FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, dated and effective as of June 22, 1998, by
and between Royal Oak Mines Inc., a corporation amalgamated under the laws of
Ontario, Canada (the "Company"), and Chase Manhattan Trust Company, National
Association, the successor to Mellon Bank, F.S.B., as Trustee (the "Trustee").
RECITALS OF ROYAL OAK MINES INC.
Royal Oak Mines Inc. issued an aggregate principal amount of $175 million
of 11% Senior Subordinated Notes due 2006 and Series B 11% Senior Subordinated
Notes due 2006 (collectively, the "Notes") pursuant to an Indenture, dated as of
August 12, 1996 (as amended and supplemented by the First Supplemental Indenture
dated and effective as of December 31, 1997, the Second Supplemental Indenture
dated and effective as of January 31, 1998, the Third Supplemental Indenture
dated and effective as of May 19, 1998 and the Fourth Supplemental Indenture
dated and effective as of the date hereof (as so amended and supplemented, the
"Indenture"), by and among Royal Oak Mines Inc., the Trustee and Kemess Mines
Inc. ("Kemess"). Kemess was a Guarantor as defined in and for the purposes of
the Indenture. On December 29, 0000, Xxxxx Xxx Xxxxx Inc. and Kemess
amalgamated under the laws of Ontario, Canada and the surviving entity of such
amalgamation is the Company. Unless otherwise defined herein, terms with
initial capitals shall have the meanings ascribed thereto in the Indenture.
Section 9.02 of the Indenture provides that the Indenture may be amended or
supplemented by the Company and the Trustee, when authorized by a resolution of
the board of directors of the Company and consented to in writing by the Holders
of at least a majority in aggregate principal amount of the outstanding Notes.
The Holders of a majority in aggregate principal amount of the outstanding Notes
have provided their written consent to the amendments and supplements to the
Indenture contained in this Fifth Supplemental Indenture, and the other
conditions precedent in the Indenture to the execution hereof have been
satisfied. Pursuant to Sections 9.02 and 9.05 of the Indenture, upon the
effective date (determined in accordance with the Indenture), which effective
date is June 22, 1998, of the amendments and supplements to the Indenture and
the agreements contained in this Fifth Supplemental Indenture, such amendments
and supplements and agreements will bind only each Holder of a Note who has
consented to this Fifth Supplemental Indenture and every subsequent Holder of a
Note or a portion of a Note that evidences the same debt as the consenting
Holder's Note.
AGREEMENT
Each party hereto agrees as follows for the benefit of the other party and
for the equal and ratable benefit of each Holder of a Note who has consented to
the amendments and supplements to the Indenture and the agreements contained in
this Fifth Supplemental Indenture and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder's Note:
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1. Section 1.01 of the Indenture is hereby amended by inserting in
alphabetical order in Section 1.01 the following definition:
"Consenting Holder of Notes" means a Holder of a Note, including for
purposes of the Fifth Supplemental Indenture, each holder of a
beneficial interest therein, who has given a Consent to the amendments
and supplements to the Indenture and the agreements contained in the
Fifth Supplemental Indenture and every subsequent Holder of a Note or
a portion of a Note, including the holders of beneficial interests
therein, that evidences the same debt as such consenting Holder's
Note, and "Consenting Holders of Notes" means each and every
Consenting Holder of Notes collectively.
