REGISTRATION RIGHTS AGREEMENT
SCOTIA PACIFIC COMPANY LLC
July 20, 1998
SCOTIA PACIFIC COMPANY LLC
6.55% Class A-1 Timber Collateralized Notes
7.11% Class A-2 Timber Collateralized Notes
7.71% Class A-3 Timber Collateralized Notes
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 20, 1998
Salomon Brothers Inc.
As Representative of the Initial Purchasers
Xxxxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Scotia Pacific Company LLC, a limited liability company organized
under the laws of the State of Delaware (the "Company"), proposes to issue and
sell to certain purchasers (the "Initial Purchasers"), upon the terms set forth
in a purchase agreement of even date herewith (the "Purchase Agreement"), its
6.55% Class A-1 Timber Collateralized Notes, 7.11% Class A-2 Timber
Collateralized Notes and 7.71% Class A-3 Timber Collateralized Notes
(collectively, the "Timber Notes") relating to the initial placement of the
Timber Notes (the "Initial Placement"). To induce the Initial Purchasers to
enter into the Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Company agrees with you for your benefit and the benefit of the
holders from time to time of the Timber Notes (including the Initial Purchasers)
(each a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in Schedule A to the Indenture and if not
defined therein, in the Purchase Agreement. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, control of
a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or the Commonwealth of
Massachusetts.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 20 day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Timber Notes" shall mean debt securities of the Company
identical in all material respects to the Timber Notes (except that the
Non-registration Premium provisions and the transfer restrictions shall be
modified or eliminated, as appropriate, and interest thereon shall accrue from
and including the last date to which interest was paid on the Timber Notes or,
if no such interest has been paid, from the Closing Date) to be issued under the
Indenture to Holders in exchange for Registrable Securities pursuant to the
Registered Exchange Offer.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange any Timber
Notes that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company) for Exchange Timber Notes.
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Timber Notes,
dated as of July 20, 1998, between the Company and State Street Bank and Trust
Co., as trustee, as the same may be amended from time to time in accordance with
the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities or the Exchange Timber
Notes covered by such Registration Statement, and all amendments and supplements
thereto and all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Registrable Securities that
are not prohibited by any law or policy of the Commission from participating in
such offer, in exchange for the Registrable Securities of each Class, a like
aggregate principal amount of the Exchange Timber Notes of such Class.
"Registrable Securities" shall mean the Timber Notes; provided,
however, that Timber Notes shall cease to be Registrable Securities when (i)
such Timber Note has been exchanged for a freely tradeable Exchange Timber Note
upon consummation of the Registered Exchange Offer and are thereafter freely
tradeable by the holder thereof not an affiliate of the Company, (ii) a
Registration Statement with respect to such Timber Notes shall have been
declared effective under the Act and such Timber Notes shall have been disposed
of pursuant to such Registration Statement, (iii) such Timber Notes shall have
been sold to the public in compliance with Rule 144 (or any similar provision
then in force) under the Act or is saleable pursuant to Rule 144(k) under the
Act, or (iv) such Timber Notes shall have ceased to be outstanding.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement.
"Timber Notes" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Registrable Securities or Exchange Timber Notes, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Timber Notes
under the Indenture.
"underwriter" shall mean any underwriter of Registrable
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Registered Exchange Offer. (a) The Company shall prepare and, not
later than 90 days following the date of the original issuance of the Timber
Notes (or if such 90th day is not a Business Day, the next succeeding Business
Day), shall file with the Commission the Exchange Offer Registration Statement
with respect to the Registered Exchange Offer. The Company shall use its
reasonable best efforts to cause the Exchange Offer Registration Statement to
become effective under the Act within 180 days of the date of the original
issuance of the Timber Notes (or if such 180th day is not a Business Day, the
next succeeding Business Day).
