SECOND SUPPLEMENTAL INDENTURE dated as of September 15, 1998,
between ECHO BAY MINES LTD., a corporation duly incorporated and
existing under the laws of Canada, having its registered office at
0000 XxxxXxxx Xxxxx, 00000-000 Xxxxxx, Xxxxxxxx, Xxxxxxx X0X 0X0 (the
"Company"), and Bankers Trust Company, a New York corporation, as
trustee (the "Trustee") under the Indenture dated as of March 27,
1997, between the Company and the Trustee (the "Original Indenture").
WHEREAS the Company and the Trustee have previously executed and delivered
a First Supplemental Indenture dated as of March 27, 1997 (the "First
Supplemental Indenture" and together with the Original Indenture, the
"Indenture"), pursuant to which the Company has issued its 11% Junior
Subordinated Debentures due 2027 (the "Capital Securities").
WHEREAS the Indenture provides that, during any Extension Period, interest
on the Capital Securities accrues at the rate of 12% per annum, compounded
semiannually and no interest payments are required to be made during an
Extension Period except at the end thereof.
WHEREAS the Company desires to supplement the Indenture with respect to the
Capital Securities pursuant to Section 9.1(b) of the Original Indenture in order
to add a covenant to pay additional interest in certain circumstances for the
benefit of Holders; and
WHEREAS all capitalized terms used herein, but not defined herein, are used
as defined in the Original Indenture or the First Supplemental Indenture, as the
case may be.
NOW THEREFORE, the Company covenants and agrees with the Trustee as
follows:
SECTION 1. The following Section 5.04 is hereby added to the First
Supplemental Indenture:
SECTION 5.04. Additional Deferred Interest. The Company shall pay to
each Holder on the Interest Payment Date that ends any Extension Period
(the "Final Interest Payment Date") an amount, as additional interest with
respect to such Extension Period, equal to the following:
one-half of one percent (.50%) times the principal amount outstanding,
compounded semiannually at twelve percent (12%) per annum on each
Interest Payment Date during the period from
and including the first Interest Payment Date on which the payment of
interest is deferred to but excluding the Final Interest Payment Date,
minus one-half of one percent (.50%) times the principal amount
outstanding.
The foregoing payment shall constitute additional Deferred Interest for all
purposes of the Indenture and shall be payable in addition to all amounts
of interest otherwise due with respect to the Capital Securities. The
obligation to pay the amount provided for in this Section 5.04 shall not in
any way affect the obligations of the Company otherwise arising hereunder.
SECTION 2. Ratification of Indenture. The Indenture, as supplemented by
this Second Supplemental Indenture, is in all respects ratified and confirmed,
and this Second Supplemental Indenture shall be deemed part of the Indenture in
the manner and to the extent herein and therein provided.
SECTION 3. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this Second Supplemental
Indenture.
SECTION 4. Governing Law. This Second Supplemental Indenture and each
Capital Security shall be deemed to be a contract made under the internal laws
of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
SECTION 5. Counterparts. This Second Supplemental Indenture may be executed
in any number of counterparts each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
3 SECTION 6. Successors. All agreements of the Company in this Second
Supplemental Indenture shall bind its successor. All agreements of the Trustee
in this Second Supplemental Indenture shall bind its successor.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the day and year first above written.
ECHO BAY MINES LTD.
by /S/ XXXXX X. XXXXXXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
[Seal]
BANKERS TRUST COMPANY,
as Trustee,
by /S/ XXXXX XXXXXXX
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