2. The last sentence of Section 10.11 of the Indenture is hereby deleted and
replaced by the following:
Nothing herein contained shall be deemed to authorize the Trustee or
the holders of Senior Indebtedness or their Representative to
authorize or consent to or accept or adopt on behalf of any holder any
plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof. Nothing
herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness or their Representative to vote in
respect of the claim of any Holder in any such proceeding except as
hereinafter provided:
(a) As long as any Obligations of the Company under the
Senior Secured Debentures are outstanding, in the event of any
proceedings under any Bankruptcy Law or any other applicable law
relating to bankruptcy, insolvency, receivership or reorganization or
relief of debtors including without limitation any such proceedings
under the COMPANIES' CREDITORS ARRANGEMENT ACT (Canada), the
BANKRUPTCY AND INSOLVENCY ACT (Canada) or any other applicable
bankruptcy or insolvency legislation (a "Restructuring Proceeding"),
each Consenting Holder of Notes will do all things and take all steps
reasonably within its control or power to cause the Holders of Notes
to be placed in a different class of creditors than the Senior
Debentureholders in a Restructuring Proceeding where the members of
such class are entitled to vote in connection with such Restructuring
Proceeding ("a "Creditor Class"). None of the Trustee, the Collateral
Agent or any Consenting Holder of Notes will take any steps or bring
or participate in any proceedings whereby they assert that the Holders
of Notes should be placed in the same Creditor Class as the Senior
Debentureholders and, if notwithstanding the foregoing, a proposal or
other plan of compromise, arrangement or reorganization (a "Proposed
Plan") is submitted for acceptance or rejection to the creditors of
the Company, and the Proposed Plan places the claims of the Holders
of Notes in the same Creditor Class as the Senior Debentureholders, or
if a court determines that the Holders of Notes are to be placed in
the same Creditor Class as the Senior Debentureholders, then in each
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such case each Consenting Holder of Notes shall and hereby allows the
Senior Debentureholders to vote, and hereby assigns to and in favor of
the Senior Debentureholders for the purpose of permitting the Senior
Debentureholders to vote against and defeat any such Proposed Plan
made to any Creditor Class of the Company of which the Senior
Debentureholders and the Holders of the Notes are members, that
portion of the Company's Obligations under this Indenture and the
Notes and corresponding votes in respect thereof to which the
Consenting Holders of Notes are otherwise entitled in such
Restructuring Proceedings equal to the lesser of (i) all of the
Company's Obligations under this Indenture and the Notes held by the
Consenting Holders of Notes and the corresponding votes in respect
thereof; and (ii) that amount of the Company's Obligations under this
Indenture and the Notes held by the Consenting Holders of Notes and
the corresponding votes in respect thereof which, when aggregated with
the votes to which the Senior Debentureholders are entitled, will
permit the Senior Debentureholders to vote against and defeat such
Proposed Plan in such Restructuring Proceedings.
(b) Each of the Consenting Holders of Notes hereby appoints
each director or officer for the time being of a Senior
Debentureholder as attorney-in-fact to do all such acts and things,
including to execute and deliver for and in the name of the Consenting
Holders of Notes, all documents and instruments, to give effect to the
grant of the right to vote and the assignment of the Company's
Obligations under this Indenture and the Notes and the corresponding
votes in respect thereof by or on behalf of the Consenting Holders of
Notes to the Senior Debentureholders provided for in Section 10.11(a)
above, with full power of substitution in the premises, and the
Consenting Holders of Notes agree to ratify and confirm all acts of
the said attorney lawfully done in the premises pursuant to the powers
of attorney granted pursuant hereto. The powers of attorney granted
hereby are powers coupled with an interest, and shall continue
notwithstanding the insolvency, bankruptcy, dissolution or liquidation
of any Consenting Holder of Notes, or other event by which any such
party granting such power of attorney ceases to exist or to have
capacity.
