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 N.V., (CANADA) BRANCH as Syndication Agent and RBS SECURITIES INC. as Joint-Lead Arranger and...
Exhibit 99.1
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 N.V., (CANADA) 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 N.V., (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
FIRST AMENDING AGREEMENT
RE: AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 28, 2013
Fasken Xxxxxxxxx DuMoulin LLP
Toronto, Ontario
FIRST AMENDING AGREEMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AGREEMENT dated as of the 28th day of February, 2013.
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 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 February 28, 2018, as the same may be extended from time to time pursuant to Section 9.1(b).”
2.3 Schedules
Schedules A and H of the Credit Agreement are hereby deleted in their entirety and replaced with Schedules A 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 February 28, 2013):
(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 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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By: |
/s/ | |
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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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Title: |
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THE BANK OF NOVA SCOTIA, as Administrative Agent | ||
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By: |
/s/ | |
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Name: |
Xxxxxx Xxxxxxxx |
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Title: |
Director |
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By: |
/s/ | |
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Name: |
Xxxxxxx Xx |
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Title: |
Associate Director |
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THE BANK OF NOVA SCOTIA, as Lender | ||
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By: |
/s/ | |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Managing Director |
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By: |
/s/ | |
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Name: |
Xxxxx Xxxxx |
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Title: |
Associate Director |
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THE ROYAL BANK OF SCOTLAND N.V., (CANADA) BRANCH | ||
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By: |
/s/ | |
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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: |
Xxxxx Xxxxxx |
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Title: |
Director, Head of Client Management Canada |
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EXPORT DEVELOPMENT CANADA | |
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By: |
/s/ |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Senior Asset Manager |
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By: |
/s/ |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Asset Manager |
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BNP PARIBAS (CANADA) | |
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By: |
/s/ |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Managing Director |
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By: |
/s/ |
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Name: |
Xxxx Xxxxxx |
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Title: |
Director |
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BANK OF AMERICA, N.A., CANADA BRANCH | ||
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By: |
/s/ | |
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Name: |
Xxxx Xxxxxx |
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Title: |
Assistant Vice President |
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By: |
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Name: | |
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Title: |
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ROYAL BANK OF CANADA | |
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By: |
/s/ |
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Name: |
Stam Fountoulakis |
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Title: |
Authorized Signatory |
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By: |
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Name: |
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Title: |
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CANADIAN IMPERIAL BANK OF COMMERCE | ||
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By: |
/s/ | |
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Name: |
Xxxxx Xxxxxxx |
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Title: |
Executive Director |
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By: |
/s/ | |
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Name: |
Deepak Xxxx |
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Title: |
Director |
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BANK OF TOKYO-MITSUBISHI UFJ (CANADA) | |
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By: |
/s/ |
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Name: Xxxxxx Xxxxxxx |
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Title: Managing Director |
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By: |
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Name: |
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Title: |
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BARCLAYS BANK PLC | ||
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By: |
/s/ | |
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Name: |
Xxxxxxx X. Xxxxxxxxxx |
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Title: |
Vice President |
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By: |
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Name: | |
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Title: | |
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CREDIT SUISSE AG, TORONTO BRANCH | |||
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By: |
/s/ | ||
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Name: |
Xxxxx Xxxxxx | |
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Title: |
Director | |
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By: |
/s/ | ||
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Name: |
Xxxxx Xxxx | |
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Title: |
Chief Financial Officer | |
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NATIONAL BANK OF CANADA | |
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By: |
/s/ |
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Name: |
Xxxx Xxxxxx |
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Title: |
Director |
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By: |
/s/ |
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Name: |
Xxxxx Xxxxx |
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Title: |
Director |
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XXXXXX XXXXXXX BANK, N.A. | |
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By: |
/s/ |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Authorized Signatory |
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By: |
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Name: |
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Title: |
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THE TORONTO-DOMINION BANK | |
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By: |
/s/ |
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Name: |
Xxxxx Xxxxx |
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Title: |
Vice President and Director |
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By: |
/s/ |
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Name: |
Xxxx Xxxxxxx |
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Title: |
Vice President |
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CITIBANK, N.A., CANADIAN BRANCH | |
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By: |
/s/ |
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Name: |
Xxxxxxxx Xxxx |
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Title: |
Authorized Signatory |
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By: |
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Name: |
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Title: |
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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 MERIDAN LIMITADA | |
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By: |
/s/ |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Delegate |
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By: |
/s/ |
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Name: |
Xxxxxxx Xxxxxxx Xxxxxxx |
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Title: |
Delegate |
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YAMANA ARGENTINA HOLDINGS B.V. | |
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By: |
/s/ |
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Name: |
Xxxxxxx Xxxx |
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Title: |
Managing Director A |
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(signed in Florida, USA) |
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By: |
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Name: |
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Title: |
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YAMANA CHILE RENTISTA DE | |
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By: |
/s/ |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Delegate |
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By: |
/s/ |
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Name: |
Xxxxxxx Xxxxxxx Xxxxxxx |
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Title: |
Delegate |
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JACOBINA MINERACAO DE | |
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By: |
/s/ |
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Name: |
Arao Portugal |
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Title: |
Officer |
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By: |
/s/ |
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Name: |
Xxxxxxx Xxxxxxx Cintra |
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Title: |
Officer |
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MINERAÇÃO MARACÁ INDÚSTRIA E | |
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By: |
/s/ |
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Name: |
Arao Portugal |
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Title: |
Officer |
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By: |
/s/ |
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Name: |
Xxxxxxx Xxxxxxx Cintra |
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Title: |
Officer |
SCHEDULE A
LENDERS AND INDIVIDUAL COMMITMENTS
Lenders |
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Individual Commitment |
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The Bank of Nova Scotia |
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$ |
77,500,000 |
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The Royal Bank of Scotland N.V., (Canada) Branch |
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$ |
77,500,000 |
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BNP Paribas (Canada) |
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$ |
67,500,000 |
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Bank of America N.A., Canada Branch |
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$ |
67,500,000 |
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Royal Bank of Canada |
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$ |
67,500,000 |
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Canadian Imperial Bank of Commerce |
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$ |
67,500,000 |
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Export Development Canada |
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$ |
50,000,000 |
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Bank of Tokyo-Mitsubishi UFJ (Canada) |
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$ |
50,000,000 |
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Citibank, N.A., Canadian Branch |
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$ |
50,000,000 |
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The Toronto-Dominion Bank |
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$ |
50,000,000 |
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Barclays Bank PLC |
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$ |
35,000,000 |
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Credit Suisse AG, Toronto Branch |
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$ |
35,000,000 |
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National Bank of Canada |
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$ |
35,000,000 |
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Xxxxxx Xxxxxxx Bank, N.A. |
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$ |
20,000,000 |
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SCHEDULE H
APPLICABLE RATES
Level |
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Leverage Ratio |
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LIBOR Loan |
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Base Rate Loan |
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Standby Fee rate |
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I |
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> 2.50 |
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2.750 |
% |
1.750 |
% |
0.550 |
% |
II |
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> 2.0:1 to < 2.5:1 |
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2.250 |
% |
1.250 |
% |
0.450 |
% |
III |
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> 1.5:1 to < 2.0:1 |
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2.000 |
% |
1.000 |
% |
0.400 |
% |
IV |
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> 1.0:1 to < 1.5:1 |
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1.750 |
% |
0.750 |
% |
0.350 |
% |
V |
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< 1.0:1 |
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1.500 |
% |
0.500 |
% |
0.300 |
% |