APOLLO GOLD CORPORATION - and - APOLLO GOLD, INC. - and - THE CANADA TRUST COMPANY December 13, 2004
Exhibit
10.3
APOLLO
GOLD CORPORATION
-
and
-
APOLLO
GOLD, INC.
-
and
-
THE
CANADA TRUST COMPANY
December
13, 2004
FIRST
SUPPLEMENTAL INDENTURE
to
TRUST
INDENTURE PROVIDING FOR THE ISSUE OF UP TO U.S.$12,500,000 IN PRINCIPAL AMOUNT
OF 12% SERIES 2004-B CONVERTIBLE SECURED DEBENTURES
Xxxxxx,
Xxxxxxxx LLP
WHEREAS
Apollo
Gold Corporation (the "Corporation"),
Apollo Gold, Inc. ("AGI")
and
The Canada Trust Company (the "Trustee")
have
entered into a trust indenture (the "Trust
Indenture")
dated
November 4, 2004, providing for the issue of up to U.S.$12,500,000 in principal
amount of 12% series 2004-B convertible secured debentures (the "Debentures");
AND
WHEREAS
pursuant
to section 14.1(e) of the Trust Indenture, the Corporation, AGI and the Trustee
desire to alter the conversion provisions of the Debenture that may be issued
to
RAB Special Situations LP or its successors or any of their respective nominees
(collectively, "RAB")
and
make a modification to the form of Debenture that may be issued to RAB (the
"RAB
Debenture");
AND
WHEREAS capitalized
terms used but not defined herein have the meanings ascribed thereto in the
Trust Indenture;
NOW
THEREFORE THIS SUPPLEMENTAL INDENTURE WITNESSES
and it
is hereby covenanted, agreed and declared as follows:
1. |
Amendment
to Article 4
|
(a) |
Notwithstanding
Article 4 of the Trust Indenture, RAB shall not be permitted to convert
the Debenture, in whole or in part, into Common Shares, and the
Corporation shall not give effect to any such conversion, if, after
giving
effect to such conversion, RAB, together with any person or company
acting
jointly or in concert with RAB (the "Joint
Actors")
would in the aggregate beneficially own, or exercise control or direction
over that number of voting securities of the Corporation which is
twenty
percent (20%) or greater of the total issued and outstanding voting
securities of the Corporation, immediately after giving effect to
such
conversion. For greater certainty, the RAB Debenture shall not be
convertible by RAB, in whole or in part, into Common Shares, and
the
Corporation shall not give effect to any such conversion, if, after
giving
effect to such conversion, RAB, together with its Joint Actors, would
be
deemed to hold a number of voting securities sufficient to materially
affect the control of the Corporation.
|
(b) |
Prior
to converting the Debenture into Common Shares, RAB shall provide
the
Trustee with an officer's certificate stating the number of voting
securities of the Corporation held by RAB and its Joint Actors as
of the
date provided for in the conversion form (the "Officer's
Certificate").
|
(c) |
The
Trustee shall promptly forward the Officer's Certificate to the
Corporation and the Corporation shall be entitled to rely on the
Officer's
Certificate in making any determination regarding the total issued
and
outstanding voting securities of the Corporation to be held by RAB
and its
Joint Actors after giving effect to the
conversion.
|
(d) |
The
Corporation shall promptly notify the Trustee in writing in a Certificate
of the Corporation of the actual principal amount of the RAB Debenture
that has been converted based on the determination made by the Corporation
in accordance with this Section 1,
and the Trustee shall be entitled to rely conclusively on the Certificate
of the Corporation regarding the principal amount of the RAB Debenture
that has been converted.
|
(e) |
The
Trustee shall promptly notify the Holder of the RAB Debenture of
the
actual principal amount of the RAB Debenture that has been converted
based
on the Certificate of the Corporation delivered to the Trustee pursuant
to
Section 1(d)
above.