(c) It is acknowledged and agreed that (i) the assignment
provided for in Section 10.11(a) above is for voting purposes only in
the context of a Restructuring Proceeding and (except as provided in
Section 10.11(c)(v)) the assignment shall not otherwise affect any
rights and entitlements of the Consenting Holders of Notes, (ii) any
voting rights so assigned shall be deemed to be assigned back to the
Consenting Holders of Notes immediately upon the termination of the
circumstances (which includes for greater certainty following the
final determination of any appeal therefrom) in which the Senior
Debentureholders require such votes to vote against and defeat a
Proposed Plan in a Restructuring Proceeding, (iii) the voting rights
so assigned to the Senior Debentureholders shall only be exercised to
allow the Senior Debentureholders to vote against and defeat a
Proposed Plan in a Restructuring Proceeding, (iv) the assignment of
voting rights of the Consenting Holders of Notes to the Senior
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Debentureholders provided for herein shall not affect the entitlement
of such Consenting Holders of Notes to receive any and all
consideration payable or paid or distributions made on the Notes as
calculated without regard to such assignment, (v) other than the loss
of the right of the Consenting Holders of Notes, if any, to cause a
Proposed Plan to be approved by the members of a Creditor Class of
which the Consenting Holders of Notes and the Senior Debentureholders
are, or but for this Section 10.11 would be, members, nothing in this
Section 10.11 shall prejudice any other right or entitlement of the
Consenting Holders of Notes in their capacity as creditors of the
Company to the treatment to which they would otherwise be entitled in
a Restructuring Proceedings, and (vi) the provisions of this Section
10.11 shall not apply to the Holders of Notes who are not Consenting
Holders of Notes.
(d) Notwithstanding anything to the contrary contained
herein, the rights under the Indenture of Holders who have not
consented to the Fifth Supplemental Indenture shall remain unaffected
hereby.
3. Section 6.09 of the Indenture is hereby amended by inserting, in the last
sentence thereof, after the words "or the rights of any Holder thereof, or"
the words ", except as described in Sections 10.11 and 12.11,".
4. The last sentence of Section 12.11 of the Indenture is hereby deleted and
replaced by the following:
Nothing herein contained shall be deemed to authorize the Trustee or
the holders of Guarantor Senior Indebtedness or their Representative
to authorize or consent to or accept or adopt on behalf of any holder
any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof. Nothing
herein contained shall be deemed to authorize the Trustee or the
holders of Guarantor Senior Indebtedness or their Representative to
vote in respect of the claim of any Holder in any such proceeding
except as hereinafter provided:
(a) As long as any Obligations of the Guarantor under the
Senior Secured Debentures are outstanding, in the event of any
proceedings under any Bankruptcy Law or any other applicable law
relating to bankruptcy, insolvency, receivership or reorganization or
relief of debtors including without limitation any such proceedings
under the COMPANIES' CREDITORS ARRANGEMENT ACT (Canada), the
BANKRUPTCY AND INSOLVENCY ACT (Canada) or any other applicable
bankruptcy or insolvency legislation (a "Restructuring Proceeding"),
each Consenting Holder of Notes will do all things and take all steps
reasonably within its control or power to cause the Holders of Notes
to be placed in a different class of creditors than the Senior
Debentureholders in a Restructuring Proceeding where the members of
such class are entitled to vote in connection with such Restructuring
Proceeding ("a "Creditor Class"). None of the Trustee, the
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Collateral Agent or any Consenting Holder of Notes will take any steps
or bring or participate in any proceedings whereby they assert that
the Holders of Notes should be placed in the same Creditor Class as
the Senior Debentureholders and, if notwithstanding the foregoing, a
proposal or other plan of compromise, arrangement or reorganization (a
"Proposed Plan") is submitted for acceptance or rejection to the
creditors of the Guarantor, and the Proposed Plan places the claims
of the Holders of Notes in the same Creditor Class as the Senior
Debentureholders, or if a court determines that the Holders of Notes
are to be placed in the same Creditor Class as the Senior
Debentureholders, then in each such case each Consenting Holder of
Notes shall and hereby allows the Senior Debentureholders to vote, and
hereby assigns to and in favor of the Senior Debentureholders for the
purpose of permitting the Senior Debentureholders to vote against and
defeat any such Proposed Plan made to any Creditor Class of the
Guarantor of which the Senior Debentureholders and the Holders of the
Notes are members, that portion of the Guarantor's Obligations under
its Guarantee of this Indenture and the Notes and corresponding votes
in respect thereof to which the Consenting Holders of Notes are
otherwise entitled in such Restructuring Proceedings equal to the
lesser of (i) all of the Guarantor's Obligations under its Guarantee
of this Indenture and the Notes held by the Consenting Holders of
Notes and the corresponding votes in respect thereof; and (ii) that
amount of the Guarantor's Obligations under its Guarantee of this
Indenture and the Notes held by the Consenting Holders of Notes and
the corresponding votes in respect thereof which, when aggregated with
the votes to which the Senior Debentureholders are entitled, will
permit the Senior Debentureholders to vote against and defeat such
Proposed Plan in such Restructuring Proceedings.
