FOURTH SUPPLEMENTAL INDENTURE
FOURTH 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, and the Second Supplemental
Indenture dated and effective as of January 31, 1998, and the Third Supplemental
Indenture dated and effective as of May 19, 1998) (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 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 contained in
this Fourth Supplemental Indenture. Pursuant to Sections 9.02 and 9.05 of the
Indenture, upon the effective date (determined in accordance with the Indenture)
of the amendments and supplements to the Indenture contained in this Fourth
Supplemental Indenture, the Indenture as supplemented and amended by the Fourth
Supplemental Indenture will bind every Holder.
AGREEMENT
Each party hereto agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Notes:
1. The second preamble paragraph to the Indenture is hereby amended by
deleting the words "Series B 11% Senior Subordinated Notes due 2006" (the
"Exchange Notes") and substituting therefor in the preamble to the
Indenture the words "Series B Secured 12.75% Senior Subordinated Notes due
2006".
2. The title to each of the Exchange Notes is hereby changed to "Secured
12.75% Senior Subordinated Notes due 2006". Each issued and outstanding
Note and the form of Notes
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annexed to the Indenture as Exhibit B are hereby amended accordingly.
The Exchange Notes are the only Notes outstanding under the Indenture.
3. The interest rate payable on the Notes shall increase by 175 basis points
to 12.75% per annum effective on and after May 30, 1998. Each issued and
outstanding Note and the form of Notes annexed to the Indenture as Exhibit
B are hereby amended accordingly. No exchange of the Notes is necessary to
effect the amendments of the Notes hereunder.
4. Section 1.01 is hereby amended by deleting in their entirety the
definitions of "Asset Sale", "Bankruptcy Law", "Commodity Agreement",
"Custodian" "Kemess South" and "Senior Secured Debentures" contained in
that section and by inserting in alphabetical order in Section 1.01 the
following definitions:
"Acceptance Notice" has the meaning attributed thereto in Section 5.1 of
the Inter-Creditor Agreement."
"Amalgamation" has the meaning attributed thereto in Section 5.01."
"APM" means Arctic Precious Metals, Inc., a Nevada corporation."
"Applicable Law" means, in respect of any Person, property, transaction or
event, all applicable laws, statutes, rules, by-laws and regulations, and
all applicable official written directives, orders, judgements and decrees
of Governmental Bodies."
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease, assignment or other transfer by the Company or by any of
its Restricted Subsidiaries (including any Sale and Leaseback Transaction)
to any Person other than to the Company or to a direct or indirect wholly
owned Restricted Subsidiary of the Company of (i) any Capital Stock of any
Restricted Subsidiary of the Company or (ii) any other property or assets
of the Company or of any Restricted Subsidiary of the Company, other than
with respect to this clause (ii) any disposition of mineral products in the
ordinary course of business.
"Bankruptcy Law" means the United States Federal Bankruptcy Code of 1978,
as amended from time to time, state or foreign law for the relief of
debtors and any other applicable insolvency or other similar laws of any
jurisdiction including, without limitation, any law of any jurisdiction
permitting a debtor to obtain a stay or a compromise of the claims of its
creditors against it or any laws of any jurisdiction permitting a creditor
or officer of the court to enforce rights or remedies against the property,
assets and undertaking of a debtor by contract or at law, including,
without limitation, a court ordered or contractual appointment of a
Custodian."
"Beneficial Holders" has the meaning attributed thereto in Section 6.12."
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"Collateral" means the property, assets and undertaking of the Company
(other than the Excluded Assets) and its Restricted Subsidiaries charged or
in which the Trustee or the Collateral Agent is granted a Lien pursuant to
the Security Documents and all replacements, substitutions and additions
thereto and all income, gains and distributions thereon and proceeds
thereof, of whatsoever nature and kind."
"Collateral Agent" means initially CIBC-Mellon Trust Company, a Canadian
trust company, chartered under the LOAN AND TRUST COMPANIES ACT (Canada)
its successors and assigns, and any other Person appointed from time to
time as collateral agent hereunder, provided, that for the purposes of the
Inter-Creditor Agreement, the Trustee may be required to therein act as the
"U.S. Collateral Agent" to the extent it holds Collateral and in such
capacity shall be considered a "Collateral Agent" hereunder."
"Commodity Agreement" of any Person means any option or futures contract or
similar agreement or arrangement and all payments which become due and
payable upon termination thereof or of any transaction thereunder and
includes any contract for the sale of copper concentrate."
"Company Purchase Offer" has the meaning attributed thereto in Section
4A.06."
"Consents" means the form of Consent To Fourth and Fifth Supplemental
Indentures, Inter-Creditor Agreement, Security Documents and Waiver
requested of the Holders in connection with the transactions contemplated
in the Fourth Supplemental Indenture, the Fifth Supplemental Indenture and
the Letter Agreement (as defined herein)."
"Custodian" means any receiver, manager, receiver/manager, interim
receiver, agent, liquidator, trustee, assignee or similar person or
representative under any Bankruptcy Law and whether appointed by a court or
otherwise."
"Eligible Holders" and "Eligible Holder" has the meanings attributed
thereto in Section 6.12."
"Excluded Assets" means the Windy Craggy Property."
"Existing Hedging Indebtedness" means the present and future debts,
liabilities and obligations of the Company or its affiliates to Bankers
Trust Company, The Bank of Nova Scotia and Macquarie Bank Limited and their
respective affiliates, successors or assigns pursuant to or in any way
related to Commodity Agreements, Interest Swap Obligations, Foreign
Exchange Obligations or Currency Agreements, whether matured or unmatured,
originally entered into by the Company or its affiliates on or prior to the
date hereof (in this definition "Contracts"), and the present and future
debts, liabilities and obligations of the Company or its affiliates to
Bankers Trust Company, The Bank of Nova Scotia and Macquarie Bank Limited
or their respective affiliates, successors and assigns pursuant to or in
any way related to instruments or agreement entered into after the date
hereof, where such instruments or agreements are entered into to replace,
amend, extend the
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maturity of or rollover Contracts (including such as previously replaced,
amended, extended or rolled over), or otherwise to extend or reschedule
payments due thereunder."
"Final Deposit Time" has the meaning attributed thereto in Section 6.13."
"Fourth Supplemental Closing Date" means the date on which the Trustee
receives an Officer's Certificate certifying that all of the following have
occurred, subject to any applicable escrow conditions: (i) the closing of
the issuance and sale of the Senior Secured Debentures; (ii) the execution,
delivery and registration or filing of the Security Documents and execution
and delivery of the Inter-Creditor Agreement as each is contemplated in
this Fourth Supplemental Indenture; and (iii) the completion of the
issuance of shares and payments contemplated in paragraphs 1 and 8 of the
letter agreement, dated May 15, 1998 (the "Letter Agreement"), between the
Company and the Proposing Noteholders (as defined in the said letter
agreement)."
"Governmental Body" means any government, parliament, legislature, or any
regulatory, authority, agency, commission or board of any government,
parliament or legislature, or any court or (without limitation to the
foregoing) any other law, regulation or rule-making entity (including,
without limitation, any central bank, fiscal or monetary authority or
authority regulating banks), having jurisdiction in the relevant
circumstances, or any Person acting under the authority of any of the
foregoing (including, without limitation, any arbitrator)."
"Hazardous Substance" includes but is not limited to any contaminants,
pollutants, dangerous substances, liquid wastes, industrial wastes, toxic
substances, hazardous wastes, hazardous materials of whatsoever nature or
kind or any other hazardous substance within the meaning of any Applicable
Law including without limitation the HAZARDOUS PRODUCTS ACT (Canada), the
CANADIAN ENVIRONMENTAL PROTECTION ACT (Canada), the ENVIRONMENTAL
PROTECTION ACT (Ontario) and the WASTE MANAGEMENT ACT (B.C.)."
"In Agreed Form" means, with respect to any document to be delivered by the
Company or any Restricted Subsidiary to the Trustee under or pursuant to
this Fourth Supplemental Indenture, the receipt by the Trustee of an
Officer's Certificate and Opinion of Counsel, upon each of which the
Trustee may conclusively rely, to the effect that: (i) such document is in
substantially the same form and substance as any comparable document
previously delivered or to be delivered contemporaneously by the Company or
such Restricted Subsidiary to the Senior Debentureholders (other than as it
pertains to the priority of a Lien), such document is authorized or
permitted by the Indenture and that the form and substance of such document
complies with all of the terms of this Indenture; or (ii) if no such
comparable document has or is to be delivered by the Company or such
Restricted Subsidiary to the Senior Debentureholders, the form and
substance of such document is authorized or permitted by this Indenture and
the form and substance of such document complies with all of the terms of
this Indenture."
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"Initial Deposit Time" has the meaning attributed thereto in Section 6.13."
"Inter-Creditor Agreement" means the inter-creditor agreement incorporated
herein by reference, to be dated and effective as of the Fourth
Supplemental Closing Date among Trilon, Northgate Exploration Limited, the
Trustee, the Collateral Agent, APM and the Company, which agreement shall
be in the form annexed as Exhibit E hereto, as amended or supplemented from
time to time in accordance with this Indenture."
"Kemess Mine" means the Kemess North Property and Kemess South Mine."
"Kemess Newco" means the wholly owned Restricted Subsidiary of the Company
into which, at the request of the Senior Debentureholders, the Company will
transfer ownership of the Kemess Mine and related assets."
"Kemess Newco Guarantee and Assumption" means the guarantee and assumption
agreement to be given by Kemess Newco, in compliance with Sections 4.20 and
4.21 of the Indenture and In Agreed Form, to the Trustee for the benefit of
the Holders of the Notes, of the Company's obligations under the
Indenture."
"Kemess Newco Liens" means the present and future fixed and floating Liens
to be granted by Kemess Newco to the Trustee or the Collateral Agent in all
of its property, assets and undertaking, including the Kemess Mine and
related assets, which Lien will be In Agreed Form and will secure the
payment and performance by Kemess Newco of its obligations under the Kemess
Newco Guarantee and Assumption."
"Kemess North Property" means all present and future property, assets and
undertaking comprising or relating to what is generally referred to as the
Kemess North property in British Columbia, Canada, including, without
limitation all mineral claims and leases referred to in Exhibit F hereto,
all buildings, equipment, fixtures and other property and assets owned or
leased by the Company (or in which the Company otherwise has an interest)
situated or used at the Kemess North Property site, all operations,
exploration and other activities carried on at such site and all permits,
authorizations, licenses and similar approvals relating thereto."
"Kemess South Mine" means all present and future property, assets and
undertaking comprising or relating to what is generally referred to as the
Kemess South property in British Columbia, Canada, including, without
limitation, all mineral claims and leases referred to in Exhibit G hereto,
all buildings, equipment, fixtures and other property and assets owned or
leased by the Company (or in which the Company otherwise has an interest)
situated or used at the Kemess South Mine site, all operations, exploration
and other activities carried on at such site and all permits,
authorizations, licenses and similar approvals relating thereto."
"Kemess South Resources Limited Partnership" means the limited partnership
by that name formed under the laws of the Province of British Columbia, and
its successors and assigns."
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"Nighthawk Lake Mine" means the property covering approximately 11,726 acres
representing 254 claims in both Cody and Xxxxxxx Townships, Ontario, with most
of the property held outright by the Company as staked mineral claims and the
remaining property held through various agreements and subsidiary companies."
"Noteholder Liens" means the present and future Liens held by the Trustee, or a
Collateral Agent, to secure payment and performance of the obligations of the
Company and its Restricted Subsidiaries under the Indenture, the Notes and the
Security Documents."
"Pamour Mine" means the property (exclusive of the Xxxxx properties) located in
Whitney Township approximately 15 miles east of Timmins, Ontario which consists
of 38 patented mining claims and one license of occupation covering
approximately 1,531 acres of mining and surface rights."
"Purchase Event" has the meaning attributed thereto in Section 5.1 of the
Inter-Creditor Agreement."
"Purchase Event Price" has the meaning attributed thereto in Section 6.13."
"Purchase Event Record Date" means the Business Day following the date on which
the Trustee publishes a notice on Bloomberg in accordance with Section 4.06(f)."
"Royalty Agreement" means an agreement between the Company and Trilon to be
dated and effective as of the Fourth Supplemental Closing Date, as such royalty
agreement is amended or supplemented from time to time."
"Royalty Debenture" means the debenture granted by the Company to Trilon to
secure the Obligations of the Company under the Royalty Agreement, as amended or
supplemented from time to time."
"Royalty Interest" means a royalty interest in gross revenues of the Kemess Mine
granted by the Company to Trilon in accordance with the Royalty Agreement."