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2
2. |
Amendment
to RAB Debenture
|
The
following language shall be added to the RAB Debenture:
"Notwithstanding
anything contained herein to the contrary, the rights represented by this
Debenture shall not be convertible by the holder, in whole or in part, into
Common Shares, and the Corporation shall not give effect to any such conversion,
if, after giving effect to such conversion, the holder, together with any person
or company acting jointly or in concert with the holder (the "Joint Actors")
would in the aggregate beneficially own, or exercise control or direction over
that number of voting securities of the Corporation which is twenty percent
(20%) or greater of the total issued and outstanding voting securities of the
Corporation, immediately after giving effect to such conversion. For greater
certainty, the rights represented by this Debenture shall not be convertible
by
the holder, in whole or in part, into Common Shares, and the Corporation shall
not give effect to any such conversion, if, after giving effect to such
conversion, the holder, together with its Joint Actors, would be deemed to
hold
a number of voting securities sufficient to materially affect the control of
the
Corporation. Prior to exercising the rights represented by this Debenture,
the
holder shall provide the Trustee with an officer's certificate stating the
number of voting securities of the Corporation held by the holder and its Joint
Actors as of the date provided for in the conversion form (the "Officer's
Certificate") and the Corporation shall be entitled to rely on the Officer's
Certificate in making any determinations regarding the total issued and
outstanding voting securities of the Corporation to be held by the Holder and
its Joint Actors after giving effect to the conversion."
3. |
Ratification
of Indenture; Supplemental Indenture Part of Trust
Indenture
|
Except
as
expressly amended hereby, the Trust Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain
in
full force and effect.
4. |
Application
to Assignees of RAB
|
(a) |
If
RAB transfers or assigns its beneficial interest in any portion of
the RAB
Debenture to any person, RAB shall, in addition to complying with
Section
6.6.1 of the Trust Indenture, deliver to the Trustee and the Corporation
an officer's certificate of RAB stating whether the proposed transferee
is
a Joint Actor of RAB (the "Officer Transfer
Certificate").
|
(b) |
Application
of Amended Language in Replacement
Debenture
|
(i) |
If
the Officer Transfer Certificate states that a proposed transferee
is a
Joint Actor of RAB, the new debenture certificate to be issued to
the
transferee in replacement of the RAB Debenture certificate surrendered
for
cancellation pursuant to Section 6.6.1 of the Trust Indenture shall
contain the additional language as set out in Section 2
herein.
|
(ii) |
If
the Officer Transfer Certificate states that a proposed transferee
is not
a Joint Actor of RAB, the new debenture certificate to be issued
to the
transferee in replacement of the RAB Debenture certificate surrendered
for
cancellation pursuant to Section 6.6.1 of the Trust Indenture shall
not
contain the additional language as set out in Section 2
herein notwithstanding Section 6.6.1 of the Trust
Indenture.
|
3
(c) |
The
Trustee and the Corporation shall be entitled to rely on the Officer
Transfer Certificate in making any determination regarding whether
a
replacement certificate issuable to any transferee of beneficial
interest
in any portion of the RAB Debenture shall contain the additional
language
as set out in Section 2
herein.
|
5. |
Counterparts
and Formal Date
|
This
supplemental indenture may be executed in several counterparts, each of which
when so executed shall be deemed to be an original, and such counterparts
together shall constitute one and the same instrument.
6. |
Facsimile
or Electronic Execution
|
This
supplemental indenture may be executed by facsimile or electronic copy, each
copy when so executed being deemed to be an original.
SIGNATURE
PAGE TO FOLLOW
4
IN
WITNESS WHEREOF
the
parties hereto have executed this supplemental indenture as of the date first
written above.
APOLLO GOLD CORPORATION | ||
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|
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By: | /s/ X. Xxxxxxx Xxxxxx | |
Authorized Signing Officer |
||
I have the authority to bind the corporation. |
APOLLO GOLD, INC. | ||
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By: | /s/ Xxxxxx Xxxxxxx | |
Authorized Signing Officer |
||
I have the authority to bind the corporation. |
THE CANADA TRUST COMPANY | ||
|
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By: | /s/ Xxxxxxx Xxxxxx | |
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By: | /s/ Xxxxxxx X. Xxxxxx | |
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||
We have the authority to bind the corporation. |
*
* * *
*
ACKNOWLEDGEMENT
AND AGREEMENT
The
foregoing First Supplemental Indenture is hereby acknowledged, agreed to and
confirmed by the undersigned.
RAB
SPECIAL SITUATIONS LP,
by its
general partner, RAB
PARTNERS LIMITED
By: | /s/ X. Xxxxxx X. Xxxxxxxx | |
Authorized Signing Officer | ||
I have the authority to bind the corporation. |
5
ACKNOWLEDGEMENT
AND CONSENT
The
foregoing First Supplemental Indenture is hereby acknowledged and consented
to
by the undersigned.
REGENT
MERCANTILE BANCORP INC.
By: | /s/ Xxx Xxxxx | |
Authorized Signing Officer | ||
I have the authority to bind the corporation |
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