(b) Each of the Consenting Holders of Notes hereby appoints
each director or officer for the time being of a Senior
Debentureholder as attorney-in-fact to do all such acts and things,
including to execute and deliver for and in the name of the Consenting
Holders of Notes, all documents and instruments, to give effect to the
grant of the right to vote and the assignment of the Guarantor's
Obligations under its Guarantee of this Indenture and the Notes and
the corresponding votes in respect thereof by or on behalf of the
Consenting Holders of Notes to the Senior Debentureholders provided
for in Section 12.11(a) above, with full power of substitution in the
premises, and the Consenting Holders of Notes agree to ratify and
confirm all acts of the said attorney lawfully done in the premises
pursuant to the powers of attorney granted pursuant hereto. The
powers of attorney granted hereby are powers coupled with an interest,
and shall continue notwithstanding the insolvency, bankruptcy,
dissolution or liquidation of any Consenting Holder of Notes, or other
event by which any such party granting such power of attorney ceases
to exist or to have capacity.
(c) It is acknowledged and agreed that (i) the assignment
provided for in Section 12.11(a) above is for voting purposes only in
the context of a Restructuring Proceeding and (except as provided in
Section 12.11(c)(v)) the
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assignment shall not otherwise affect any rights and entitlements
of the Consenting Holders of Notes, (ii) any voting rights so assigned
shall be deemed to be assigned back to the Consenting Holders of Notes
immediately upon the termination of the circumstances (which includes
for greater certainty following the final determination of any appeal
therefrom) in which the Senior Debentureholders require such votes to
vote against and defeat a Proposed Plan in a Restructuring Proceeding,
(iii) the voting rights so assigned to the Senior Debentureholders
shall only be exercised to allow the Senior Debentureholders to vote
against and defeat a Proposed Plan in a Restructuring Proceeding, (iv)
the assignment of voting rights of the Consenting Holders of Notes to
the Senior Debentureholders provided for herein shall not affect the
entitlement of such Consenting Holders of Notes to receive any and all
consideration payable or paid or distributions made on the Notes as
calculated without regard to such assignment, (v) other than the loss
of the right of the Consenting Holders of Notes, if any, to cause a
Proposed Plan to be approved by the members of a Creditor Class of
which the Consenting Holders of Notes and the Senior Debentureholders
are, or but for this Section 12.11 would be, members, nothing in this
Section 12.11 shall prejudice any other right or entitlement of the
Consenting Holders of Notes in their capacity as creditors of the
Guarantor to the treatment to which they would otherwise be entitled
in a Restructuring Proceedings, and (vi) the provisions of this
Section 12.11 shall not apply to the Holders of Notes who are not
Consenting Holders of Notes.
(d) Notwithstanding anything to the contrary contained
herein, the rights under the Indenture of Holders who have not
consented to the Fifth Supplemental Indenture shall remain unaffected
hereby.
5. Each Consenting Holder of Notes authorizes, directs and ratifies the
inclusion of the provisions of paragraphs 2 and 4 hereof, or words of like
effect and substance, into the Inter-Creditor Agreement and agrees to be
subject to and bound by all of the provisions of the Inter-Creditor
Agreement as if an original signatory thereto.
