EXHIBIT 10.13
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NORSKE XXXX CANADA LIMITED
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of September 30, 2002
to
INDENTURE
Dated as of August 14, 2001
by and among
NORSKE XXXX CANADA LIMITED, as Issuer
The GUARANTORS named therein
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
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$250,000,000
8-5/8% Senior Notes Due 2011
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ARTICLE I
Section 1.01 AMENDMENT OF INDENTURE..............................2
ARTICLE II
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 2.01 ASSUMPTION AND REAFFIRMATION........................3
ARTICLE III
GUARANTEE OF NOTES
Section 3.01 GUARANTEE...........................................3
Section 3.02 EXECUTION AND DELIVERY OF GUARANTEE.................4
Section 3.03 LIMITATION OF GUARANTEE.............................5
Section 3.04 RELEASE OF GUARANTOR................................5
Section 3.05 ASSUMPTION OF TERMS OF THE INDENTURE................6
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01 TERMS DEFINED.......................................6
Section 4.02 GOVERNING LAW.......................................6
Section 4.03 SUCCESSORS..........................................6
Section 4.04 MULTIPLE COUNTERPARTS...............................6
Section 4.05 EFFECTIVENESS.......................................6
Section 4.06 TRUSTEE DISCLAIMER..................................6
Section 4.07 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES................................7
i
THIRD SUPPLEMENTAL INDENTURE dated as of September __, 2002,
by and among NORSKE XXXX CANADA LIMITED, a Canadian corporation (the "COMPANY"),
ALLWIN TECHNICAL SERVICES INC. (the "NEW GUARANTOR"), the guarantors set forth
on the signature pages hereto (the "EXISTING GUARANTORS", and together with the
New Guarantor, the "GUARANTORS"), and XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION as trustee under the hereafter defined Indenture (the "TRUSTEE").
WHEREAS the Company and the Existing Guarantors heretofore
executed and delivered to the Trustee an indenture dated as of August 14, 2001,
as supplemented by a First Supplemental Indenture dated August 28, 2001 and a
Second Supplemental Indenture dated as of September 1, 2001 (as supplemented,
the "INDENTURE"), providing for the issuance of up to $250,000,000 aggregate
principal amount of the Company's 85/8 % Senior Notes Due 2011 (the "NOTES");
and
WHEREAS, there have been issued and are now outstanding under
the Indenture, Notes in the aggregate principal amount of $250,000,000; and
WHEREAS, the New Guarantor was previously jointly owned by
the Company and ASEA XXXXX BOVERI INC.; and
WHEREAS, by reason of that joint ownership, Section 1.1 of the
Indenture specifically excluded the New Guarantor from the definition of
"Subsidiary"; and
WHEREAS, the Company has acquired all of the issued and
outstanding common shares of the New Guarantor that it did not already own; and
WHEREAS, the Company desires, by this Third Supplemental
Indenture, to amend the Indenture to include the New Guarantor as a Subsidiary
of the Company; and
WHEREAS, if the Indenture is amended to include the New
Guarantor as a Subsidiary, the Indenture provides that the New Guarantor shall
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor shall unconditionally guarantee all of the Company's
obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the "GUARANTEE"); and
WHEREAS, the New Guarantor desires by this Third Supplemental
Indenture, to expressly assume the obligations of the Company under the
Indenture and the Notes; and
WHEREAS, PACIFICA PAPERS CO. LIMITED PARTNERSHIP, one of the
Existing Guarantors, changed to a general partnership and changed its name to
NORSKECANADA; and
WHEREAS, NORSKE XXXX PAPER COMPANY, one of the Existing
Guarantors, has changed its name to NORSKE XXXX CANADA (USA) INC.; and
1
WHEREAS, the Existing Guarantors desire, by this Third
Supplemental Indenture, to expressly reaffirm, jointly and severally, the
obligations of the Guarantors under the Indenture and under the Guarantees
endorsed on the Notes; and
WHEREAS, the execution and delivery of this Third Supplemental
Indenture has been duly and validly authorized by a resolution of the directors
of the Company and each of the Guarantors; and
WHEREAS, all the conditions and requirements necessary to make
this Third Supplemental Indenture a valid, binding and legal instrument in
accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
NOW, THEREFORE, in consideration of the above premises, each
party agrees, for the benefit of the others and for the equal and ratable
benefit of the Holders of the Notes, as follows:
ARTICLE I
Section 1.01 AMENDMENT OF INDENTURE.
The definition of "Subsidiary" in Section 1.1 of the Indenture
is hereby restated and replaced by the following:
"SUBSIDIARY" of any Specified Person means any corporation,
partnership, joint venture, limited liability company, association or other
business entity, whether now existing or hereafter organized or acquired, (i) in
the case of a corporation, of which more than 50% of the total voting power of
the Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, officers or trustees thereof is held by
such first-named Person or any of its Subsidiaries; or (ii) in the case of a
partnership, joint venture, limited liability company, association or other
business entity, with respect to which such first-named Person or any of its
Subsidiaries has the power to direct or cause the direction of the management
and policies of such entities by contract or otherwise or if in accordance with
GAAP such entity is consolidated with the first-named Person for financial
statement purposes; PROVIDED that for greater certainty, the term "Subsidiary"
shall not include Xxxxxx River Energy Inc.
