3:50:1 |
|
|
|
|
SCHEDULE H
APPLICABLE RATES
|
Level |
|
Leverage Ratio |
|
LIBOR Loan |
|
Base Rate Loan |
|
Standby Fee rate |
|
|
I |
|
> 2.50 |
|
2.750 |
% |
1.750 |
% |
0.550 |
% |
|
II |
|
> 2.0:1 to < 2.5:1 |
|
2.250 |
% |
1.250 |
% |
0.450 |
% |
|
III |
|
> 1.5:1 to < 2.0:1 |
|
2.000 |
% |
1.000 |
% |
0.400 |
% |
|
IV |
|
> 1.0:1 to < 1.5:1 |
|
1.700 |
% |
0.700 |
% |
0.340 |
% |
|
V |
|
< 1.0:1 |
|
1.450 |
% |
0.450 |
% |
0.290 |
% |