(b) on the effectiveness of the Exchange Offer Registration Statement,
the Company shall as promptly as practicable commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable each
Holder electing to exchange Registrable Securities for Exchange Timber Notes
(assuming that such Holder is not an Affiliate of the Company, acquires the
Exchange Timber Notes in the ordinary course of such Holder's business, has no
arrangements with any Person to participate in the distribution of the Exchange
Timber Notes and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange Timber
Notes from and after their receipt, subject to prospectus delivery requirements
of Broker-Dealers, without any limitations or restrictions under the Act and
without material restrictions under the securities laws of the states of the
United States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 20
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, supplemented
and amended as required, under the Act to ensure that it is available for
sales of Exchange Timber Notes during the Exchange Offer Registration
Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Registrable Securities at
any time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open by sending to
the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Securities delivered for exchange, and a statement
that such Holder is withdrawing his election to have such Registrable
Securities exchanged;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating that
the Company is conducting the Registered Exchange Offer in reliance on the
position of the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988), and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991); and (B) including a representation that the Company has not entered
into any arrangement or understanding with any Person to distribute the
Exchange Timber Notes to be received in the Registered Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the Exchange
Timber Notes in the ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the
Exchange Timber Notes; and
(vii) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Registrable Securities tendered and
not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation in accordance with Section 4(s) all Registrable Securities so
accepted for exchange by the Company; and
(iii) cause the Trustee under the Indenture promptly to
authenticate and deliver to each Holder a principal amount of Exchange
Timber Notes equal to the principal amount of the Registrable Securities of
such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker- Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the Exchange Timber Notes (x) could not under Commission policy
as in effect on the date of this Agreement rely on the position of the
Commission in Xxxxxx Xxxxxxx and Co., Inc. (avail. June 5, 1991) and Exxon
Capital Holdings Corporation (avail. May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993 and similar
no-action letters; and (y) must comply with the registration and prospectus
delivery requirements of the Act in connection with any secondary resale
transaction that must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K under the Act if the resales are of Exchange
Timber Notes obtained by such Holder in exchange for Registrable Securities
acquired by such Holder directly from the Company or one of its Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent in writing to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any Exchange Timber Notes received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Exchange Timber Notes
within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company;
(iv) such Holder is not a Broker-Dealer tendering Registrable
Securities acquired directly from the Company or an affiliate of the
Company; and
(v) such Holder is not acting on behalf of any person who could
not truthfully make the foregoing representations.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Registrable Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Company shall issue and deliver to such
Initial Purchaser, to the extent permitted by applicable law, or the Person
purchasing Exchange Timber Notes registered under a Shelf Registration Statement
as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for
such Registrable Securities, a like principal amount of exchange timber notes
that will, upon sale pursuant to a Shelf Registration Statement become Exchange
Timber Notes. The Company shall use its best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number for such Exchange Timber Notes as for
Exchange Timber Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its counsel that it is not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof; (ii) for any
other reason the Exchange Offer Registration Statement is not declared effective
within 180 days of the Closing Date or the Registered Exchange Offer is not
consummated within 240 days of the Closing Date; (iii) any Initial Purchaser so
requests with respect to Registrable Securities that are not eligible to be
exchanged for Exchange Timber Notes in the Registered Exchange Offer or the
Initial Purchasers do not receive freely tradeable Exchange Timber Notes in the
Registered Exchange Offer; (iv) any Holder notifies the Company in writing
within 15 days after receipt of the Prospectus forming part of the Exchange
Offer Registration Statement that (A) in the opinion of nationally-recognized
counsel for such Holder (or counsel acting for or by reference to all Holders),
due to a change in law or Commission staff interpretation which change occurs
subsequent to the date hereof, such Holder is not entitled to participate in the
Registered Exchange Offer or (B) in the opinion of nationally-recognized counsel
for such Holder (or counsel acting for or by reference to all Holders), due to a
change in law or Commission staff interpretation which change occurs subsequent
to the date hereof, such Holder may not resell the Exchange Timber Notes
acquired by it in the Registered Exchange Offer to the public without delivering
a Prospectus and (x) the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder and
(y) such Prospectus is not promptly amended or modified in order to be suitable
for use in connection with resales by such Holder; (v) any Holder (other than an
Initial Purchaser) of Registrable Securities is not eligible to participate in
the Registered Exchange Offer or such Holder does not receive freely tradeable
Exchange Timber Notes in the Registered Exchange Offer other than by reason of
such Holder being an Affiliate of the Company (it being understood that (x) the
requirement that an Initial Purchaser deliver a Prospectus containing the
information required by Item 507 or 508 of Regulation S-K under the Act in
connection with sales of Exchange Timber Notes acquired in exchange for such
Registrable Securities shall not result in such Exchange Timber Notes being not
"freely tradeable" and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Timber Notes acquired in the
Registered Exchange Offer in exchange for Timber Notes acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Timber Notes being not "freely treadable") or (vi) the Company so
elects, the Company shall effect a Shelf Registration Statement in accordance
with subsection (b) below.
(b) The Company shall as promptly as practicable file with the
Commission and thereafter shall use its reasonable best efforts to cause to be
declared effective under the Act a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities or the Exchange Timber Notes, as
applicable, by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder shall be entitled to
have the Registrable Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and furnishes to the
Company in writing such information as the Company may reasonably request for
inclusion in any Shelf Registration Statement or Prospectus included therein
with regard to information relating to such Holders; and provided further, that
with respect to Exchange Timber Notes received by an Initial Purchaser in
exchange for Registrable Securities constituting any portion of an unsold
allotment, the Company may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Item 507 or 508 of
Regulation S-K, as applicable, in satisfaction of its obligations under this
subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(i) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and
amended as required by the Act, in order to permit the Prospectus forming
part thereof to be usable by Holders for a period of two years from the
Closing Date or for such shorter period which will terminate when all of
the Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or otherwise cease
to be Registrable Securities (such period being called the "Shelf
Registration Period"). The Company shall be deemed not to have used its
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that would
result in Holders of Registrable Securities covered thereby not being able
to offer and sell such Registrable Securities during that period, unless
(A) such action is required by applicable law or interpretations of the
staff of the Commission; or (B) such action is taken by the
Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets.
(ii) The Company shall cause the Shelf Registration Statement and
the related Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the applicable
requirements of the Act and the rules and regulations of the Commission;
and (B) not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, in a time and manner that presents reasonable
opportunity for review and comment thereof with the Commission, a copy of
any Exchange Offer Registration Statement and any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement, if
any, to the Prospectus included therein (including all documents
incorporated by reference therein after the initial filing) and shall use
its reasonable best efforts to reflect in each such document, when so filed
with the Commission, such comments as you reasonably propose;
(ii) include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus contained in
the Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as applicable,
in the Prospectus contained in the Exchange Offer Registration Statement;
and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Registrable Securities pursuant
to the Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Act and the rules and
regulations thereunder;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (excluding
statements or omission made in reliance upon and in conformity with written
information furnished to the Company by any Holder, any Broker-Dealer or
any underwriter with respect to either such Holder, Broker-Dealer or
underwriter, as the case may be, expressly for use in the Registration
Statement (or any amendment thereto)); and
(iii) any Prospectus forming part of any Registration Statement
and any amendment or supplement to such Prospectus do not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (excluding statements or
omission made in reliance upon and in conformity with written information
furnished to the Company by any Holder, any Broker-Dealer or any
underwriter with respect to either such Holder, Broker-Dealer or
underwriter, as the case may be, expressly for use in any Prospectus (or
amendment or supplement thereto)).
(c) The Company shall advise you, the Holders of Registrable
Securities covered by any Shelf Registration Statement and any Exchanging Dealer
under any Exchange Offer Registration Statement that has provided in writing to
the Company a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm such
advice in writing (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until the
Company shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
therein for sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(v) of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
(d) The Company shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Registrable Securities
covered by any Shelf Registration Statement, without charge, at least one copy
of such Shelf Registration Statement and any post-effective amendment thereto,
and, if the Holder so requests in writing, all material incorporated therein by
reference, and all exhibits thereto (including exhibits incorporated by
reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Registrable Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of securities in connection with the
offering and sale of the securities covered by the Prospectus, or any amendment
or supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, and, if the Exchanging
Dealer so requests in writing, all material incorporated by reference therein,
and all exhibits thereto (including exhibits incorporated by reference therein).