ARTICLE II
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 2.01 ASSUMPTION AND REAFFIRMATION. Each Existing
Guarantor hereby expressly and unconditionally reaffirms each and every
covenant, agreement and undertaking of such Existing Guarantor in the Indenture,
and also hereby expressly and unconditionally reaffirms each and every covenant,
agreement and undertaking in its Guarantee endorsed on the Notes outstanding on
the date of this Third Supplemental Indenture and in each Guarantee endorsed on
any Notes delivered hereafter.
ARTICLE III
GUARANTEE OF NOTES
Section 3.01 GUARANTEE. The New Guarantor hereby jointly and
severally unconditionally guarantees, on a senior unsecured basis, to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors, irrespective of: (i) the validity and enforceability of the
Indenture, the Notes or the obligations of the Company or any other Guarantors
to the Holders or the Trustee hereunder or thereunder; or (ii) the absence of
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or default of a Guarantor, that: (a)
the principal of, premium, if any, interest and Additional Interest, if any, on
and any Additional Amounts, if any, with respect to the Notes will be duly and
punctually paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted by
law) interest or Additional Interest, if any, on Additional Amounts, if any,
with respect to the Notes and all other obligations of the Company or any
Guarantor to the Holders or the Trustee hereunder or thereunder (including
amounts due the Trustee under Section 7.07 of the Indenture) and all other
obligations under the Indenture or the Notes will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed, or failing performance of any other obligation of the Company to
the Holders, for whatever reason, the New Guarantor will be obligated to pay, or
to perform or cause the performance of, the same immediately. An Event of
Default under the Indenture or the Notes shall constitute an event of default
under this Guarantee, and shall entitle the Holders of Notes or the Trustee to
accelerate the obligations of the Guarantor hereunder in the same manner and to
the same extent as the obligations of the Company.
The New Guarantor, by execution of this Guarantee, agrees that
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Indenture or the Notes, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. The New
Guarantor, by execution of this Guarantee, waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that the Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Guarantee. This
Guarantee is a guarantee of payment and not of collection. If any Holder or the
Trustee is required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect. The
New Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (a) subject to Article Ten of the
Indenture, the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Six of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article Six of the
Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by the New Guarantor for the purpose of this Guarantee.
This Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Notes, whether as a "voidable
preference," "fraudulent transfer" or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Notes shall, to the
fullest extent permitted by law, be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
No shareholder, officer, director, employee or incorporator,
past, present or future, of the New Guarantor, as such shall have any personal
liability under this Guarantee by reason of his, her or its status as such
shareholder, officer, director, employee or incorporator.
Section 3.02 EXECUTION AND DELIVERY OF GUARANTEE. To further
evidence the Guarantee set forth in Section 3.01 hereof, the New Guarantor
hereby agrees that a notation of such Guarantee, substantially in the form
included in EXHIBIT F of the Indenture, shall be endorsed on each Note
authenticated and delivered by the Trustee after Article 10 of the Indenture
with respect to such New Guarantor becomes effective in accordance with Section
4.13 of the Indenture and such Guarantee shall be executed by either manual or
facsimile signature of an Officer of the New Guarantor. The validity and
enforceability of the Guarantee shall not be affected by the fact that it is not
affixed to any particular Note.
The New Guarantor hereby agrees that its Guarantee set forth
in Section 3.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a
notation of such Guarantee.
If an Officer of the New Guarantor whose signature is on the
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any time
thereafter, the New Guarantor's Guarantee of such Note shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof under the Indenture, shall constitute due delivery of the
Guarantee set forth in the Indenture on behalf of the New Guarantor.
Section 3.03 LIMITATION OF GUARANTEE. The obligations of each
Guarantor are limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of such Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under the Indenture, result in the
obligations of such Guarantor under the Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. Each Guarantor
that makes a payment or distribution under a Guarantee shall be entitled to a
contribution from each other Guarantor in a PRO RATA amount based on the net
assets of each Guarantor, determined in accordance with GAAP.
Section 3.04 RELEASE OF GUARANTOR. A Guarantor shall be
released from all of its obligations under its Guarantee if:
(i) the Guarantor has sold all of its assets or the
Company and its Restricted Subsidiaries have sold all
of the Capital Stock of the Guarantor owned by them,
in each case in a transaction in compliance with the
terms of the Indenture (including Sections 4.10 and
5.01 thereof);
(ii) the Guarantor merges with or into or consolidates
with, or transfers all or substantially all of its
assets to, the Company or another Guarantor in a
transaction in compliance with Section 5.01 of the
Indenture; or
(iii) the Guarantor is designated an Unrestricted
Subsidiary in compliance with the terms of the
Indenture;
and in each such case, the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder and under the
Indenture.