By its execution and delivery of the Consents to the Trustee, each
Consenting Holder of Notes agrees with the Senior Debentureholders that the
provisions of this Fifth Supplemental Indenture constitute legal, valid and
binding obligations of the Consenting Holder of Notes in favour of the
Senior Debentureholders which are enforceable by the Senior
Debentureholders against each Consenting Holder of Notes in accordance with
their terms. The Senior Debentureholders may rely upon the statements,
acknowledgements, covenants and agreements of each Consenting Holder of
Notes made or given pursuant to this Fifth Supplemental Indenture and may
pursue and enforce any and all remedies resulting from any non-compliance
therewith or breach thereof notwithstanding that the Senior
Debentureholders are not signatories to this Fifth Supplemental Indenture.
The Consenting Holders of Notes, by their consents to this Fifth
Supplemental Indenture, hereby acknowledge and confirm for the benefit of
the Senior Debentureholders the provisions of Section 3.5(A) of the
Inter-Creditor Agreement. The
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provisions of this Fifth Supplemental Indenture shall be binding on a
Person only for so long as such Person is a Holder or Beneficial
Holder of the Notes and once the Note or part of the Note is
transferred to a subsequent Holder or Beneficial Holder, such prior
Holder or Beneficial Holder shall no longer be liable other than for
its non-compliance with or breach of the provisions of the Fifth
Supplemental Indenture committed while it was a Holder or Beneficial
Holder thereof. Notwithstanding anything to the contrary contained
herein, the Trustee shall have no duty to the Senior Debentureholders
or their successors and assigns to enforce or perform any obligations
of the Consenting Holders of Notes under the provisions of this Fifth
Supplemental Indenture or under Section 3.5 of the Inter-Creditor
Agreement.
6. The Indenture is hereby amended in every respect to the extent necessary to
give effect to all sections of this Fifth Supplemental Indenture and
conform the Indenture thereto.
7. The Fifth Supplemental Indenture is entered into, and the amendments and
supplements contained herein are made, pursuant to the provisions of
Section 9.02 and 9.05 of the Indenture with the written consent of the
Holders of a majority of the principal amount of Notes outstanding under
the Indenture. On or prior to the Fourth Supplemental Closing Date (as
defined in the Indenture) the Company shall deliver to the Trustee an
Officer's Certificate and an Opinion of Counsel pursuant to Section 7.02 of
the Indenture, in each case stating the matters required to be stated
therein pursuant to Sections 9.07, 13.04 and 13.05 of the Indenture and to
the effect that all conditions precedent to be performed by the Company
provided for in the Indenture relating to this Fifth Supplemental Indenture
have been complied with including, without limitation, the closing of each
of the transactions described in the definition of "Fourth Supplemental
Closing Date" in the Indenture and including such other matters as the
Trustee may reasonably require; whereupon, pursuant to Section 9.02 and
9.05 of the Indenture, this Fifth Supplemental shall be binding only upon
each Holder of a Note who has consented to the amendments and supplements
to the Indenture and the agreements contained in this Fifth Supplemental
Indenture and every subsequent Holder of a Note or a portion of a Note that
evidences the same debt as the consenting Holder's Note.
8. The Company hereby represents and warrants that:
(a) The execution, delivery and performance by the Company of this Fifth
Supplemental Indenture have been duly authorized by all necessary
corporate action on the part of the Company; and this Fifth
Supplemental Indenture has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability now or
hereinafter in effect relating to or affecting creditors' rights and
to general equity principles.
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(b) The execution, delivery and performance by the Company of this Fifth
Supplemental Indenture does not and will not (i) conflict with or
result in a breach of the terms, conditions or provisions of, (ii)
constitute a default under, (iii) give any Person the right to
accelerate any obligation under, or (iv) result in a violation of, (x)
the constituent documents of the Company, (y) any law, statute, rule,
regulation, instrument, order, judgment or decree to which the Company
is subject, including without limitation, any federal or state
securities laws or comparable laws of any Governmental Body or (z) any
agreement, note, mortgage, indenture, arrangement or other obligation
to which the Company is a party or by which it is bound.
