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[EXECUTION COPY]
FIRST AMENDMENT
TO
DOLLAR SUPPLY AGREEMENT
This FIRST AMENDMENT TO DOLLAR SUPPLY AGREEMENT, dated as of September 24,
1996 (this "Amendatory Agreement"), is among THE BANK OF NOVA SCOTIA
("Scotiabank") as consignor (in such capacity, the "Consignor"), the various
financial institutions parties hereto (collectively, the "Suppliers"),
SCOTIABANK, THE CHASE MANHATTAN BANK (formerly known as Chemical Bank) and THE
BANK OF NEW YORK as the co-agents (in such capacity, the "Co-Agents") for the
Suppliers, and Scotiabank, as administrative agent (in such capacity, the
"Administrative Agent") for the Suppliers.
W I T N E S S E T H:
WHEREAS, the Consignor, the Suppliers, the Co-Agents and the
Administrative Agent are parties to a Dollar Supply Agreement, dated as of
September 28, 1994 (as amended or otherwise modified prior to the date hereof,
the "Existing Dollar Supply Agreement"); and
WHEREAS, the parties hereto have agreed, subject to the conditions and
terms hereinafter set forth, to amend the Existing Dollar Supply Agreement in
certain respects as herein provided (the Existing Dollar Supply Agreement, as so
amended by this Amendatory Agreement, being referred to as the "Dollar Supply
Agreement");
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"Administrative Agent" is defined in the preamble.
"Amendatory Agreement" is defined in the preamble.
"Co-Agents" is defined in the preamble.
"Consignor" is defined in the preamble.
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"Dollar Supply Agreement" is defined in the second recital.
"Existing Dollar Supply Agreement" is defined in the first recital.
"First Amendment Effective Date" is defined in Subpart 3.1.
"Scotiabank" is defined in the preamble.
"Suppliers" is defined in the preamble.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided in
the Existing Dollar Supply Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendatory Agreement with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING DOLLAR SUPPLY AGREEMENT
AND EXTENSION OF STATED MATURITY DATE
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Dollar Supply Agreement is hereby amended, and the
Stated Maturity Date is extended, in accordance with this Part II; except as so
amended, the Existing Dollar Supply Agreement shall continue in full force and
effect.
SUBPART 2.1. Amendment to Recital. The first recital of the Existing
Dollar Supply Agreement is hereby amended by deleting the words "up to 110,000
xxxx ounces of gold and up to 11,250,000 xxxx ounces of silver" in such recital,
and inserting the words "gold and silver in the amounts set forth therein" in
place thereof.
SUBPART 2.2. Amendment to Article I. Article I of the Existing Dollar
Supply Agreement is hereby amended by inserting the following definition in such
Section in the appropriate alphabetical sequence:
"First Amendment" means the First Amendment, dated as of September
24, 1996, to this Agreement among the Consignor, the Suppliers, the
Co-Agents and the Administrative Agent.
SUBPART 2.3. Amendments to Article III. Article III of the Existing Dollar
Supply Agreement is hereby amended in accordance with Subparts 2.3.1 and 2.3.2.
SUBPART 2.3.1. Section 3.2.1 of the Existing Dollar Supply Agreement is
hereby amended by deleting "1/2 of 1% per annum"
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wherever appearing in such Section, and inserting "40 basis points per annum" in
each case in place thereof.
SUBPART 2.3.2. Section 3.2.2 of the Existing Dollar Supply Agreement is
hereby amended by deleting "1/5 of 1% per annum" appearing in such Section, and
inserting "15 basis points per annum" in place thereof.
SUBPART 2.4. Amendments to Article IV. Sections 4.1, 4.2 and 4.3 of the
Existing Dollar Supply Agreement are each hereby amended by deleting "1/2 of 1%
per annum" wherever appearing in such Sections, and inserting "40 basis points
per annum" in each case in place thereof.
SUBPART 2.5. Extension of Stated Maturity Date. By their signatures below,
the Consignor, the Suppliers, the Co-Agents and the Administrative Agent hereby
agree that, in accordance with the terms of Section 2.4 of the Existing Dollar
Supply Agreement, upon the effectiveness of this Amendatory Agreement, the
Stated Maturity Date shall be September 27, 1999.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. First Amendment Effective Date. This Amendatory Agreement
shall become effective as of the date first written above (the "First Amendment
Effective Date"), but only if each of the conditions set forth in this Subpart
3.1 shall have been satisfied on or prior to that date.
SUBPART 3.1.1. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendatory Agreement, duly executed on behalf
of the Consignor, the Suppliers, the Co-Agents and the Administrative Agent.
SUBPART 3.1.2. Execution of Consent. The Consignor shall have received,
for each Supplier, an executed copy of the Consent, substantially in the form of
Exhibit A hereto, duly executed on behalf of the Consignee.
SUBPART 3.1.3. First Amendment to Fee Consignment Agreement. The Consignor
shall have received evidence that the First Amendment to the Fee Consignment
Agreement, dated as of the date hereof, shall have, or contemporaneously with
the effectiveness of this Amendatory Agreement, will, become effective in
accordance with its terms.