"Sale and Leaseback Transaction" means, in respect of any Person, any direct or
indirect sale, issuance, conveyance, transfer, lease, assignment or other
transfer of any property or assets of such Person to any other Person following
which such other Person leases back to such Person such property or assets."
"Securities Purchase Agreement" means an agreement between the Company and
Trilon made the 17th day of April, 1998, as amended or supplemented from time to
time."
"Security Documents" means, collectively, the agreements, instruments and
documents delivered from time to time to the Trustee or any Collateral Agent by
the Company, Kemess Newco and APM, and any other Restricted Subsidiary, for the
purpose of creating, perfecting, preserving or protecting the Liens in favor of
the Trustee or the
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Collateral Agent for the benefit of the Holders, which secure the payment and
performance by the Company and its Restricted Subsidiaries of their respective
obligations under the Indenture and the Notes and such Security Documents and
including any guarantees thereof. The Security Documents as of the date hereof
are described in Exhibit H hereto.
"Senior Debentureholders" means the holders from time to time of the Senior
Secured Debentures."
"Senior Debentures Security" means the present or future Permitted Liens held by
the Senior Debenture holders to secure the obligations of the Company under or
in respect of the Senior Secured Debentures, the Documents (as defined in the
Senior Secured Debentures) and the Securities Purchase Agreement and including
any guarantees thereof."
"Senior Secured Debentures" means the Series A Senior Secured Debenture and the
Series B Senior Secured Debenture in the aggregate principal amount not to
exceed US$120 million to be issued to Trilon and Northgate Exploration Limited,
pursuant to the terms of the Securities Purchase Agreement and includes without
limitation (i) any amendment or supplement thereto from time to time and (ii)
each Refinancing thereof from time to time with Trilon, Northgate Exploration
Limited or any other Persons."
"Senior Secured Parties" means collectively the holders of Permitted Liens
described in clauses (i), (ii), (iii), (vii), (xii) and (xiii) of the definition
of Permitted Liens on the property, assets or undertaking of the Company or any
Restricted Subsidiary, including, without limitation, Kemess Newco and their
respective successors and assigns."
"Subscribing Eligible Holder" has the meaning attributed thereto in Section
6.13."
"Trilon" means Trilon Financial Corporation, its successors and assigns."
"Windy Craggy Property" means the mineral claims in and around Windy Craggy
Mountain in the Tatshenshini/Alesk region of northwestern British Columbia."
"Working Capital Facility" means (i) a working capital facility in a principal
amount not to exceed US$45 million or (ii) a working capital facility in excess
of US$45 million, provided that the lenders thereof execute and deliver an
inter-creditor agreement In Agreed Form in favor of the Trustee and any
Collateral Agent that provides to the Holders at least the same rights and
benefits as set out in Section 5.1 of the Inter-Creditor Agreement, as amended
or supplemented from time to time, and in respect of which the Trustee has
received, at the expense of the Company, a favorable opinion from an Independent
Financial Advisor that the working capital facility is on conventional market
terms, in each case in compliance with Section 4.12 of this Indenture, and any
Refinancing thereof from time to time."
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5. The definitions of "Foreign Exchange Contracts", "Currency Agreements" and
"Interest Swap Obligations" in Section 1.01 are hereby amended by deleting
the period and adding the following words, at the end of each of those
definitions:
"and all payments which become due and payable upon termination
thereof or of any transaction thereunder."
6. Clause (vii) of the definition of "Indebtedness" in Section 1.01 is hereby
deleted and replaced by the following:
"(vii) comprising net liabilities under Interest Swap Obligations,
Foreign Exchange Obligations, Currency Agreements and Commodity
Agreements;"
7. The definition of "Mining Related Assets Investment" in Section 1.01 is
hereby amended by adding the following words, at the end of the definition:
"and including payment of accounts payable incurred in connection
with the making of any such Investment or capital expenditures."
8. The definition of "Permitted Liens" in Section 1.01 is hereby deleted in
its entirety and replaced with the following:
"Permitted Liens" means:
(i) Liens on the property, assets or undertaking of the Company or of a
Restricted Subsidiary that, in each case, secure Senior Indebtedness
of the Company or such Restricted Subsidiary permitted under
paragraph (b) of section 4.12;
(ii) Liens on the property, assets or undertaking of the Company or of a
Restricted Subsidiary that, in each case, secure Indebtedness
permitted under clause (v) of the definition of Permitted
Indebtedness contained in section 4.12;
(iii) Liens on the property, assets or undertaking of the Company or of a
Restricted Subsidiary that, in each case, secure Indebtedness
permitted under clause (vii) of the definition of Permitted
Indebtedness contained in section 4.12;
(iv) Liens securing Indebtedness of a Person existing at the time that
such Person is merged into or consolidated with the Company or
Restricted Subsidiary, provided that such Liens were in existence
prior to the completion of such merger or consolidation and do not
extend to any assets other than those of such Person;
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(v) Liens on property acquired by the Company or a Restricted
Subsidiary, provided that such Liens were in existence prior to
the contemplation of such acquisition and do not extend to
any other property;
(vi) Liens on the property, assets or undertaking of the Company that,
in each case, secure the royalty payments to be made by the
Company or a Restricted Subsidiary to Kemess South Resources
Limited Partnership or, upon dissolution to the partners
thereof, in respect of copper extracted and processed from
the Kemess South property;
(vii) (a) Liens on the property, assets or undertaking of the Company or
a Restricted Subsidiary that secure Indebtedness of not more than
US$60 million in aggregate principal amount at any time under
Existing Hedging Indebtedness, Currency Agreements, Interest Swap
Obligations, Foreign Exchange Obligations and Commodity
Agreements; and (b) Liens on the property, assets or undertaking
of the Company that, in each case, secure Capitalized Lease
Obligations or Purchase Money Obligations, in each case to the
extent that such Indebtedness is Permitted Indebtedness under
this Indenture;
(viii) (a) Liens in favor of the Company or any direct or indirect
wholly owned Restricted Subsidiary; and (b) Liens to secure
Indebtedness permitted under clause (xiv) of the definition of
Permitted Indebtedness;
(ix) Liens incurred, or pledges and deposits in connection with,
workers' compensation, unemployment insurance and other social
security benefits, and leases, appeal bonds and other obligations
of like nature incurred by the Company or any Restricted
Subsidiary in the ordinary course of business;
(x) Liens imposed by law, including, without limitation, mechanics',
carriers' warehousemen's, materialmen's, suppliers' and vendors'
Liens, incurred by the Company or any Restricted Subsidiary in
the ordinary course of business;
(xi) Liens for AD VALOREM, income or property taxes or assessments and
similar charges which either are not delinquent or are being
contested in good faith by appropriate proceedings for which the
Company has set aside on its books reserves to the extent
required by GAAP;
(xii) Liens on the property, assets or undertaking of the Company that,
in each case, secure the Obligations of the Company under the
Royalty Agreement, including pursuant to the Royalty Debenture;
(xiii) Liens on the property, assets or undertaking of any Restricted
Subsidiary, including, without limitation, Kemess Newco, that
secure Indebtedness
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under guarantees or assumptions of Indebtedness described in
clause (xiii) of the definition of "Permitted Indebtedness"
contained in Section 4.12, provided that in respect of
Indebtedness referred to in clauses (ii), (iii) and (iv) of the
definition of "Permitted Indebtedness" as referred to in clause
(xiii), such Liens shall be permitted only to the extent they
comply with the provisions of clause (vii)(a) of the definition
of "Permitted Lien";
(xiv) Liens granted by the Company and its Restricted Subsidiaries to
the Trustee or any Collateral Agent pursuant to the terms hereof,
provided that in respect of Indebtedness referred to in clauses
(ii), (iii) and (iv) of the definition of "Permitted
Indebtedness" as referred to in clause (xiv), such Liens shall be
permitted only to the extent that they, in the aggregate, secured
Indebtedness of not more than US$60 million under the guarantees
described in such clause (xiv);
(xv) rights reserved to or vested in any government or governmental
body by the terms of any lease, licence, franchise, grant or
permit, or by any statutory provision, to terminate the same, to
take action which results in an expropriation, to designate a
purchase of any property subject thereto or to require annual or
other payments as a condition to the continuance thereof;
(xvi) zoning restrictions, easements, rights of way, leases or other
similar encumbrances or privileges in respect of real property
which in the aggregate do not materially impair the use of such
property by the Company or any Restricted Subsidiary in the
operation of its business;
(xvii) security given by the Company or a Restricted Subsidiary to a
public utility or any governmental body, when required by such
utility or governmental body in connection with the operations of
the Company or such Restricted Subsidiary in the ordinary course
of its business, which singly or in the aggregate do not
materially detract from the value of the asset concerned or
materially impair its use in the operation of the business of the
Company or such Restricted Subsidiary;
(xviii) the reservation in any original grants from any Governmental Body
of any land or interest therein and statutory exceptions to
title; and
(xix) title defects or irregularities which are of a minor nature and
which do not materially detract from the value of the assets of
the Company or its Restricted Subsidiaries encumbered thereby.
9. The definition of "Refinancing Indebtedness" in Section 1.01 of the
Indenture is hereby amended by deleting the words in brackets in the
third and fourth lines and substituting therefor the following words:
"(other than pursuant to clauses (v), (vi), (vii), (viii), (ix),
(xii), (xiii) or (xiv) of the definition of "Permitted
Indebtedness")."
10. Section 4.06 is hereby amended by adding the following at the end of clause
4.06(a):
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"The Officer's Certificate delivered pursuant to this Section
4.06(a) shall be accompanied by an Opinion of Counsel (i) stating
that, in the opinion of such counsel, subject to customary
exclusions and exceptions reasonably acceptable to the Trustee,
either (A) all such action has been taken with respect to the
recording, registering, filing, rerecording and refiling of the
Indenture, all supplemental indentures, the Security Documents,
financing statements, continuation statements and all other
instruments of further assurance as is necessary to maintain the
Noteholder Liens and the Kemess Newco Liens and reciting the
details of such action or referring to prior Opinions of Counsel in
which such details are given, and stating that all financing
statements and continuation statements have been executed and filed
and such other actions taken that are necessary fully to preserve
and protect the rights of the Holders and the Trustee hereunder and
under the Security Documents, or (B) no such action is necessary to
maintain the Noteholder Liens and the Kemess Newco Liens, if any,
and (ii) stating what, if any, action of the foregoing character is
necessary during the one-year period commencing April 1 in the then
current calendar year to so maintain the Noteholder Liens and the
Kemess Newco Liens during such period."
Section 4.06 is further amended by adding the following clauses thereto:
"(e) On the written request, from time to time, of Holders of at
least a majority in aggregate principal amount of the outstanding
Notes, the Company shall deliver to those Holders making such
request such financial information, reports or other materials as
the Company delivers to the Senior Debentureholders or is required
to deliver to the Senior Debentureholders pursuant to the terms
thereof. Notwithstanding the foregoing, the Company shall not be
required to provide any such information which is confidential and
not otherwise generally available to the holders of the common
shares of the Company.
(f) The Company shall deliver to the Trustee a true and complete
copy of any notice that it receives from the Senior Debentureholders
which constitutes a Purchase Event and the Company shall notify the
Trustee in writing of the occurrence of any event which constitutes a
Purchase Event or of any event which with the giving of notice or
passage of time will constitute a Purchase Event, whether or not the
Company receives notice thereof from the Senior Debentureholders, in
each case immediately (but in any event within one Business Day) after
the Company obtains notice or actual knowledge thereof. Upon the
earlier of the Company receiving such notice or becoming aware of such
circumstances the Company shall no later than within one Business Day
issue a press release that: (i) states that a Purchase Event has
occurred or with the giving of notice or passage of time
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will occur; (ii) provides a description of the Purchase Event;
(iii) contains a statement that upon the occurrence of a Purchase
Event, Eligible Holders have the right for a limited period of time
to buy the Senior Secured Debentures and the Senior Debentures
Security; (iv) states the time period within which a purchase must
be effected under the Inter-Creditor Agreement in respect of the
subject Purchase Event; and (v) provides notice that a conference
call concerning the Purchase Event will be convened by the Company
within no later than two Business Days of the date of the press
release and the details for participation in such conference call
shall. The press release will be disseminated on those wire
services and publications customarily used by the Company to
disseminate financial information and information concerning
material events. At the expense of the Company, the Trustee shall
mail a copy of any notice received by it pursuant to this Section
4.06(f) or pursuant to Section 5.1 of the Inter-Creditor Agreement
to each Holder within one Business Day (5 Business Days if the
Notes are no longer held in book-entry form by the Depositary)
after the Trustee's receipt thereof, by first class mail to such
Holder's address as set forth in the Registrar's books and the
Trustee shall, as soon as practicable but in no event later than
three Business Days of the earlier of its receipt of any such
notice or the date a Trust Officer obtains actual knowledge of the
occurrence of a Purchase Event, publish an announcement in the form
prescribed in Exhibit I on the Bloomberg wire service. The Trustee
shall have no further or other duty under this Section 4.06(f) and
shall not be liable to any Person for the accuracy, content,
adequacy or delivery to any Person of such notice, or for any
action taken thereupon by any Person."
11. Section 4.11 of the Indenture is amended by inserting the words "(other
than the transfer of the Kemess Mine and related assets by the Company
to Kemess Newco in accordance with the terms of the Indenture)" after
the words "$15 million" in line 20 therein.
12. The definition of "Permitted Indebtedness" in section 4.12 of the
Indenture is hereby deleted and replaced in its entirety with the
following:
"Permitted Indebtedness" means, without duplication, each of the following:
(i) Indebtedness under the Notes, this Indenture, any Guarantee, the
Security Documents and the Kemess Newco Guarantee and Assumption;
(ii) Existing Hedging Indebtedness;
(iii) Indebtedness in respect of Commodity Agreements of the Company
and Restricted Subsidiaries provided however that in entering
into such Commodity Agreements after the Fourth Supplemental
Closing Date the Company and the Restricted Subsidiaries are
in compliance with Section 4.22 of this Indenture and
provided, further, that such Commodity
-13-
Agreements (other than those involving the sale of copper
concentrate to the extent the following is not relevant to such
copper concentrate agreements) are entered into to reduce the
exposure of the Company and its Restricted Subsidiaries to
fluctuations in the prices of commodities;
(iv) Indebtedness under Interest Swap Obligations, Foreign Exchange
Obligations and Currency Agreements of the Company and the
Restricted Subsidiaries; provided, however, that such Interest
Swap Obligations, Foreign Exchange Obligations and Currency
Agreements are entered into to protect the Company and its
Restricted Subsidiaries from fluctuations in interest or
exchange rates on Indebtedness Incurred in accordance with
this Indenture to the extent the notional principal amount of
such Interest Swap Obligation, Foreign Exchange Obligation or
Currency Agreements does not exceed the principal amount of
the Indebtedness to which such Obligation relates; and
provided, further, that the Company may enter into Foreign
Exchange Obligations and Currency Agreements to protect the
Company and its Restricted Subsidiaries from fluctuations in
exchange rates related to the operating costs of the Company
and its Restricted Subsidiaries, in each case consistent with
past practice of the Company;
(v) Indebtedness under the Working Capital Facility to the extent
that, as of any date, the aggregate of the principal amount of
such Indebtedness and the principal amounts outstanding under
the Senior Secured Debentures does not at such date exceed
US$120 million and provided, however that from and after the
date of the Company's request to the Trustee for the release
contemplated by Section 4A.12, the aggregate amount of
Indebtedness that, at any time, is "Permitted Indebtedness"
under this clause (v) shall not exceed US$45 million less the
aggregate principal amount outstanding under the Senior
Secured Debentures."
(vi) Capitalized Lease Obligations and Purchase Money Obligations
of the Company or any Restricted Subsidiary not to exceed,
calculated using foreign exchange rates on date of Incurrence,
US$25 million in aggregate principal outstanding at any one
time;
(vii) Indebtedness under or in relation to the Senior Secured
Debentures in aggregate principal amounts not to exceed, as of
any date, US$120 million, together with all interest, fees,
and other amounts payable under or in respect of the Senior
Secured Debentures and the Senior Debentures Security,
provided that, if the aggregate principal amount of, under or
in respect of the Senior Secured Debentures (excluding
interest, fees and other amounts payable under or in respect
of the Senior Secured Debentures and the Senior Debentures
Security) is equal to or less than US$45 million at any time,
and if at such time, the Trustee is required to release and
discharge the Noteholder Liens following compliance by the
Company with and in accordance with Section 4A.12, the
aggregate principal amount of, under or in respect of the
Senior Secured Debentures that, at any time, is "Permitted
Indebtedness" under this clause (vii) shall not exceed US$45
million together with all interest, fees and other
-14-
amounts payable under or in respect of the Senior Secured
Debentures and the Senior Debentures Security;
(viii) Indebtedness of a direct or indirect Restricted Subsidiary of
the Company to the Company or to a direct or indirect wholly
owned Restricted Subsidiary of the Company for so long as such
Indebtedness is held by the Company or a direct or indirect
wholly owned Restricted Subsidiary of the Company in each case
subject to no Lien held by a Person other than the Company,
any direct or indirect wholly owned Restricted Subsidiary of
the Company, any of the Senior Secured Parties or the Trustee
or any Collateral Agent, in each case for benefit of the
Noteholders; provided that if as of any date any Person other
than the Company, any direct or indirect wholly owned
Restricted Subsidiary of the Company, any of the Senior
Secured Parties or the Trustee or any Collateral Agent, in
each case for the benefit of the Noteholders owns or holds any
such indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the Incurrence of
Indebtedness not constituting Permitted Indebtedness by the
issuer of such Indebtedness;
(ix) Indebtedness of the Company to a direct or indirect wholly
owned Restricted Subsidiary of the Company for so long as such
Indebtedness is held by a direct or indirect wholly owned
Restricted Subsidiary of the Company in each case subject to
no Lien; provided that (a) any Indebtedness of the Company to
any direct or indirect Restricted Subsidiary of the Company is
unsecured and subordinated, pursuant to a written agreement,
to the Company's obligations under this Indenture and the
Notes, and (b) if as of any date any Person other than a
direct or indirect wholly owned Restricted Subsidiary of the
Company owns or holds any such Indebtedness or any Person
holds a Lien in respect of such Indebtedness, such date shall
be deemed the Incurrence of Indebtedness not constituting
Permitted Indebtedness under this clause (ix) by the issuer of
such Indebtedness;
(x) Guarantees by Restricted Subsidiaries of the Company of
Indebtedness of the Company (other than Permitted
Indebtedness) Incurred on or after the Issue Date; provided
that such Indebtedness was Incurred in compliance with this
Section 4.12;
(xi) subject to Section 4A.16, Refinancing Indebtedness;
(xii) Indebtedness of the Company or any Restricted Subsidiary
(including, without limitation, Kemess Newco), when and if
incurred, under or in relation to the Royalty Agreement and
the Royalty Debenture;
(xiii) notwithstanding clause (x) of this definition of Permitted
Indebtedness, guarantees or assumptions by Restricted
Subsidiaries (including, without limitation, Kemess Newco) of
Indebtedness and Obligations permitted under clauses (i),
(ii), (iii), (iv), (v), (vi), (vii) and (xii) of this
definition of Permitted Indebtedness; and
-15-
(xiv) guarantees by the Company of Indebtedness and Obligations of
or assumed by Kemess Newco of Indebtedness permitted under
clauses (i), (ii), (iii), (iv), (v), (vi), (vii) and (xii) of
this definition of Permitted Indebtedness."
13. Section 4.13 of the Indenture is hereby amended by: (a) deleting the word
"or" at the end of clause (7); (b) inserting an "or" at the end of clause
(8); and (c) adding the following after clause (8):
"(9) the Senior Secured Debentures to the extent such Senior
Secured Debentures or related documents restrict payment or
distributions of any kind from any Restricted Subsidiary,
including without limitation, Kemess Newco, to the Company or
other Restricted Subsidiary without the prior written consent
of the Senior Debentureholders after the occurrence and during
the continuance of a "Default" or "Event of Default" (as
defined in the Senior Secured Debentures provided that no
Restricted Subsidiary, including Kemess Newco, shall be
affected by a Payment Restriction under or by reason of the
Senior Secured Debentures unless such Restricted Subsidiary
has and continues to be jointly and severally liable as a
Guarantor for the performance by the Company of its
obligations under the Notes, the Indenture and the Security
Documents and such Restricted Subsidiary has granted Liens to
the Trustee or any Collateral Agent for the benefit of the
Holders to secure such obligations."
14. Section 4.16 of the Indenture is hereby amended by: (i) deleting the
introductory paragraph and paragraph (a) thereof; (ii) adding the
following new introductory paragraph and paragraphs (a), (a.1) and (a.2);
(iii) adding an "s" to the first use of the word "paragraph" in paragraph
(b); (iv) deleting the "(a)" after the first use of the word "paragraphs"
as amended as aforesaid in paragraph (b); (v) adding "(a)(iii), (a)(iv) and
(a)(v)" after the word "paragraphs" as amended as aforesaid; and (vi)
inserting the word "Investment" after the words "Mining Related Assets" in
the 14th line of paragraph (b):
The Company shall not and shall not permit any of its
Restricted Subsidiaries to, consummate any Asset Sale,
including without limitation, an Asset Sale of the Kemess
South Mine or any undivided interest therein, without the
prior written consent of the Holders of a majority in
aggregate principal amount of the outstanding Notes.
Notwithstanding the foregoing, so long as no Default, Event of
Default or Purchase Event has occurred or would occur as a
result, the Company and its Restricted Subsidiaries may effect
Asset Sales, free and clear of the Noteholder Liens and the
Kemess Newco Liens, on the following terms:
(a) The Asset Sale of:
(i) any machinery, equipment, other personal property or other
similar property that has become worn out, obsolete, or
unserviceable, which property, if Collateral, shall be replaced
with or substituted for with machinery, equipment or other property
not
-16-
necessarily of the same character but being of at least equal value
and utility to the Company and its Restricted Subsidiaries as the
property so disposed of, which replacement property shall, without
further action, become subject to the Noteholder Liens and the Kemess
Newco Liens;
(ii) or abandonment of any personal property the use of which is
no longer necessary or desirable in or material to the conduct of
the business of the Company and its Restricted Subsidiaries and the
maintenance of their respective earnings;
(iii) any real property or any interest therein which is
undeveloped and held by the Company or a Restricted Subsidiary for
exploration purposes and is not material to the conduct of the
business of the Company and its Restricted Subsidiaries (and for
greater certainty, not real property comprising the Kemess South
Mine) provided that: (A) the Asset Sale is at a price at least
equal to fair market value; (B) to the extent that the proceeds
of sale are Cash or Cash Equivalents, the Net Cash Proceeds are
applied in accordance with Section 4.16(b) hereof within 180 days
of receipt thereof by the Company or a Restricted Subsidiary, as
applicable, and if in accordance with Section 4.16(b) the Net
Cash Proceeds are applied to or invested in Mining Related Asset
Investments and the assets and properties sold were Collateral,
the properties and assets acquired as a result of the Mining
Related Assets Investment shall, upon such investment being made,
be subject to the Noteholder Liens and the Kemess Newco Liens,
without further action, and if, to the extent that, the proceeds
of such Asset Sale are not Cash or Cash Equivalents, the non-cash
consideration shall, upon the closing of such Asset Sale, be
subject to the Noteholder Liens and the Kemess Newco Liens
without further action;
-17-
(iv) any assets and properties of the Company or a Restricted
Subsidiary, other than assets described in clauses (i), (ii), and (iii)
above, and other than assets which comprise or are in any way material
to the Kemess South Mine or the Capital Stock of Kemess Newco for so
long as the Capital Stock of Kemess Newco is subject to the Noteholder
Liens, provided that (A) the Asset Sale is at a price at least equal
to fair market value; (B) at least 85% of the consideration received
therefrom by the Company or a Restricted Subsidiary is in the form of
Cash or Cash Equivalents; (C) the Net Cash Proceeds are applied in
accordance with Section 4.16(b) hereof, within 180 days of receipt
thereof by the Company or a Restricted Subsidiary, as applicable;
(D) if in accordance with Section 4.16(b) the Net Cash Proceeds are
applied to or invested in Mining Related Asset Investments and the
assets and properties sold were Collateral, the properties and assets
acquired as a result of the Mining Related Assets Investment shall,
upon such investment being made, be subject to the Noteholder Liens
and the Kemess Newco Liens, without further action; and (E) the amount
of Net Cash Proceeds that may be applied in accordance with this clause
(iv) shall not exceed US$15 million in any calendar year;
(v) any assets and properties of the Company or a Restricted
Subsidiary, other than assets described in clauses (i), (ii) and (iii)
above, and other than assets which comprise or are in any way material
to the Kemess South Mine or the Capital Stock of Kemess Newco for so
long as the Capital Stock of Kemess Newco is subject to the Noteholder
Liens, provided that (A) the Asset Sale is at a price at least equal
to fair market value; (B) at least 85% of the consideration therefrom
received by the Company or a Restricted Subsidiary is in the form of
Cash or Cash Equivalents; (C) Net Cash Proceeds are applied to repay
any Senior Indebtedness secured by the assets involved in such
disposition or, if there is no such secured Senior Indebtedness,
to repay Senior Indebtedness in each case within 180 days of receipt
thereof by the Company or a Restricted Subsidiary, as applicable;
(D) to the extent that there are any Net Cash Proceeds remaining
after such application of proceeds to Senior Indebtedness or, to the
extent that any such Senior Indebtedness so reduced is re-borrowed,
such remaining Net Cash Proceeds or amounts re-borrowed from time to
time shall be applied in accordance with Section 4.16(b) within the
aforesaid 180 days of receipt in the case of such remaining Net Cash
Proceeds or within 30 days of receipt in the case of money re-
borrowed; and (E) if in accordance with Section 4.16(b) the Net Cash
Proceeds are applied to or invested in Mining Related Asset
Investments and the assets and properties sold were Collateral,
the properties and assets acquired as a result of the Mining
Related Assets Investment, shall upon such investment being made,
be subject to the Noteholder Liens and the Kemess Newco Liens,
without further action;
-18-
(a.1) Nothing in this Section 4.16 shall limit or prohibit the Company
or a Restricted Subsidiary, in the ordinary course of their
respective businesses from; (A) selling inventory; (B)
collecting, liquidating, selling, factoring or otherwise
disposing of, accounts receivable or notes receivable; or (C)
making cash payments (including scheduled repayments of
Indebtedness permitted to be incurred under this Indenture) that
are not otherwise prohibited by this Indenture, all free and
clear of the Noteholder Liens and the Kemess Newco Liens;
(a.2) The Trustee shall provide all such releases and discharges of
the Noteholder Liens and the Kemess Newco Liens as the Company
may request, at the Company's sole cost and expense, to give
effect to the foregoing provided that each such request is
accompanied by (I) an Officers' Certificate attesting that:
(1) the assets to be sold hereunder do not comprise and are
not in any way material to the Kemess South Mine; (2) the
assets to be sold hereunder come within the description of the
assets permitted to be sold in clauses (i), (ii) or (iii)
above; (3) with respect to clause (iii) above, the conditions
set out in paragraph (A) therein have been satisfied; (4) with
respect to clause (iv) above, the conditions set out in
paragraphs (A), (B) and (E) therein have been satisfied; (5)
with respect to clause (v) above, the conditions set out in
paragraphs (A) and (B) therein have been satisfied; as
applicable; and (II) if required by TIA Section 314(d) in the
case of any Asset Sales described above, a certificate or
opinion, which complies with the requirements of TIA Section
314(d), of an engineer, appraiser or other expert as to the
fair market value of the property subject to the Asset Sale or
the property acquired as a result of the Mining Related Asset
Investment. The Trustee, in confirming that the requirements
of this Section 4.16 and TIA Section 314(d) have been
satisfied, shall be fully protected in relying upon such
Officers' Certificates and expert's certificates or opinions,
as applicable. The Liens provided for herein shall be subject
to the provisions of Section 4A.14 hereof."
15. Section 4.20 of the Indenture is hereby amended by deleting the ";" and all
of the language that follows the ";" in clause (iii) thereof and by adding
a "." in place of the ";" so deleted.
16. Sections 4.21 and 4.22 of the Indenture are deleted in their entirety and
the following sections are added at the end of Article 4:
"SECTION 4.21 KEMESS NEWCO GUARANTEE AND ASSUMPTION
The Company is hereby permitted to transfer the Kemess Mine to Kemess
Newco provided that contemporaneously with such transfer the Trustee
receives:
(i) the Kemess Newco Guarantee and Assumption which evidences Kemess
Newco's assumption and agreement to observe and perform all the
covenants and obligations of the Company under this Indenture;
-19-
(ii) the Kemess Newco Liens;
(iii) a fixed and specific Lien In Agreed Form in any debt, equity or
other consideration issued by Kemess Newco to the Company upon
the transfer of the Kemess Mine to Kemess Newco;
(iv) an Opinion of Counsel as to the enforceability of the Kemess
Newco Guarantee and Assumption and the Kemess Newco Liens,
subject to customary exclusions and exceptions; and
(v) an Officers' Certificate and an Opinion of Counsel, each stating
that such transfer as described in this Indenture will, upon
giving effect to such transfer, comply with the applicable
provisions of the Indenture.
SECTION 4.22 COMMODITY AGREEMENTS
Except in connection with Existing Hedging Indebtedness, the Company
shall not, and it shall not permit any Restricted Subsidiary, to enter
into any Commodity Agreement, pursuant to which the Company or a
Restricted Subsidiary has sold puts on gold, silver, copper or any other
precious metals without simultaneously writing calls for a corresponding
quantity of the same metal (and effectively creating a hedge) or enter
into any other transaction which has the effect of creating a net long
position on gold, silver, copper or any other precious metals produced
by the Company or a Restricted Subsidiary."
SECTION 4.23 INSURANCE
The Company shall, and shall cause each Restricted Subsidiary to:
(i) keep its properties and assets insured and maintain public liability
insurance in accordance with Section 4.05 (b);
(ii) provide the Trustee with certificates for all insurance policies,
with proof of loss payable as required in subparagraph (iii) below,
annually at the same time that the Company delivers its Officer's
Certificates under section 4.06 (a); and
(iii) provide that any loss under all such insurance policies (other than
policies in respect of third party liability and business
interruption insurance) in excess of Cdn. $500,000 shall be payable
to the Trustee subject only to any prior rights which may be held in
such proceeds by the holders of Permitted Liens, provided that if a
Default or Event of Default has not occurred, the Company or such
Restricted Subsidiary shall be entitled to receive such loss payment
directly if the entire amount thereof is:
(a) used to repair or replace the lost or damaged property in
question if the lost or damaged property relates to the
Kemess Mine; or
(b) if the lost or damaged property does not in any way relate
to the Kemess Mine either (x) used to repair or replace the
lost or
-20-
damaged property in question or (y) after applying such loss
payment or a portion thereof to the reasonable costs of any
required remediation of the lost or damaged property, used
and distributed as the proceeds of an "Asset Sale"
pursuant to and in accordance with Section 4.16 hereof; and
(c) the Company or such Restricted Subsidiary delivers to the
Trustee an Officer's Certificate attesting to the matters
described in (a) or (b) above, as applicable.
The Trustee shall provide all such releases and discharges from the
Noteholder Liens and the Kemess Newco Liens of any proceeds or loss
payment under insurance policies as the Company may request, at the
Company's sole cost and expense, provided that each such request is
accompanied by (i) the aforesaid Officers' Certificate attesting to
the matters described in clauses (a) and (b) above and (ii) if
required by TIA Section 314(d), a certificate or opinion, which
complies with the requirements of TIA Section 314(d), of an engineer,
appraiser or other expert as to the fair value of any property
replacing any such lost or damaged property. The Trustee, in
confirming that the requirements of this Section 4.23 and TIA
Section 314(d) have been satisfied, shall be fully protected in
relying upon such Officers' Certificate and expert's certificate
or opinion, as applicable. The Trustee shall have no duty to
examine, review or maintain copies of any policies of insurance
required hereunder.
SECTION 4.24 ROYALTY INTEREST AMENDMENT
The Company shall not, without the prior consent of the Holders of a
majority in aggregate principal amount of the outstanding Notes,
amend the Royalty Agreement so as to increase the Initial Royalty
Rate (as defined therein) or amend Section 2.2 and 7.2(c) thereof.
SECTION 4.25 ENVIRONMENTAL MATTERS
(i) The Company shall maintain, and shall cause each of its
Subsidiaries to maintain, a system to assure and monitor continued
compliance with all Applicable Laws relating to the environment,
which system shall include periodic reviews of such compliance.
(ii) The Company shall indemnify the Trustee and the Collateral
Agent and their respective officers, directors, employees, agents
and shareholders, and shall hold each of them harmless from and
against any and all losses, liabilities, damages, costs, expenses
and claims (including legal fees and expenses of its counsel and agents)
suffered or incurred by such party in respect of (a) any violation by the
Company or any Subsidiary of Applicable Law related to the environment
including the assertion of any Lien thereunder, (b) the presence of
any Hazardous Substance affecting the Collateral or any property adjacent
thereto or (c) the release of any Hazardous Substance by the Company or any
Subsidiary into the environment, provided that the foregoing indemnity
shall not apply in connection with any negligence, willful misconduct or
violation of any Applicable
-21-
Law relating to the environment affecting the Collateral by the Trustee,
the Collateral Agent or their respective agents after taking possession of
the Collateral. The Company's obligations and indemnification under this
section shall survive the satisfaction and release of the Security
Documents and the repayment of the principal, interest and all other monies
payable under this Indenture and the Notes. The Trustee shall hold the
benefit of this indemnity in trust for those indemnified parties who are
not parties to this Indenture.
17. The following Article is to be inserted into the Indenture after Article 4,
which Article shall read in its entirety as follows:
"ARTICLE 4A - SECURITY
SECTION 4A.01 - SECURITY
As security for the due and punctual payment and performance of all of its
obligations to the Noteholders under and in respect of this Indenture and
the Notes, the Company shall execute and deliver to the Trustee or the
Collateral Agent in each case for the benefit of the Holders of the Notes,
valid and enforceable Liens against all present and after acquired
property, assets and undertaking of the Company, except the Excluded
Assets, all In Agreed Form, including without limitation, the following:
(i) a security debenture by the Company creating a fixed and floating
Lien on all of the Company's present and after acquired property,
assets and undertaking including, without limitation, fixed and
specific Liens on all property, assets and undertaking comprising
Kemess Mine;
(ii) a general security agreement by the Company creating a Lien on all
of the Company's present and after acquired property, assets and
undertaking;
(iii) a limited guarantee by APM of the obligations of the Company to
the Noteholders;
(iv) a general security agreement by APM creating a Lien on all of
APM's present and after acquired property, assets and undertaking;
(v) assignments of the Company's interests in all material mining
claims, concessions and leases in any way relating to the Kemess
Mine;
(vi) an assignment by the Company of its rights and interests in the
Kemess South Resources Limited Partnership;
(vii) if, and to the extent required by the Senior Debentureholders, an
assignment (and where required, consents to such assignment) by
the Company of its rights and interests in all Kemess Mine
construction contracts;
(viii) if, and to the extent required by the Senior Debentureholders an
assignment (and, where required, consent to such assignment) by
the
-22-
Company of its rights and interest in those agreements of the
Company which are material to the Kemess Mine and which have not
been fully performed by the parties thereto, including without
limitation, agreements which relate to construction underway or
proposed at Kemess Mine and including, without limitation,
royalty refining and shipping agreements;
(ix) pledges of all the shares in the capital of APM held by the
Company; and
(x) such other agreements and documents as may be necessary or
desirable to grant to the Trustee or the Collateral Agent valid
and enforceable Liens on all of the property, assets and
undertaking of the Company other than the Excluded Assets.
Notwithstanding anything to the contrary contained in the foregoing, the
Company shall not be obligated to register the Liens against any real
property or mineral claims consisting of: (a) the Pamour Mine, the
Nighthawk Lake Mine and the mines generally known as Giant, HopeBrook
and Colomac; and (b) the Company's currently existing exploration
properties not in any way related to the Kemess Mine. The Company shall
register Liens against the Pamour Mine and the Nighthawk Lake Mine in
favor of the Trustee or the Collateral Agent should the Company at some
subsequent time grant Liens against (either or both) such mines to the
Senior Debentureholders. The Company shall insure that all of the
Security Documents are executed and delivered in accordance with this
Section 4A.01 such that the Liens created thereby are perfected in all
jurisdictions and at all times required to maintain such perfection by
the Trustee or the Collateral Agent for the benefit of the Noteholders.
SECTION 4A.02 - EFFECT OF LIENS
The Trustee or the Collateral Agent shall have and hold the Security
Documents and the Collateral and all rights hereby and thereby conferred
unto the Trustee and the Collateral Agent, and their respective
successors and assigns forever, but in trust, nevertheless, for the
equal benefit and security of the Holders of all Notes without any
preference or priority between them and with the powers and authorities
and subject to the terms and conditions set forth in this Indenture, the
Inter-Creditor Agreement and in the Security Documents. The Company
hereby represents and warrants that the Company has executed and
delivered, filed and recorded and will execute and deliver, file and
record, all instruments and documents, and has done and will do all such
acts and other things, at the Company's expense, as are necessary to
subject the Collateral to the Noteholder Liens and the Kemess Newco
Liens, as applicable. The Company will execute and deliver, file and
record all instruments and do all acts and other things as may be
reasonably necessary or advisable to perfect, maintain and protect the
Noteholder Liens and the Kemess Newco Liens, as applicable. The Company
shall furnish to the Trustee and the Collateral Agent, promptly after
the execution and delivery of the Security Documents and promptly after
the execution and delivery of any amendment hereto or thereto or any
other instrument of further assurance, an Opinion of Counsel stating
that, in the opinion of such counsel, subject to customary exclusions
and exceptions reasonably acceptable to the Trustee, either (i) the
Security Documents, any such amendment and all other instruments of
further assurance have been properly recorded, registered and
-23-
filed and all such other action has been taken to the extent necessary
to make effective the Liens intended to be created by the Security
Documents, and reciting the details of such action or referring to prior
Opinions of Counsel in which such details are given, or (ii) no such
action is necessary to make the Liens intended to be created by the
Security Documents effective.
SECTION 4A.03 - EXCEPTION AS TO THE LAST DAY OF ANY LEASES.
The mortgages, pledges and charges created under the Security Documents
shall not extend or apply to the last day of the term of any lease,
whether oral or written, or any agreement therefor, now held or
hereafter acquired by the Company or Restricted Subsidiary as tenant,
but should such mortgage, pledge and charge become enforceable and the
Trustee or the Collateral Agent determines or becomes bound to enforce
the same, the Company or Restricted Subsidiary shall thereafter stand
possessed of such last day and shall hold it in trust to assign the same
to any person who may acquire such term or the part thereof hereby
mortgaged, pledged or charged in the course of any enforcement of such
mortgage, pledge and charge or any realization of the subject matter
thereof.
SECTION 4A.04 - EFFECTIVE DATE OF SECURITY.
The Liens created under the Security Documents shall be effective upon
the date of the execution of the Security Documents.
SECTION 4A.05 - DISCHARGE OF SECURITY.
The Trustee and the Collateral Agent shall at the request and the
expense of the Company, release and discharge this Indenture and the
security created pursuant to the Security Documents (unless such
security has otherwise been released and discharged pursuant to the
terms hereof) and execute and deliver such instruments as it is advised
by an Opinion of Counsel are requisite for that purpose and to release
the Company from its covenants herein contained (other than provisions
related to the compensation and indemnification of the Trustee) upon the
discharge of the Indenture in accordance with the provisions of Article
Eight.
SECTION 4A.06 - PURCHASE OFFER
In the event that the Company, at any time before August 15, 2001, makes
an all cash offer to purchase (the "Company Purchase Offer") all of the
outstanding Notes at a purchase price not less than 105.5% of the
principal amount thereof plus all accrued and unpaid interest, if any,
to the date of purchase, and less than all of the outstanding Notes are
tendered in response to the Company Purchase Offer, the Company shall
complete the purchase of those Notes that are so tendered (which Company
Purchase Offer must be completed no later than 60 days after being made
by the Company) and, upon completion of the Company Purchase Offer, the
Company shall deliver to the Trustee an Officers' Certificate and an
Opinion of Counsel confirming such completion and the Trustee shall
-24-
release all of the property, assets and undertaking of the Company and
its Restricted Subsidiaries from the Noteholder Liens and the Kemess
Newco Liens. The Trustee shall provide all such releases and discharges
of the Noteholder Liens and the Kemess Newco Liens as the Company may
request, at the Company's sole cost and expense. Following the
completion of the Company Purchase Offer, interest on amounts
outstanding under the remaining Notes shall accrue at the rate of 11 %
per annum (subject to any default rate as set out in the Indenture) and
shall be paid in accordance with the terms hereof. In making a Company
Purchase Offer, the Company shall comply with all tender offer rules
applicable under state and Federal Securities laws in the United States
of America, including, but not limited to, Section 14(e) under the
EXCHANGE ACT and Rule 14e-1 thereunder, to the extent applicable to such
Company Purchase Offer. A Company Purchase Offer shall be conducted at
the expense of the Company in accordance with the redemption procedure
set out in Article 3. Any such Company Purchase Offer shall include a
summary of the provisions of this Section 4A.06, including, without
limitation, a description of the consequences of any Holder's failure to
tender such Holder's Notes.
SECTION 4A.07 CONFLICTS.
Except with respect to Section 13.01, if a conflict or inconsistency
exists between a provision of this Indenture and a provision of the
Security Documents, the provision of this Indenture shall prevail.
Except with respect to Section 13.01 and except as between the Company,
the Holders, the Trustee and the Collateral Agent with respect to the
entitlements, protections and immunities of the Trustee contained in
Section 6.10 and Article Seven of the Indenture, if a conflict or
inconsistency exists between a provision of this Indenture or any of the
Security Documents and a provision of the Inter-Creditor Agreement, then
the provisions of the Inter-Creditor Agreement shall prevail.
Notwithstanding any provision of the Indenture, the Inter-Creditor
Agreement or the Security Documents, the provisions of Section 10.13 of
the Indenture shall remain in full force and effect.
SECTION 4A.08 CO-OPERATE.
Upon the occurrence and during the continuance of an Event of Default
and if the Trustee shall have determined or become bound to enforce the
Liens, the Company and any Restricted Subsidiaries shall from time to
time execute and do all such acts and things as the Trustee or any
Collateral Agent may, acting reasonably, require to facilitate the
realization of the Collateral or any part thereof, whether under this
Indenture or the Security Documents or by judicial proceedings, and to
give any notices and directions which the Trustee or any Collateral
Agent may, acting reasonably, consider expedient.
SECTION 4A.09 NO MERGER
The Security Documents shall not merge in any other security. No
judgment obtained by the Trustee shall in any way affect the provisions
of this Indenture or any of the Security Documents. For greater
certainty, no judgment obtained by the Trustee shall in any way affect
the obligation of the Company to pay principal, fees and interest at the
rates, times and in the manner provided in this Indenture
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and the Notes and to compensate and indemnify the Trustee, including,
without limitation, each Collateral Agent as provided in this Indenture.
SECTION 4A.10 ADDITIONAL SECURITY
The Company hereby covenants and agrees to execute and deliver or cause
to be executed and delivered to or for benefit of the Trustee and the
Collateral Agent such additional Security Documents In Agreed Form as
the Company or any Restricted Subsidiary grants to the Senior
Debentureholders from time to time.
SECTION 4A.11 FURTHER ASSURANCES -SECURITY
From time to time the Company shall, at the expense of the Company, take
or cause to be taken such action (including, without limitation, the
provision of information and access to property) and execute and deliver
or cause to be executed and delivered to the Trustee or the Collateral
Agent, such agreements, convenances, deeds and other documents and
instruments as the Trustee, at the written request of the Holders of a
majority in principal amount of the outstanding Notes, shall reasonably
request in furtherance of granting to the Trustee or the Collateral
Agent valid and enforceable Liens on all of the Company's present and
after acquired property, assets and undertaking to which they are
entitled hereunder and the Company shall, at the expense of the Company,
register, file or record the same (or a notice or financing statement in
respect thereof) in all offices and in all jurisdictions where such
registration, filing or recording is necessary or advisable to
constitute, perfect and maintain such Liens; provided however that any
such Liens shall be In Agreed Form and shall be subject and subordinate
to present and future Permitted Liens in such property, assets and
undertaking held by the Senior Secured Parties. The Company shall renew
and amend such recordings, filings or registrations from time to time as
and when required to keep them in full force and effect. The Company
shall from time to time, if and when required to do so by the Trustee
upon the request of the Holders of a majority in principal amount of the
outstanding Notes and on the Fourth Supplemental Closing Date, furnish
the Trustee with an Opinion of Counsel as to compliance with the
provisions of Section 4A.02 and this Section 4A.11. The Trustee or the
Collateral Agent is hereby authorized to enter into such further and
other documents as may reasonably be required to permit perfection of
the Liens in the Collateral granted by this Indenture or the Security
Documents or to permit registration of instruments of further assurance
or collateral mortgages.
SECTION 4A.12 - PARTIAL DISCHARGES
Provided that (i) there shall have been no Default or Event of Default
that has occurred and is continuing; and (ii) the Company delivers to
the Trustee an Officers' Certificate to which are attached (A) a
confirmation in writing from the Senior Debentureholders that the
aggregate principal amount then outstanding under the Senior Secured
Debentures at such time (other than interest, fees and other amounts
payable under or in respect of the Senior Secured Debentures and the
Senior Debentures Security) is equal to or less than U.S.$45 million;
and (B) a confirmation in writing from the lenders under the Working
Capital Facility
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confirming the maximum amount available thereunder and the actual
Indebtedness of the Company thereunder at such time and such Officers'
Certificate certifies that the aggregate principal amount of the
Indebtedness of the Company under the Senior Secured Debentures, as
permanently reduced, and the greater of the maximum amount available
under in respect of the Working Capital Facility and the actual
Indebtedness of the Company under or in respect of the Working Capital
Facility do not in aggregate and on a permanent basis exceed U.S.$45
million, the Trustee shall, upon written request and at the expense of
the Company, release and discharge the Noteholders' Liens from the
assets and properties of the Company and its Restricted Subsidiaries,
other than the Kemess South Mine. The Trustee, in confirming that the
requirements of this Section 4A.12 (including, without limitation, the
absence of a continuing Default or Event of Default) have been
satisfied, shall be entitled to receive and shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel.
SECTION 4A.13 PRIORITY.
Subject to Sections 4A.14 and 4A.15, any reference to Permitted Liens
contained in this Indenture or the Security Documents in and of itself
shall not expressly or by implication result in any Permitted Liens
ranking ahead of the charges or security interests created pursuant to
this Indenture or the Security Documents.
SECTION 4A.14 - PRIORITY OF LIENS
Notwithstanding the time of granting of Permitted Liens, or the time of
registering, filing or recording the same (or a notice or financing
statement in respect thereof) the Permitted Liens and beneficial rights
of each of the Senior Secured Parties in the assets, properties and
undertaking of the Company and its Restricted Subsidiaries and the
proceeds thereof shall be senior and prior to the Noteholder Liens,
Kemess Newco Liens and beneficial rights of the Trustee, the Collateral
Agent and any Noteholder therein; and (ii) the Noteholder Liens, Kemess
Newco Liens and beneficial rights of the Trustee, the Collateral Agent
and any Noteholder in the assets, properties and undertaking of the
Company and its Restricted Subsidiaries shall be and are hereby
subordinated and postponed to the Liens and beneficial rights of each of
the Senior Secured Parties therein.
Each Holder of Notes, by its acceptance of them, authorizes and
expressly directs the Trustee and the Collateral Agent on its behalf to
take such action as may be necessary or appropriate to effectuate, as
between the Senior Secured Parties and the Holders of Notes, the
aforesaid subordination and postponement of the Noteholder Liens, Kemess
Newco Liens and beneficial rights of the Trustee, the Collateral Agent
and any Noteholder therein, and appoints each of the Trustee and the
Collateral Agent its attorney-in-fact for such purposes.
SECTION 4A.15 CONFIRMATION OF SUBORDINATION ON BEHALF OF HOLDERS
Notwithstanding the generality of Section 4A.14, the Trustee and the
Collateral Agent are hereby authorized and directed to execute and
deliver to the Company, APM, the Collateral Agent, the Senior
Debentureholders and the holders of the
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Royalty Interest, the Inter-Creditor Agreement and the Security
Documents. The terms and provisions contained in the Inter-Creditor
Agreement shall constitute, and are hereby expressly made, a part of
this Indenture as if fully set forth herein. To the extent applicable,
the Company and the Trustee, by their execution and delivery of the
Fourth Supplemental Indenture, expressly agree to such terms and
provisions and to be bound thereby; provided, that the Trustee and the
Collateral Agent have executed and delivered the Inter-Creditor
Agreement and the Security Documents in reliance upon Officers'
Certificates and Opinions of Counsel and at the direction of Holders
contained in the Consents. Any appointment of a successor Trustee or a
Collateral Agent from and after the date hereof shall include the
express agreement of such successor, Trustee or Collateral Agent to be
bound by the terms and provisions of the Inter-Creditor Agreement and
the Security Documents. The Trustee or the Collateral Agent shall, from
time to time, at the written request of the Company, confirm in writing
to the Company, APM, the Collateral Agent, the Senior Debentureholders
and the holders of the Royalty Interest, that the Trustee's or the
Collateral Agent's rights and remedies in respect of the Noteholder
Liens and the Kemess Newco Liens are subordinated and postponed in the
manner described in the Inter-Creditor Agreement to Liens provided for
in the Royalty Debenture and the Senior Debentures Security until such
time as all of the Obligations of the Company and its Restricted
Subsidiaries secured by the Senior Debentures Security and the Royalty
Debenture are satisfied in full.
SECTION 4A.16 REPLACEMENT INTER-CREDITOR AGREEMENT
In the event of any Refinancing of the Senior Secured Debentures,
including under a Working Capital Facility, the Trustee, the Collateral
Agent, the Company, Kemess Newco, APM and the Collateral Agent shall, at
the expense of the Company enter into a new inter-creditor agreement In
Agreed Form that provides to the Holders at least the same rights and
benefits as set out in Article 5 of the Inter-Creditor Agreement or, at
the expense and at the request of the Company, enter into a new
inter-creditor agreement In Agreed Form with the Company and the holders
of the Refinanced Senior Secured Debentures on substantially the same
terms and conditions as the Inter-Creditor Agreement, including, without
limitation, at least the same rights and benefits as set out in Article
5 thereof, and shall deliver such subordinations and postponements of
the registered Noteholder Liens and Kemess Newco Liens as may be
necessary or desirable to effect the subordinations and postponements as
described in such new inter-creditor agreement, provided that the
Trustee shall not be required to enter into any new inter-creditor
agreement which affects its rights, protections or immunities under this
Indenture or otherwise.
4A.17 ACKNOWLEDGEMENT
For greater certainty, the entering into by any person who is a secured
creditor of the Company of an agreement by which such person
acknowledges the priority of the security for the Royalty Agreement and
the Senior Secured Debentures, agrees not to exercise remedies with
respect to its collateral for a period of time and acknowledges the
priority of remedies with respect to the Royalty Security (as defined in
the Inter-Creditor Agreement) and the Senior Debentures Security does
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not cause the amounts owing to such person to be subordinate in the
right of payment to any other Indebtedness.
18. Section 5.01 is hereby amended by inserting:
(a) after the word "merge" in the second line the following:
"(including, without limitation, an amalgamation under the BUSINESS
CORPORATIONS ACT (Ontario) or comparable legislation in any other
jurisdiction in Canada (including pursuant to federal legislation)
or similar legislation in any other jurisdiction (an
"Amalgamation"))"; and
(b) after the words "the Company" in each of the 10th line of the first
paragraph, the 10th last line of the first paragraph and the 4th
last line of the last paragraph the following words: "(or in the
case of an Amalgamation, the amalgamated corporation)".
19. Section 6.01 of the Indenture is hereby amended by deleting clause 6
thereof and replacing it with the following:
"(6) The company or any of its Restricted Subsidiaries pursuant to
or within the meaning of any Bankruptcy Law: (a) commences a
voluntary case including, without limitation, the filing of a
proposal or notice of intention to file a proposal under the
BANKRUPTCY AND INSOLVENCY ACT (Canada) (the "BIA"), as amended from
time to time, or commences proceedings under the COMPANIES
CREDITORS' ARRANGEMENT ACT (Canada) (the "CCAA"), as amended from
time to time; (b) consents to the entry of an order for relief
against in an involuntary case; (c) consents to the appointment of
a Custodian of it or for all or substantially all of its property
or a Custodian of it or for all or substantially all of its
property is appointed by a Person other than a court of competent
jurisdiction and such appointment remains unstayed and in effect
for five consecutive days; (d) makes a general assignment for the
benefit of its creditors; or (e) admits in writing its inability to
pay its debts as they become due."
20. The first paragraph of Section 6.03 of the Indenture is hereby amended
by adding at the conclusion of the paragraph the words "including,
without limitation, the enforcement of the Liens and realization of the
Collateral under the Security Documents, subject to the Inter-Creditor
Agreement."
21. Section 6.05 of the Indenture is hereby deleted and the following
substituted therefor:
"Subject to Section 2.09, the Holders of at least a majority in
aggregate principal amount of the outstanding Notes, may direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee or the Collateral Agent or exercising any
trust or power conferred on either of them, including without
limitation, any remedies provided for in Section 6.03 and
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upon receiving security or indemnity from such Holders satisfactory
to the Trustee and the Collateral Agent against all costs, expenses
and liabilities to be incurred, the Trustee or the Collateral
Agent, without in any way limiting its rights or remedies pursuant
to this Indenture or under the Security Documents shall exercise
one or more of the powers of enforcement available to it at law, in
equity or by contract including under the terms of this Indenture
or the Security Documents. Subject to Section 7.01, however, the
Trustee or the Collateral Agent may refuse to follow any direction
that the Trustee or the Collateral Agent reasonably believes
conflicts with any laws, this Indenture or the Inter-Creditor
Agreement, that the Trustee or the Collateral Agent determines may
be unduly prejudicial to the rights of another Noteholder, or that
may involve the Trustee or the Collateral Agent in personal
liability; provided that the Trustee or Collateral Agent may take
any other action deemed proper by the Trustee or the Collateral
Agent which is not inconsistent with such direction. Furthermore
the Trustee and the Collateral Agent shall have the right if
directed by those Holders of at least a majority in aggregate
principal amount of the outstanding Notes to take private action or
to take judicial proceedings instead of such private proceeding."
22. Section 6.10 of the Indenture is hereby amended as follows: (1) by
deleting the reference to "this Article Six" in the second line and
substituting "this Article Six or Article 4A hereof or any of the
Security Documents; and by inserting the words "or the Collateral Agent"
after the word "Trustee" in the preamble and the "First" and "Second"
paragraphs thereof.
23. Section 6.11 of the Indenture is hereby amended by adding the words "or
the Collateral Agent" after the word "Trustee" each time it appears in
that section other than the second time in which case the words "or as
Collateral Agent" shall be inserted.
24. Article 6 of the Indenture is hereby amended by adding section 6.12 as
follows:
6.12 PURCHASE OF SENIOR SECURED DEBENTURES
The Holders and the holders of a beneficial interest in the Notes (the
"Beneficial Holders") as at the Purchase Event Record Date (collectively
the "Eligible Holders" and individually an "Eligible Holder) shall each,
on a non-duplicative basis, have a one time right on the occurrence of a
Purchase Event to, on a pro rata basis (which right may be taken by
those Eligible Holders who wish to do so to the extent other Eligible
Holders do not participate), purchase all, but no less than all, of the
Senior Secured Debentures and the Senior Debentures Security. The
Inter-Creditor Agreement sets out the circumstances and periods of time
within which such rights may be exercised and in which they expire, the
basis of the calculation of the purchase price to be paid for the Senior
Secured Debentures and the Senior Debentures Security (the "Purchase
Event Price"). To exercise the purchase right, Holders must comply with
the procedures set out in the Inter-Creditor Agreement and in Section
6.13 hereof. It is hereby acknowledged that the Senior Debentureholders
shall have no liability or obligation to any Person in respect of the
foregoing other than to sell and deliver
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the Senior Secured Debentures and the Senior Debentures Security in
accordance with the terms of, and subject to compliance by the Agent (as
hereinafter defined) of the terms of, the Inter-Creditor Agreement;
provided, that the Agent shall have no duty hereunder to comply with the
terms of the Inter-Creditor Agreement except in accordance with Section
6.13 hereof.
6.13 PURCHASE EVENT PROCEDURE
(a) As soon as practicable but in no event later than the day of
publication by the Trustee of the notice on Bloomberg (the
"Publication") described in Section 4.06(f) hereof, Chase Manhattan
Trust Company, National Association or its successor hereunder, acting
solely in its capacity as agent hereunder and not in its capacity as
Trustee or in any other fiduciary capacity (the "Agent"), shall request
from the Senior Debentureholders, in accordance with the Inter-Creditor
Agreement, the Purchase Event Price as of such day (the "Initial
Purchase Event Price"). The Agent may conclusively rely on any such
information and any additional information provided to the Agent by the
Senior Debentureholders for all purposes hereunder. The Agent shall not
be required to furnish such information to any Person other than an
Eligible Holder who has provided the certificate described in Section
6.13(b).
(b) Each Eligible Holder who elects to purchase at least its respective
pro rata share of the Senior Secured Debentures and the Senior
Debentures Security (collectively, the "Senior Position") shall deliver
to the Agent, no later than 4:30 p.m. on the third day following the
Publication, each of the following: (i) a certificate, with signature
guarantee, of the Eligible Holder or a duly qualified officer of the
Eligible Holder, upon which certificate the Agent may conclusively rely,
which certifies (1) that such holder is an Eligible Holder; (2) the
principal amount of the Notes held by such Eligible Holder; (3) that
such Eligible Holder elects to purchase at least such Eligible Holder's
pro rata share of the Senior Position, and, if applicable, that such
Eligible Holder may elect to purchase additional unsubscribed shares of
such Senior Position, if available for purchase; (4) that the Eligible
Holder irrevocably directs the Agent to deliver the Acceptance Notice
(as defined in the Inter-Creditor Agreement) and to purchase the Senior
Position on the earliest date on which all of the conditions to purchase
hereunder have been satisfied, if such date is on or prior to the
expiration date (the "Final Closing Date") of the right to purchase
under the Inter-Creditor Agreement, for and on behalf of all Subscribing
Holders (defined hereinafter) with immediately available funds provided
by such Subscribing Holders, but with no duty by the Agent to advance
funds to make such purchase, on the terms and subject to the conditions
of the Inter-Creditor Agreement and this Section 6.13; (5) an agreement
to irrevocably deliver such Eligible Holder's pro rata share of the
Initial Purchase Event Price to the Agent by federal funds transfer
within one day of such Eligible Holders receipt of notice, from the
Agent or otherwise, of the Initial Purchase Event Price (but in no event
later than the Initial Deposit Time (defined hereinafter)), which notice
the Agent shall provide to such Eligible Holder by facsimile no later
than the second day following receipt of such Eligible Holder's fully
conforming certificate (but only if the Agent has received notice of the
Initial Purchase Event Price from the Senior Debentureholders);
provided, that in lieu of the procedure in this clause (5), such
Eligible Holder may fulfill this condition.
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by irrevocably depositing, on the date of delivery of the certificate and
for the account of the Agent, a federal funds transfer of at least its pro
rata share of the Initial Purchase Event Price; (6) such Eligible Holder's
agreement to pay on a pro rata basis with the other Eligible Holders the
reasonable legal fees and expenses, if any, of the Agent hereunder, as and
when incurred, and to indemnify and hold the Agent harmless hereunder for
any expenses, claims, liabilities, outlays, fees, taxes and any other
disbursements or costs incurred in connection herewith (collectively with
such legal fees and expenses, "Costs"), unless any such Cost is adjudicated
to have resulted from the gross negligence or wilful misconduct of the
Agent; (7) wire transfer and facsimile communication instructions for such
Eligible Holder (which the Agent shall use for all purposes hereunder); and
(8) an acknowledgement that the Transfer Documents (as hereinafter defined)
and the Agent Transfer Documents (as hereinafter defined) must be delivered
to the Agent not later than 3 Business Days before any Closing (as
hereinafter defined). Each Eligible Holder who has complied with all of the
above requirements (a "Subscribing Holder"), including without limitation,
delivery of any executed agreement required under clause (4) above and any
deposit of funds required under clause (5) above, no later than 4:30 p.m.
on the fifth day after the Publication (the "Initial Deposit Time"), but no
other Holder or Eligible Holder, shall be entitled to subscribe for any
unsubscribed portion of the Purchase Event Price (the "Unsubscribed
Portion").
(c) The Agent shall request, on such fifth day, from the Senior
Debentureholders, the Purchase Event Price calculated as of the sixth day
after the Publication (the "Revised Purchase Event Price"). The Agent shall
provide, if and when received from the Senior Debentureholders, any such
information, together with the amount of the estimated Unsubscribed Portion
calculated as of the Initial Deposit Time which amount is equal to the
difference between the funds on deposit and the Revised Purchase Event
Price (if available, and otherwise the Initial Purchase Event Price) to
each Subscribing Holder within one day following receipt of notice of the
Revised Purchase Event Price, but in the absence of receipt of such notice,
shall provide the amount of such estimated Unsubscribed Portion to
Subscribing Holders no later than the second day following the Initial
Deposit Time.