(h) If required under applicable securities laws, upon prior written
request, the Company shall make available for a period of 90 days after the
consummation of the Registered Exchange Offer, to each Initial Purchaser, each
Exchanging Dealer and each other Person required to deliver a Prospectus during
the Exchange Offer Registration Period, without charge, as many copies of the
Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such Person may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by any Initial Purchaser, any Exchanging Dealer and any such other
Person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange Timber
Notes covered by the Prospectus, or any amendment or supplement thereto,
included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Registrable Securities pursuant to any Registration Statement, the Company shall
use its reasonable best efforts to arrange, if necessary, for the qualification
of the Registrable Securities or the Exchange Timber Notes for sale under the
laws of such jurisdictions as any Holder shall reasonably request and will
maintain such qualification in effect so long as required; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to service of process in suits, in any such jurisdiction where it is
not then so subject.
(j) The Company shall cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Exchange Timber Notes or Timber Notes to be issued or sold pursuant
to any Registration Statement free of any restrictive legends and in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as Holders may reasonably request at least two Business Days prior
to closing of a sale.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly prepare a post-effective
amendment to the applicable Registration Statement or an amendment or supplement
to the related Prospectus or file any other required document so that, as
thereafter delivered to Initial Purchasers of the securities included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. In such
circumstances, the period of effectiveness of the Exchange Offer Registration
Statement provided for in Section 2 and the Shelf Registration Statement
provided for in Section 3(b) shall each be extended by the number of days from
and including the date of the giving of a notice of suspension pursuant to
Section 4(c) to and including the date when such amended or supplemented
Prospectus pursuant to this Section was sent to the Initial Purchasers, the
Holders of the Registrable Securities and any known Exchanging Dealer.
(l) Not later than the effective date of any Registration Statement,
the Company shall provide a CUSIP number for the Registrable Securities or the
Exchange Timber Notes, as the case may be, registered under such Registration
Statement and provide the Trustee with printed certificates for such Registrable
Securities or Exchange Timber Notes, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall comply with all applicable rules and regulations
of the Commission and shall make generally available to its security holders as
soon as practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section 11(a) of
the Act.
(n) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as the
Company may from time to time reasonably require for inclusion in such
Registration Statement. The Company may exclude from such Shelf Registration
Statement the Registrable Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into such agreements and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to expedite or
facilitate the registration or the disposition of the Registrable Securities,
and in connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less favorable
than those set forth in Section 6 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any, with
respect to all parties to be indemnified pursuant to Section 6).
(q) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection during normal
business hours by the Holders of Registrable Securities to be registered
thereunder, any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of the Company
and its subsidiaries as shall be reasonably necessary to enable such
persons to exercise any applicable due diligence responsibilities;
(ii) cause the Company's officers, managers and employees to
supply all relevant information reasonably requested by the Holders or any
such underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders or
any such underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality, in which case
the Company will be given prompt notice and will be entitled to take
appropriate action to prevent disclosure of such information; and
(iii) make such representations and warranties to the Holders of
Registrable Securities registered thereunder and the underwriters, if any,
in form, substance and scope as are customarily made by issuers in
offerings pursuant to shelf registrations and covering matters including,
but not limited to, those set forth in the Purchase Agreement.
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested in offerings
pursuant to shelf registrations and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company and Palco, (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or Palco of any business acquired by the Company
or Palco for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each
selling Holder of Registrable Securities registered hereunder and the
underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with offerings
pursuant to shelf registrations ; or if requested by such Initial Purchaser
or its counsel in lieu of or in addition to a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by such Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Company shall:
(i) make reasonably available for inspection during normal
business hours by such Initial Purchaser, and any attorney, accountant or
other agent retained by such Initial Purchaser, all relevant financial and
other records, pertinent corporate documents and properties of the Company
and its subsidiaries as shall be reasonably necessary to enable such
persons to exercise any applicable due diligence responsibilities;
(ii) cause the Company's officers, managers, and employees to
supply all relevant information reasonably requested by such Initial
Purchaser or any such attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Initial
Purchaser or any such attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality, in which case
the Company will be given prompt notice and will be entitled to take
appropriate action to prevent disclosure of such information; and
(iii) make such representations and warranties to such Initial
Purchaser, in form, substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement.
(s) If a Registered Exchange Offer is to be consummated, upon delivery
of the Registrable Securities by Holders to the Company (or to such other Person
as directed by the Company) in exchange for the Exchange Timber Notes, the
Company shall xxxx, or caused to be marked, on the Registrable Securities so
exchanged that such Registrable Securities are being canceled in exchange for
the Exchange Timber Notes. In no event shall the Timber Notes be marked as paid
or otherwise satisfied.
(t) The Company will use its best efforts to cause the Registrable
Securities covered by a Registration Statement to be rated by the Rating
Agencies, if so requested by Majority Holders with respect to the related
Registration Statement or by any Initial Purchaser.
(u) In the event that any Broker-Dealer shall underwrite any
Registrable Securities or participate as a member of an underwriting syndicate
or selling group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of Securities
Dealers, Inc.) thereof, whether as a Holder of such Registrable Securities or as
an underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company shall assist such Broker-Dealer in complying
with the requirements of such Rules and By-Laws, including, without limitation,
by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto;
(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 6
hereof; and
(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the requirements of
such Rules.
(v) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Registrable Securities
or the Exchange Timber Notes, as the case may be, covered by a Registration
Statement.
5. Registration Expenses. The Company shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, will reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of one counsel acting in connection therewith.
6. Indemnification and Contribution. (a) The Company and Palco jointly
and severally agree to indemnify and hold harmless each Holder of Registrable
Securities or Exchange Timber Notes, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and, with respect to
any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer), the directors, officers, employees and agents of each such Holder and
each Person who controls any such Holder within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Prospectus, or in any
amendment thereof or supplement thereto, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that neither the Company
nor Palco will be liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any such Holder specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
and Palco may otherwise have.
The Company and Palco, jointly and severally, further agree to
indemnify or contribute as provided in Section 6(d) to Losses of any underwriter
of Registrable Securities or Exchange Timber Notes, as the case may be,
registered under a Shelf Registration Statement, their directors, officers,
employees or agents and each Person who controls such underwriter on
substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(h) hereof, each Exchanging Dealer) severally agrees
to indemnify and hold harmless the Company, each of its managers, each of its
officers, employees and agents and each Person, if any, who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ one
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless (i) such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party. An indemnified party will not,
without the prior written consent of the indemnifying parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnifying parties are actual or potential parties to such claim or action)
unless (i) such settlement, compromise or consent includes an unconditional
release of each indemnifying party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Registrable Securities or Exchange Timber Note be responsible, in
the aggregate, for any amount in excess of the purchase discount or commission
applicable to such Registrable Securities, or in the case of a Exchange Timber
Note, applicable to the Registrable Securities that was exchangeable into such
Exchange Timber Note, as set forth on the cover page of the Final Memorandum,
nor shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company [and Palco]
shall be deemed to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Memorandum.
Benefits received by the Initial Purchasers shall be deemed to be equal to the
total purchase discounts and commissions as set forth on the cover page of the
Final Memorandum, and benefits received by any other Holders shall be deemed to
be equal to the value of receiving Registrable Securities or Exchange Timber
Notes, as applicable, registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to, among other things, whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The parties agree that
it would not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section, each Person who controls a Holder within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
Person who controls the Company within the meaning of either the Act or the
Exchange Act, and each manager, officer, employee and agent of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, managers or controlling Persons referred to
in this Section hereof, and will survive the sale by a Holder of securities
covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Registrable
Securities or Exchange Timber Notes, as the case may be, covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the Managing
Underwriter(s) shall be selected by the Majority Holders or, after the
consummation of any Registered Exchange Offer in accordance with Section 2
hereof, of Holders of not less than a majority in aggregate principal amount of
the then outstanding Exchange Timber Notes.
(b) No Person may participate in any underwritten offering pursuant to
any Shelf Registration Statement, unless such Person (i) agrees to sell such
Person's Registrable Securities or Exchange Timber Notes, as the case may be, on
the basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the
terms of such underwriting arrangements.
8. No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of Holders of not less than
a majority in aggregate principal amount of the then outstanding Exchange Timber
Notes; provided that, with respect to any matter that directly or indirectly
affects the rights of any Initial Purchaser hereunder, the Company shall obtain
the written consent of each such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective. Notwithstanding
the foregoing (except the foregoing proviso), a waiver or consent to departure
from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose Registrable Securities or Exchange Timber Notes, as
the case may be, are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be given
by the Majority Holders, determined on the basis of Registrable Securities or
Exchange Timber Notes, as the case may be, being sold under such Registration
Statement.
10. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section, which address
initially is, with respect to each Holder, the address of such Holder maintained
by the Registrar under the Indenture, with a copy in like manner to Salomon
Brothers Inc;
(b) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreemnt, with a copy to Kramer, Levin, Naftalis & Xxxxxxx.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Registrable Securities and the Exchange
Timber Notes. Notwithstanding the foregoing, nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Registrable Securities and the Exchange Timber Notes, and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
12. Counterparts. This agreement may be in signed counterparts, each
of which shall an original and all of which together shall constitute one and
the same agreement.
13. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York without application of the
conflict of laws provisions thereof.
15. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
16. Registrable Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Registrable Securities or Exchange Timber Notes is required hereunder,
Registrable Securities or Exchange Timber Notes, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Registrable
Securities or Exchange Timber Notes if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Registrable Securities or
Exchange Timber Notes) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Initial Purchasers.
Very truly yours,
SCOTIA PACIFIC COMPANY LLC
By: /S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Vice President - Finance
and Administration
SALOMON BROTHERS INC
BANCAMERICA XXXXXXXXX XXXXXXXX
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: SALOMON BROTHERS INC
as Representative
By: /S/ XXXX X. XXXXXX
Name: Xxxx X. Xxxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed by THE PACIFIC LUMBER COMPANY
and accepted as of the date first above written with respect to Section 6 above.
By: /S/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
ANNEX A
Each Broker-Dealer that receives Exchange Timber Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Timber Notes.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a Broker-Dealer in
connection with resales of Exchange Timber Notes received in exchange for Timber
Notes where such Timber Notes were acquired by such Broker- Dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date (as defined herein) and ending on the
close of business one year after the Expiration Date, it will make this
Prospectus available to any Broker-Dealer for use in connection with any such
resale. See "Plan of Distribution."
ANNEX B
Each Broker-Dealer that receives Exchange Timber Notes for its own account in
exchange for Timber Notes, where such Timber Notes were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Timber Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Timber Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Timber Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Timber Notes received
in exchange for Timber Notes where such Timber Notes were acquired as a result
of market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until [date] all dealers effecting transactions in the
Exchange Timber Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Timber Notes by brokers-dealers. Exchange Timber Notes received
by Broker-Dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the
Exchange Timber Notes or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such Broker-Dealer and/or the
purchasers of any such Exchange Timber Notes. Any Broker-Dealer that resales
Exchange Timber Notes that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a distribution
of such Exchange Timber Notes may be deemed to be an "underwriter" within the
meaning of the Act and any profit of any such resale of Exchange Timber Notes
and any commissions or concessions received by any such Persons may be deemed to
be underwriting compensation under the Act. The Letter of Transmittal states
that by acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of one year after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Timber Notes) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Timber Notes (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Act.
[If applicable, add information required by Regulation S-K Items
507 and/or 508.]
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES
OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Timber Notes in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Timber Notes and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Timber Notes. If the undersigned
is a Broker-Dealer that will receive Exchange Timber Notes for its own account
in exchange for Timber Notes, it represents that the Timber Notes to be
exchanged for Exchange Timber Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Timber
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