If all of the conditions to release contained in this Section
3.04 and the Indenture have been satisfied, the Trustee shall execute any
documents reasonably requested by the Successor Company or any Guarantor in
order to evidence the release of such Guarantor from its obligations under its
Guarantee endorsed on the Notes and under Article Ten of the Indenture.
Section 3.05 ASSUMPTION OF TERMS OF THE INDENTURE
Each New Guarantor hereby assumes, agrees to be bound and shall have the benefit
of all obligations and terms of the Indenture applicable to a Guarantor.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01 TERMS DEFINED. For all purposes of this Third
Supplemental Indenture, except as otherwise defined or unless the context
otherwise requires, terms used in capitalized form in this Third Supplemental
Indenture and defined in the Indenture have the meanings specified in the
Indenture.
Section 4.02 GOVERNING LAW. THIS THIRD SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 4.03 SUCCESSORS. All agreements of the Company and any
Guarantor in the Indenture and the Notes shall bind their respective successors.
All agreements of the Trustee, any additional trustee and any Paying Agents in
the Indenture or this Second Supplemental Indenture shall bind its successor.
Section 4.04 MULTIPLE COUNTERPARTS. The parties may sign
multiple counterparts of this Second Supplemental Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent the
same agreement.\
Section 4.05 EFFECTIVENESS. The provisions of this Third
Supplemental Indenture will take effect immediately upon its execution and
delivery by the Trustee in accordance with the provisions of Article Eight of
the Indenture.
Section 4.06 TRUSTEE DISCLAIMER. The Trustee accepts the
amendment of the Indenture effected by this Third Supplemental Indenture and
agrees to execute the trust created by the Indenture as hereby amended, but only
upon the terms and conditions set forth in the Indenture, including the terms
and provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture as hereby amended, and without limiting the generality of the
foregoing, the Trustee shall not be responsible in any manner whatsoever for or
with respect to any of the recitals or statement contained herein, all of which
recitals or statements are made solely by the Company and the Guarantors, or for
or with respect to (i) the validity or sufficiency of this Third Supplemental
Indenture or any of the terms or provisions hereof, (ii) the proper
authorization hereto by the Company and each Guarantor by corporate action or
otherwise, (iii) the due execution hereto by the Company and each Guarantor,
(iv) the consequences (direct or indirect and whether
deliberate or inadvertent) of any amendment herein provided for, and the Trustee
makes no representation with respect to any such matters.
Section 4.07 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES. By the execution and delivery of this Third Supplemental
Indenture, each of the Company and each Guarantor (i) acknowledges that it has,
by separate written instrument, designated and appointed CT Corporation System
as its authorized agent upon which process may be served in any suit, action or
proceeding arising out of or relating to the Notes, the Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture, or this Third
Supplemental Indenture, that may be instituted in any Federal or State court in
the State of New York, Borough of Manhattan, or brought under Federal or State
securities laws or brought by the Trustee (whether in its individual capacity or
in its capacity as Trustee hereunder), and acknowledges that CT Corporation
System has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit, action or proceeding, and (iii) agrees that service
of process upon CT Corporation System and written notice of said service to it
(mailed or delivered to its Executive Director at its principal office as
specified in Section 11.02 of the Indenture), shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
Company and each Guarantor further agree to take any and all action, including
the execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of CT Corporation System,
in full force and effect so long as the Indenture shall be in full force and
effect; provided that the Company may and shall (to the extent CT Corporation
System ceases to be able to be served on the basis contemplated herein), by
written notice to the Trustee, designate such additional or alternative agents
for service of process under this Section 4.07 that (i) maintains an office
located in the Borough of Manhattan, The City of New York in the State of New
York, (ii) are either (x) counsel for the Company or (y) a corporate service
company which acts as agent for service of process for other Persons in the
ordinary course of its business and (iii) agrees to act as agent for service of
process in accordance with this Section 4.07. Such notice shall identify the
name of such agent for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, State of New York. Upon the request
of any Holder, the Trustee shall deliver such information to such Holder.
Notwithstanding the foregoing, there shall, at all times, be at least one agent
for service of process for the Company and the New Guarantor, if any, appointed
and acting in accordance with this Section 4.07.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the date first written above.
THE NEW GUARANTOR:
ALLWIN TECHNICAL SERVICES INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
THE COMPANY:
NORSKE XXXX CANADA LIMITED
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: VP Finance and CFO
THE EXISTING GUARANTORS:
ELK FALLS PULP AND PAPER LIMITED
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA (JAPAN) LTD.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Director
NORSKE XXXX CANADA FINANCE LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA PULP SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
8
NORSKE XXXX CANADA SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA (USA) INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: VP Finance and CFO
NSCL HOLDINGS INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKE XXXX CANADA PULP OPERATIONS LIMITED
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA POPLARS LTD.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA POPLARS INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA PAPERS SALES INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA PAPERS US INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
NORSKECANADA by its managing partner
NORSKE XXXX CANADA LIMITED
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: VP Finance and CFO
PACIFICA PAPERS SALES LTD.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Corporate Secretary and
Legal Counsel
PACIFICA PAPERS KABUSHIKI KAISHA
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
THE TRUSTEE:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