SUBPART 3.1.4. Legal Details, etc. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The
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Administrative Agent and its counsel shall have received all information and
such counterpart originals or such certified or other copies or such materials,
as the Administrative Agent or its counsel may reasonably request, and all legal
matters incident to the transactions contemplated by this Amendatory Agreement
shall be satisfactory to the Administrative Agent and its counsel.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendatory Agreement to
any Part or Subpart are, unless otherwise specified or otherwise required by the
context, to such Part or Subpart of this Amendatory Agreement.
SUBPART 4.2. Document Pursuant to Existing Dollar Supply Agreement. This
Amendatory Agreement is executed pursuant to the Existing Dollar Supply
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Dollar Supply Agreement.
SUBPART 4.3. Successors and Assigns. This Amendatory Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.4. Counterparts. This Amendatory Agreement may be executed by
the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 4.5. Limited Waiver, etc. No amendment, waiver or approval under
this Amendatory Agreement shall, except as may be otherwise stated in this
Amendatory Agreement, be applicable to subsequent transactions. No amendment,
waiver or approval hereunder shall require any similar or dissimilar amendment,
waiver or approval to be granted after the date hereof, and except as expressly
modified by this Amendatory Agreement, the provisions of the Existing Dollar
Supply Agreement shall remain in full force and effect, without amendment or
other modification.
SUBPART 4.6. Governing Law. THIS AMENDATORY AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendatory
Agreement to be executed by their respective authorized officers as of the day
and year first above written.
THE BANK OF NOVA SCOTIA,
in its capacity as Consignor,
Administrative Agent, a Co-Agent and
a Supplier
By: _____________________________________________
Name:
Title:
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XXX XXXX XX XXX XXXX, in its capacity as
a Co-Agent and a Supplier
By: _____________________________________________
Name:
Title:
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THE CHASE MANHATTAN BANK (formerly known
as Chemical Bank), in its capacity as
a Co-Agent and a Supplier
By: _____________________________________________
Name:
Title:
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FLEET PRECIOUS METALS INC.
By: _____________________________________________
Name:
Title:
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THE FIRST NATIONAL BANK OF CHICAGO
(formerly known as NBD Bank, N.A.)
By: _____________________________________________
Name:
Title:
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BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By: _____________________________________________
Name:
Title:
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LTCB TRUST COMPANY
By: _____________________________________________
Name:
Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By: _____________________________________________
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: _____________________________________________
Name:
Title:
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THE SUMITOMO BANK, LIMITED
By: _____________________________________________
Name:
Title:
By: _____________________________________________
Name:
Title:
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XXXXXXXX XXXX XX, XXX XXXX XXX/XX XXXXXX
XXXXXXX BRANCHES
By: _____________________________________________
Name:
Title:
By: _____________________________________________
Name:
Title:
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THE FUJI BANK LTD.
By: _____________________________________________
Name:
Title:
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ABN AMRO BANK N.V. NEW YORK BRANCH
By: _____________________________________________
Name:
Title:
By: _____________________________________________
Name:
Title:
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BANQUE PARIBAS
By: _____________________________________________
Name:
Title:
By: _____________________________________________
Name:
Title:
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GIROCREDIT BANK AG DER SPARKESSEN GRAND
CAYMAN ISLAND BRANCH
By: _____________________________________________
Name:
Title:
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COMERICA BANK
By: _____________________________________________
Name:
Title:
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IBJ XXXXXXXX BANK & TRUST COMPANY
By: _____________________________________________
Name:
Title:
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YASUDA TRUST & BANKING CO., LTD.
NEW YORK BRANCH
By: _____________________________________________
Name:
Title:
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Exhibit A
CONSENT
Dated as of September 24, 1996
Reference is made to:
(i) the Short-Term Dollar Supply Agreement, dated as of September
28, 1994 (as amended or otherwise modified prior to the date hereof, the
"Short-Term Dollar Supply Agreement"), among The Bank of Nova Scotia, as
the consignor (the "Consignor"), certain commercial lending institutions
from time to time parties thereto (the "Suppliers"), The Bank of Nova
Scotia, The Chase Manhattan Bank (formerly known as Chemical Bank) and The
Bank of New York, as the co-agents for the Suppliers (the "Co-Agents"),
and The Bank of Nova Scotia, as the administrative agent for the Suppliers
(the "Administrative Agent");
(ii) the Dollar Supply Agreement, dated as of September 28, 1994 (as
amended or otherwise modified prior to the date hereof, the "Dollar Supply
Agreement"), among the Consignor, the Suppliers, the Co-Agents and the
Administrative Agent;
(iii) the First Amendment, dated as of the date hereof ("Amendment
No. 1 to Short-Term Dollar Supply Agreement"), to the Short-Term Dollar
Supply Agreement, among the Consignor, the Suppliers, the Co-Agents and
the Administrative Agent; and
(iv) the First Amendment, dated as of the date hereof ("Amendment
No. 1 to Dollar Supply Agreement"), to the Dollar Supply Agreement, among
the Consignor, the Suppliers, the Co-Agents and the Administrative Agent.
The undersigned hereby consents to Amendment No. 1 to Short-Term Dollar
Supply Agreement and Amendment No. 1 to Dollar Supply Agreement (collectively,
the "Amendments") and, in accordance with Section 8.1 of each of the Short-Term
Dollar Supply Agreement and the Dollar Supply Agreement, hereby consents to the
execution and delivery of each Amendment by the parties thereto in the form
previously delivered to the undersigned.
HANDY & XXXXXX
By: ______________________________________
Name:
Title:
Name:
Title:
