EXHIBIT 4.2
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SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
March 31, 2004, among Lignum Limited (the "GUARANTEEING SUBSIDIARY"), a
subsidiary of Riverside Forest Products Limited (or its permitted successor), a
British Columbia, Canada, corporation (the "COMPANY"), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and Xxxxx Fargo
Bank, National Association, as trustee under the Indenture referred to below
(the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "INDENTURE"), dated as of February 25, 2004 providing
for the issuance of 7-7/8% Senior Notes due 2014 (the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "NOTE GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees to provide an unconditional Guarantee on the terms and subject to the
conditions set forth in the Note Guarantee and in the Indenture, including but
not limited to Article 10 of thereof.
4. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Guaranteeing Subsidiary, as such, will have
any liability for any obligations of the Guaranteeing Subsidiary under the Note,
the Note Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. The waiver may not be effective to waive liabilities under the U.S.
federal securities laws.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
6. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
9. CONSENT TO JURISDICTION. Each of the Company, the Guarantors
and the Guaranteeing Subsidiary irrevocably agree that any legal suit, action or
proceeding arising out of or based upon this Supplemental Indenture or the
transactions contemplated hereby ("RELATED PROCEEDINGS") may be instituted in
the federal courts of the United States of America located in the City of New
York or the courts of the State of New York in each case located in the Borough
of Manhattan in the City of New York (collectively, the "SPECIFIED COURTS"), and
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"RELATED JUDGMENT"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. The Company, the Guarantors and
the Guaranteeing Subsidiary further agree that service of any process, summons,
notice or document by mail to such party's address set forth above shall be
effective service of process for any lawsuit, action or other proceeding brought
in any such court. The Company, Guarantors and the Guaranteeing Subsidiary
hereby irrevocably and unconditionally waive any objection to the laying of
venue of any lawsuit, action or other proceeding in the Specified Courts, and
hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such lawsuit, action or other proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
Company, the Guarantors and the Guaranteeing Subsidiary not located in the
United States hereby irrevocably appoints CT Corporation System of New York, New
York, which currently maintains a New York City office at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, as its authorized agent (the
"AUTHORIZED AGENT") to receive service of process or other legal summons for
purposes of any such action or proceeding that may be instituted in any state or
federal court in the City and State of New York. The Company, the Guarantors and
the Guaranteeing Subsidiary agree that service of process upon the Authorized
Agent and written notice of such service to the Company, the Guarantors and the
Guaranteeing Subsidiary shall be deemed, in every respect, effective service of
process upon the Company, the Guarantors and the Guaranteeing Subsidiary.
10. OBLIGATION CURRENCY. The obligation of the Guaranteeing
Subsidiary in respect of any sum due to any Holder shall, notwithstanding any
judgment in a currency other than U.S. dollars, not be discharged until the
first business day, following receipt by such Holder of any sum adjudged to be
so due in such other currency, on which (and only to the extent that) such
Holder may in accordance with normal banking procedures purchase U.S. dollars
with such other currency; if the U.S. dollars so purchased are less than the sum
originally due to such Holder hereunder, the Guaranteeing Subsidiary agree, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Holder against such loss.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: Xxxxx 00, 0000
XXXXXX LIMITED
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
RIVERSIDE FOREST PRODUCTS LIMITED
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary Treasurer and
Chief Financial Officer
RFP POWER LTD.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary Treasurer
RFP TIMBER LTD.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary Treasurer
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
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Authorized Signatory