Any Subscribing Holder, or group of Subscribing Holders, may subscribe for
all or a portion of the Unsubscribed Portion by depositing immediately
available funds with the Agent, together with an accounting therefor
satisfactory to the Agent, no later than 4:30 p.m. on the eighth day after
the Publication (the "Final Deposit Time"). Such Subscribing Holders will
cooperate with the Agent in providing such accounting. Such deposit(s)
shall be calculated by the Subscribing Holders on a pro rata basis or on
any basis on which the Subscribing Holders may agree, time being of the
essence.
(d) No later than the fourth day preceding the Final Closing Date, the
Agent shall request from the Senior Debentureholders revised information
concerning the Purchase Event Price, and upon any receipt thereof, the
Agent shall provide such information, together with confirmation of the
amount on deposit with the Agent and available to effect the purchase, to
the Subscribing Holders (the latter information being provided no later
than 4:30 p.m. on the third day preceding the
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Final Closing Date). If any Purchase Event Price received from the Senior
Debentureholders is an estimate, the Agent shall so advise the Subscribing
Holders. The Agent shall have no further duty to initiate communication
with Subscribing Holders; however, Subscribing Holders may deposit
additional immediately available funds with the Agent, together with an
accounting therefor, on any basis on which Subscribing Holders may agree,
no later than 12:00 p.m. on the day preceding the Final Closing Date. The
Agent shall have no duty under Section 6.13(b), (c) or (d) hereof to verify
the sufficiency of, assist with or confirm calculation of any deposits made
by Subscribing Holders hereunder.
(e) To the extent the Agent is fully funded to pay the Purchase Event
Price, as such Purchase Event Price is confirmed to the Agent as of the
earlier of the first day on which all conditions hereunder have been
satisfied and the Final Closing Date, whichever is operative, and, if at
least three Business Days prior to the Closing (as hereinafter defined),
the Agent has received from or on behalf of Subscribing Holders (but
with no obligations on the Agent to prepare any such documentation),
documentation satisfactory to the Agent, in its sole judgment, to
accomplish the purchase, including without limitation documents of
assignment and transfer from the Senior Debentureholders to the Agent
fully complying with the Inter-Creditor Agreement (the "Transfer
Documents") and documents of assignment and transfer from the Agent to
the Subscribing Holders (the "Agent Transfer Documents") fully complying
with the provisions of this Section 6.13 (each of which are specific
conditions precedent hereunder to the exercise of the purchase right by
the Agent and all of which shall be prepared by or on behalf of and at
the expense of the Subscribing Holders), the Agent shall purchase the
Senior Position by delivering the Acceptance Notice and a certified
check drawn on the Agent or an affiliate of the Agent to or upon the
order of the Senior Debentureholders, but only upon contemporaneous
delivery of fully executed Transfer Documents from the Senior
Debentureholders (the "Closing") and with no duty by the Agent to
advance any funds; provided, that the Agent shall have no responsibility
or liability whatsoever to any Person for the content, adequacy,
validity, sufficiency, condition of title or priority of any of such
documentation or of any collateral. Upon payment of the Agent's Costs,
the Agent shall promptly execute and deliver the Agent Transfer
Documents to the Subscribing Holders and shall return any unexpended
funds to the Subscribing Holders entitled thereto, based solely on the
accounting and instructions for payment provided by such Subscribing
Holders and thereupon the Agent shall be fully discharged hereunder.
(f) To the extent the Agent is not fully funded to pay the Purchase
Event Price by 12:00 p.m. on the Final Closing Date, based on the latest
information received from the Senior Debentureholders or the other
conditions precedent to Closing hereunder have not been satisfied, the
Agent shall not deliver the Acceptance Notice and shall not purchase the
Senior Position and the right to purchase under the Inter-Creditor
Agreement shall expire. The Agent shall incur no liability for a failed
purchase unless adjudicated to have resulted from its gross negligence
or wilful misconduct. In that case and upon payment of the Agent's Costs
to the satisfaction of the Agent, the Agent shall return all funds on
deposit with the Agent to the Subscribing Holders entitled thereto,
based on the accounting and payment
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instructions provided to the Agent by such Holders and thereupon shall
be fully discharged hereunder.
(g) Notwithstanding anything to the contrary contained herein, the duty
to compensate, reimburse and indemnify the Agent under this Section 6.13
shall be an obligation of the Company; provided, that the Agent may pay
or reimburse itself from funds on deposit with it and, to the extent
such funds are insufficient and payment arrangements satisfactory to the
Agent have not been made, the Agent may refuse to deliver the Acceptance
Notice and purchase the Senior Position and shall incur no liability to
any Person for having done so. If at any time prior to the Closing or if
at any time after the purchase of the Senior Position is completed but
prior to the delivery of the Agent Transfer Documents, any controversy
or dispute arises among any Holders, including without limitation any
Eligible Holders, or between the Senior Debentureholders and the Agent
and/or any Holders with respect to any matter whatsoever contemplated in
this Section 6.13, the Agent shall not be required to determine the same
or do any other act or thing, but shall instead interplead any funds
deposited with it and/or any Agent Transfer Documents held by it in a
court of competent jurisdiction. Each Holder, including without
limitation each Eligible Holder, shall be bound by any determination of
such court and the Agent shall incur no liability whatsoever to any
Person for, and shall be held harmless from by the Subscribing Holders,
any failure to complete the purchase or deliver the Agent Transfer
Documents.
(h) All times expressed herein shall be New York times. Any reference to
a day or date that does not fall on a Business Day shall be deemed a
reference to the next succeeding Business Day as defined in the
Inter-Creditor Agreement.
(i) The Trustee shall have no obligation or liability whatsoever to any
Person with respect to the foregoing other than its duties under Section
4.06 with respect to the Publication. The Trustee shall not be deemed to
have notice of any Purchase Event in the absence of actual notice
thereof.
(j) The Agent Transfer Documents shall provide only that the Agent
represents and warrants in favor of the Subscribing Holders as at the
Closing Date that the Senior Position has not been sold, assigned or
encumbered by the Agent. The Agent shall not provide any other or
additional representations, warranties or covenants, expressed or
implied and the Senior Position shall be purchased by the Subscribing
Holders on a (i) non-recourse; (ii) "as is, where is" basis, other than
as aforesaid.
(k) Whether or not a Purchase Event has occurred hereunder, the Agent
shall have only those duties as are expressly set out in this Section
6.13 and nothing herein shall be construed to impose any other or
further duties; it being recognized that the services of the Agent are
necessary only to comply with the Inter-Creditor Agreement in order to
facilitate the purchase; provided, that in furtherance and not in
limitation of the foregoing, the Agent shall have no duty whatsoever to
incur liability, financial or otherwise, to any Person, to advance any
funds or to otherwise act or refrain from acting if, in the sole
judgment of the Agent, any such act or failure to act would cause the
Agent to incur risk or liability. Notwithstanding anything to the
contrary contained herein, any
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agreement to indemnify the Agent on the terms and conditions herein
shall include, without limitation, indemnification for any Cost imposed
on the Agent under the Inter-Creditor Agreement.
(l) In performing its duties as aforesaid, the Agent is acting as an
agent for the Holders and Beneficial Holders and is not acting in its
capacity as Trustee or fiduciary hereunder. In furtherance and not in
limitation of any provision of this Section 6.13, neither the Trustee
nor the Agent shall have any responsibility for or duty to determine (i)
the identity or eligibility of any Person as a Holder, Beneficial
Holder, or Eligible Holder, (ii) the irrevocable nature of any deposit
hereunder, (iii) the amount of the Purchase Event Price or (iv) the
effectiveness under the Inter-Creditor Agreement of any Acceptance
Notice or delivery of payment thereunder, or (v) the adequacy of
consideration, or lack thereof, to the Holders for the Purchase Event
Price. Neither the Trustee nor the Agent shall have any duty or
responsibility to any Person with respect to the disclosure of any
information concerning the Senior Secured Debentures and the Senior
Debentures Security to any Holder or Beneficial Holder.
(m) In no event shall the Agent be liable to any Person for special,
indirect or consequential damages of any nature whatsoever.
(n) The Subscribing Holders who in the aggregate are entitled to buy at
least 51% of the Senior Position based on their pro rata share of
subscriptions held by the Agent as at the Initial Deposit Date may, without
notice, but with the consent of the Trustee and the Agent, in their sole
discretion, amend the foregoing timetable and procedures so as to give
effect to the delivery of an Acceptance Notice in accordance with the terms
of the Inter-Creditor Agreement.
25. Section 7.05 of the Indenture is hereby deleted and the following
substituted therefore:
"If a Default or an Event of Default occurs and is continuing, the
Trustee shall mail to each Noteholder notice of the uncured
Default or Event of Default within 30 days after the later of the
date such Default, or Event of Default occurs or the date on which
the Trustee shall have received written notice of such Default or
Event of Default from the Company or any of the Holders, unless a
Trust Officer has actual knowledge of any such event, in which
case, such notice shall be given within 30 days of such actual
knowledge being obtained. Except in the case of a Default or an
Event of Default in payment of principal of, or interest on, any
Note, including an accelerated payment and the failure to make
payment on the Change of Control Payment Date pursuant to a Change
of Control Offer or on the Proceeds Purchase Date pursuant to a Net
Proceeds Offer and, except in the case of a failure to comply with
Article V hereof, a Default or Event of Default that also is a
Purchase Event, the Trustee may withhold the notice if and so long
as its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers in
good faith determines that withholding the notice is in the
interest of the Noteholders."
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26. (a) Section 7.07 of the Indenture is hereby amended and supplemented by
adding the following new paragraphs before the penultimate paragraph
thereof as follows:
"In furtherance and not in limitation of anything provided in this
Section 7.07 or otherwise in the Indenture, the Company shall pay
reasonable compensation, in accordance with this Section 7.07, to
the Trustee and its agents, together with the fees and expenses of
counsel to the Trustee or any agent, for their services under or in
connection with the Inter-Creditor Agreement (including for
purposes of this Section 7.07, any other or successor
inter-creditor agreements hereunder) and any Security Document. The
Company shall indemnify, in accordance with this Section 7.07, the
Trustee and its agents and employees, stockholders, directors and
officers for, and hold them harmless against, any and all claims,
damages, demands, expenses, liabilities, charges and taxes of any
character or nature whatsoever relating to this Indenture, the
Notes, such Inter-Creditor Agreement or the Security Documents; the
administration of the Trustee's or any agent's duties hereunder or
under the Inter-Creditor Agreement or the Security Documents; the
condition, occupancy, use, possession, conduct or management of or
any work done in or about any of the assets or property of the
Company or the planning, design, construction, rehabilitation or
improvement of any such assets or property, subject only in each
case to the exception in the second paragraph of this Section 7.07
for actions caused by the negligence, bad faith or willful
misconduct of the Trustee or any agent; or for any untrue statement
or alleged untrue statement of any material fact or omission or
alleged omission to state a material fact necessary to make the
statements made in any statement, information or material furnished
by or on behalf of the Company to the Trustee or any other Person,
including without limitation, to any Holder of the Notes or in
connection with any information included in any solicitation of
consents of Holders to any amendment, supplement or waiver of or in
connection with this Indenture, the Inter-Creditor Agreement or the
Security Documents. The Company and the Holders hereby acknowledge
the Trustee, its agents, employees, stockholders, directors and
officers have not participated in the preparation or dissemination
of any such statement, information, material or solicitation. The
Trustee makes no representation or warranty, express or implied, as
to the title, value, design, compliance with specifications of
legal requirements, quality, durability, operation, condition,
merchantability or fitness for any particular purpose for any of
the property, assets or undertakings of the Company now or
hereafter subject to any Security Document. In no event shall the
Trustee be liable for incidental, indirect, special or
consequential damages to any Person in connection with or arising
from the existence or use of any such property, assets or
undertakings; and
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(b) References to the "Trustee" in Section 7.07 shall include the
Trustee's agents and any Collateral Agent and the penultimate
paragraph of Section 7.07 is amended to add "including without
limitation pursuant to the Security Documents", after the word
"Trustee" in the third line thereof.