(c) On or prior to the Fourth Supplemental Closing Date, the Company shall
deliver to the Trustee, for the benefit of the Holders of the Notes,
an Opinion of Counsel, stating the matters required to be stated in an
Opinion of Counsel pursuant to Section 13.05 of the Indenture and to
the effect set forth in subsections (a) and (b) above (and in giving
such opinion, Counsel may rely on an Officer's Certificate as to the
matters set forth in clause (z) of subsection (b) above) and to the
effect that the Indenture and this Fifth Supplemental Indenture
(including provisions hereof included in the Inter-Creditor Agreement)
comply with the TIA (as defined in the Indenture) as in effect on the
date hereof.
9. For the purposes of this Fifth Supplemental Indenture, the Company hereby
affirms its duty to indemnify and hold the Trustee harmless pursuant to
Section 7.07 of the Indenture. Nothing herein shall be read or interpreted
to limit or otherwise adversely affect the Trustee's rights, protections
and immunities under the Indenture, as amended and supplemented from time
to time. In furtherance and not in limitation of any provision of this
Indenture, the Trustee, the Collateral Agent, their agents, employees,
stockholders, directors, officers and attorneys make no representations or
warranties and shall not be responsible for any recital, statement,
representation or warranty (which shall in all cases be taken as recitals,
statements, representations and warranties of the Company or the Consenting
Holders of Notes, as applicable), in this Fifth Supplemental Indenture or
the Inter-Creditor Agreement (except as otherwise expressly provided in the
Inter-Creditor Agreement), any solicitation of consents by the Company of
Holders to this Fifth Supplemental Indenture or the Inter-Creditor
Agreement, or for any disclosure materials provided to any Person in
connection therewith or in connection with the incurrence of any
Indebtedness or for the compliance by the Company with any of the
provisions of the Indenture, including without limitation, section 4.07 of
the Indenture, or with any federal or state securities laws or any
comparable laws of any Governmental Body, or for the validity, sufficiency,
effectiveness, adequacy or priority, as applicable, of this Fifth
Supplemental Indenture, the Inter-Creditor Agreement (except as otherwise
expressly provided in Section 8.1 of the Inter-Creditor Agreement) and the
security granted or purported to be granted thereunder or any other
instrument involved in this transaction, or for the validity of the
execution by the Company of any such documents, instruments or agreements.
The Company hereby affirms its duty to indemnity and hold
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the Trustee, the Collateral Agent and their agents, employees,
stockholders, directors and officers harmless pursuant to Section 7.07
of the Indenture.
10. The Holders, by their consents to this Fifth Supplemental Indenture, hereby
authorize the Trustee to exercise the standard of care in entering into
this Fifth Supplemental Indenture as described in Section 7.01(b) (but not
7.01(a)) of the Indenture and hereby acknowledge and confirm that the
Trustee has made no statements, representations or warranties to any Holder
in connection with the solicitation of such Holder's consent, that the
Trustee has relied hereunder upon the authorization and directions of the
Holders contained herein and in their consents and upon Officer's
Certificates and Opinions of Counsel delivered to the Trustee, that the
Holders who have consented have had the opportunity to request such
information from the Company and other sources as they have considered
material to such consent and have been, or have had the opportunity to have
been, represented by counsel and/or financial advisors in negotiating the
terms of this Fifth Supplemental Indenture and the Inter-Creditor
Agreement, and that it is not the intention of such Holders that the
Trustee shall incur financial or other risk or liability as a result of
entering into this Fifth Supplemental Indenture or the Inter-Creditor
Agreement at the request and direction of the Holders. In furtherance and
not in limitation hereof, the terms of Article Seven of the Indenture are
hereby affirmed with respect to the Indenture and the Inter-Creditor
Agreement. The Trustee shall have no duty or responsibility to any Persons
under the Consents given by any Holder in respect of this Fifth
Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed and effective all as of the date first written
above.
ROYAL OAK MINES INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: C.F.O.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, AS TRUSTEE
By: /s/ Xxxxxx XxXxxxxx
----------------------------
Name: Xxxxxx XxXxxxxx
Title: Authorized Signatory