27. Article 7 of the Indenture is hereby amended by adding at the end
thereof the following section, which shall read in its entirety as follows:
"SECTION 7.12 CO-COLLATERAL TRUSTEE, SEPARATE COLLATERAL TRUSTEE,
COLLATERAL AGENTS
(1) If at any time or times it shall be necessary or prudent in order
to conform to any law of any jurisdiction in which any of the
Collateral shall be located, or to avoid any violation of law or
the imposition on the Trustee of taxes by such jurisdiction not
otherwise imposed on the Trustee, or the Company or the Trustee
shall be advised by an Opinion of Counsel, that it is necessary or
prudent in the interest of the Noteholders or the Holders of a
majority in principal amount of the outstanding Notes shall, in
writing, so request the Trustee, or the Trustee shall deem it
desirable for its own protection in the performance of its duties
hereunder or under any Security Document, then the Company shall
appoint a Collateral Agent and the Company, and any Guarantor and,
if necessary, the Trustee shall execute and deliver all
instruments and agreements necessary or proper to constitute
another bank or trust company, or one or more Persons approved by
the Company to act as Collateral Agent, co-collateral trustee or
co-collateral trustees of all of or any of the Collateral under
this Indenture or under any of the Security Documents, jointly
with the Trustee originally named herein or therein or any
successor Trustee, or to act as separate collateral Trustee or
Collateral Agent of any of the Collateral or to act as co-trustee
hereunder. If the Company or Guarantor has not joined in the
execution of such instruments and agreements within 10 days after
it receives a written request from the Trustee to do so or if a
Default or Event of Default exists, the Trustee may act under the
foregoing provisions of this Section 7.12 (1) without the
concurrence of the Company or Guarantor and execute and deliver
such instruments and agreements on behalf of the Company or such
Guarantor. The Company and any Guarantor hereby appoints the
Trustee as its agent and attorney-in-fact in either of such
contingencies. The Company has appointed the initial Collateral
Agent and has agreed to compensate and indemnify such Collateral
Agent in accordance with Section 7.07.
(2) Every separate Collateral Agent and collateral trustee and every
co-collateral trustee, other than any successor Trustee appointed
pursuant to Section 7.08 of this Indenture, shall, to the extent
permitted by law, be appointed and act and be such, subject to the
following provisions and conditions:
(a) all rights, powers, duties and obligations conferred upon the
Trustee in respect of the custody, control and management of
moneys, papers, or securities shall be exercised solely
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by the Trustee or any Collateral Agent appointed in accordance
with this Section 7.12;
(b) all rights, powers, duties and obligations conferred or imposed
upon the Trustee hereunder and under the relevant Security
Documents shall be conferred or imposed and exercised or
performed by the Trustee and such Collateral Agent, separate
collateral trustee or separate collateral trustees or
co-collateral trustee or co-collateral trustees, jointly, as
shall be provided in the instrument appointing such Collateral
Agent, separate collateral trustee or separate collateral
trustees or co-collateral trustee or co-collateral trustees,
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Trustee shall be incompetent or unqualified to perform such act
or acts, or unless the performance of such act or acts would
result in the imposition of any tax on the Trustee which would
not be imposed absent such joint act or acts, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such Collateral Agent, separate collateral trustee
or co-collateral trustees;
(c) no power given hereby or by the relevant Security Documents
to, or which it is provided herein or therein may be exercised
by, any such Collateral Agent, co-collateral trustee or
co-collateral trustees or separate collateral trustee or
separate collateral trustees, shall be exercised hereunder or
thereunder by such Collateral Agent, co-collateral trustee or
co-collateral trustees except jointly with, or with the
consent in writing of, the Trustee, anything contained herein
to the contrary notwithstanding;
(d) no collateral trustee (including, without limitation, the
Trustee) or Collateral Agent hereunder shall be personally
liable by reason of any act or omissions of any other
collateral trustee or Collateral Agent hereunder;
(e) the Trustee, at any time by an instrument in writing, may
accept the resignation of or remove any such Collateral Agent,
separate collateral trustee or co-collateral trustees or
co-trustee and, in that case by an instrument in writing, may
appoint a successor to such Collateral Agent, separate
collateral trustee or co-collateral trustees, as the case may
be, anything contained herein to the contrary notwithstanding.
If the Company or any Guarantor has not joined in the
execution of any such instrument within 10 days after it
receives a written request from the Trustee to do so, or if a
Default or Event of Default then exists, the Trustee shall
have the power to accept the resignation of
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or remove any such Collateral Agent, separate collateral
trustee or co-collateral trustees and to appoint a successor
without the concurrence of the Company or any Guarantor. The
Company and any Guarantor hereby appoint the Trustee its agent
and attorney-in-fact to act for it in such connection in such
contingency. If the Trustee shall have appointed a Collateral
Agent, separate collateral trustee, collateral trustees or
co-collateral trustee or co-collateral trustees or co-trustee
as above provided, the Trustee may at any time, by an
instrument in writing, accept the resignation of or remove any
such Collateral Agent, separate collateral trustee,
co-collateral trustees or co-trustee and the successor to any
such Collateral Agent, separate collateral trustee,
co-collateral trustees or co-trustee shall be appointed by the
Trustee alone pursuant to this Subsection 7.12(e); and
(f) The Trustee shall have no duty to compensate or indemnify any
Collateral Agent, separate collateral trustee, co-collateral
trustee or co-trustee appointed hereunder. The Trustee shall
not be liable or responsible for any Collateral Agent
appointed by it with due care hereunder.
"SECTION 7.13 COSTS OF ENFORCEMENT
Each of the Company and its Restricted Subsidiaries shall reimburse the
Trustee and the Collateral Agent or, if applicable the Holders, on
demand for all costs of realization (which for the purposes hereof shall
include any loans or advances made by the Trustee, Collateral Trustee or
a Holder to a Custodian) and other costs and expenses (including legal
fees and expenses) incurred by the Trustee and the Collateral Agent or,
if applicable the Holders or a Custodian in connection with the
realization, disposition of, retention, protection or collection of any
of the Collateral and the protection, preservation, or enforcement of
the rights, remedies and powers of the Trustee and the Collateral Agent
or, if applicable the Holders, or any Custodian. All amounts for which
the Company or any Restricted Subsidiary is required under this Section
7.13, Section 7.07 or otherwise under this Indenture to reimburse or pay
to the Trustee and the Collateral Agent or, if applicable the Holders or
any Custodian shall, from the date of disbursement until the date of
payment, be deemed to be an Obligation under this Indenture that is
secured under the Security Documents and shall bear interest at the
highest rate per annurn charged hereunder on any of the Obligations
under this Indenture. Nothing herein shall affect, impair or limit the
Trustee's and any Collateral Agent's rights under Section 6.10 or
Section 7.07.
28. Section 9.01 of the Indenture is hereby amended by inserting a comma
after word "Indenture" wherever it appears therein and thereafter adding
the words "Security Documents, the Inter-Creditor Agreement".
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29. Section 9.02 of the Indenture is hereby amended by inserting a comma
after the word "Indenture" wherever it appears therein and, in each
case, thereafter adding the words "Security Documents, the
Inter-Creditor Agreement".
30. Article 11 of the Indenture is hereby amended by deleting in its
entirety section 11.04 thereof.
31. Section 11.06 shall be amended
(i) by adding at the end of the first sentence of clause (a) thereof the
following:
"provided however that the Company or such other Guarantor, as
applicable, shall confirm (i) that it is and continues to be bound
by and shall covenant and agree to perform the obligations of the
Guarantor in respect of the Indenture and the Notes; (ii) that the
property, assets and undertaking so conveyed to the Company or such
other Guarantor, as applicable, are subject to the Noteholder Liens
or the Kemess Newco Liens, as applicable, which Liens remain in
full force and effect and secure the said Obligations of such other
Guarantor and the Company; and (iii) such other Guarantor or the
Company, as applicable, shall grant to the Trustee or the
Collateral Agent a Lien in all of its property, assets and
undertaking, including the assets transferred as aforesaid, which
Lien will be In Agreed Form and will secure the payment and
performance by such other Guarantor or the Company, of its
obligations in respect of the Indenture and the Notes."
(ii) and by inserting after the word "property" and before the "," at
the end of subparagraph (b) (ii) the following:
"and such corporation shall acknowledge and confirm that the
property, assets and undertaking of the Guarantor that it has
assumed are subject to the Noteholders Liens and the Kemess Newco
Liens, as applicable, which Liens are and continue to be
enforceable as security for the obligations of the Company under
the Indenture and the Notes and such successor corporation shall
grant to the Trustee or the Collateral Agent a Lien on all of its
property, assets and undertaking, which Lien will be In Agreed Form
and will secure the payment and performance by such successor
corporation of such assumed obligations."
32. The Indenture is hereby amended by adding thereto Exhibits E through I in
the forms annexed to this Fourth Supplemental Indenture.
33. The Indenture is hereby amended and supplemented in every respect to the
extent necessary to give effect to all sections of this Fourth Supplemental
Indenture and conform the Indenture thereto.
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34. The Fourth Supplemental Indenture is entered into, and the amendments and
supplements contained herein are made, pursuant to the provisions of
Sections 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, 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 Fourth 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" and including such other matters as are requested by the Trustee;
whereupon this Fourth Supplemental Indenture, including as a part
thereof, the Inter-Creditor Agreement (with the exception of Section 3.5
which shall bind only the Holders of Notes that execute Consents with
respect thereto), shall be binding upon each Holder of Notes.
35. The Company hereby represents and warrants that:
(a) The execution, delivery and performance by the Company of this
Fourth Supplemental Indenture, the Inter-Creditor Agreement and the
Security Documents have been duly authorized by all necessary
corporate action on the part of the Company; and this Fourth
Supplemental Indenture, the Inter-Creditor Agreement and the
Security Documents have been duly executed and delivered by the
Company and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability now or hereafter in effect relating to or affecting
creditors' rights and to general equity principles.
(b) The execution, delivery and performance by the Company of this
Fourth Supplemental Indenture, the Inter-Creditor Agreement and the
Security Documents do 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 together with all such other matters as the Trustee and
the Proposing Noteholders (as defined in the Letter Agreement) may
reasonably require in connection with the execution and delivery of
the Fourth Supplemental Indenture, the Inter-Creditor Agreement and
the Security Documents and in paragraph
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one of the Letter Agreement and to the effect set forth in
paragraph 34 hereof and Section 4A.11 of the Indenture and 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, this Fourth Supplemental Indenture and the
Inter-Creditor Agreement comply with the TIA (as defined in the
Indenture) as in effect on the date thereof.
(d) The Company is not, and will not as a result of entering into the
Inter-Creditor Agreement, the Royalty Debenture, the Senior Secured
Debentures, any inter-creditor agreement in respect of Existing
Hedge Indebtedness and the Permitted Liens described in clause
(vii)(a) of the definition of Permitted Liens, be in default of its
covenants under Section 4.14 of the Indenture.
36. For purposes of this Fourth 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 or the
Collateral Agent'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 the recitals, statements,
representations and warranties of the Company, in this Fourth
Supplemental Indenture, in any Note (other than the Trustee's
authentication thereof), any solicitation or consents by the Company of
Holders to this Fourth Supplemental Indenture, the Inter-Creditor
Agreement (except as otherwise expressly provided in the Inter-Creditor
Agreement) or the Security Documents, 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 Governing Body, or for the
validity, sufficiency, effectiveness, adequacy or priority, as
applicable, of this Fourth Supplemental Indenture, the Inter-Creditor
Agreement (except, as otherwise expressly provided in Section 8.1 of the
Inter-Creditor Agreement) or the Security Documents 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 indemnify and hold the Trustee, the
Collateral Agent, their agents, employees, stockholders, directors and
officers harmless pursuant to Section 7.07 of the indenture, as amended
and supplemented in paragraph 26 hereof.
37. The Holders, by their Consents to this Fourth Supplemental Indenture, the
Inter-Creditor Agreement and the Security Documents, hereby instruct the
Trustee to waive any and all existing Defaults and Events of Default,
known or unknown to the Trustee, under the Indenture and authorize the
Trustee to exercise the standard of care in entering into this Fourth
Supplemental Indenture as described in Section 7.01 (b) (but not 7.01
(a)) of the indenture. The Holders further hereby acknowledge and
confirm that the Trustee has made no statements, representations or
warranties to any Holder in connection with the
-42-
solicitation of such Holders' Consents, 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 Proposing
Noteholders have entered into the Letter Agreement directly with the
Company, 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 Fourth Supplemental Indenture,
the Inter-Creditor Agreement and the Security Documents, and that it is
not the intention of such Holders that the Trustee or Collateral Agent
shall incur financial or other risk or liability as a result of entering
into this Fourth Supplemental Indenture, the Inter-Creditor Agreement or
the Security Documents at the request and direction of such Holders. In
furtherance and not in limitation hereof, the terms of Article Seven of
the Indenture, as amended hereby, are hereby affirmed with respect to the
Indenture, the Inter-Creditor Agreement and the Security Documents. The
Trustee and the Collateral Agent shall have no duty or responsibility to
any Person under the Letter Agreement or under the Consents.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth 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
-------------------------------------
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
