-------------------------------------------------------------------------------
NORSKE XXXX CANADA LIMITED
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
----------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 28th, 2001
to
INDENTURE
Dated as of August 14, 2001
by and between
NORSKE XXXX CANADA LIMITED, as Issuer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as Trustee
-------------------------
$250,000,000
8 5/8% Senior Notes Due 2011
-------------------------------------------------------------------------------
ARTICLE I
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 1.01 Reaffirmation..............................................2
ARTICLE II
GUARANTEE OF NOTES
Section 2.01 Guarantee..................................................2
Section 2.02 Execution and Delivery of Guarantee........................3
Section 2.03 Limitation of Guarantee....................................4
Section 2.04 Release of Guarantor.......................................4
Section 2.05 Assumption of Terms of the Indenture.......................5
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01 Terms Defined..............................................5
Section 3.02 Governing Law..............................................5
Section 3.03 Successors.................................................5
Section 3.04 Multiple Counterparts......................................5
Section 3.05 Effectiveness..............................................5
Section 3.06 Trustee Disclaimer.........................................5
Section 3.07 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.................................................6
i
FIRST SUPPLEMENTAL INDENTURE dated as of August 28th, 2001, by and among
NORSKE XXXX CANADA LIMITED, a Canadian corporation (the "COMPANY"), PACIFICA
PAPERS INC., PACIFICA PAPERS CO. LIMITED PARTNERSHIP, PACIFICA PAPERS SALES
LTD., PACIFICA PAPERS SALES INC., PACIFICA PAPER KABUSHIKI KAISHA, PACIFICA
POPLARS LTD., PACIFICA POPLARS INC., PACIFICA PAPERS US INC., EXPORT SALES
COMPANY LIMITED (the "NEW GUARANTORS"), the guarantors set forth on the
signature pages hereto (the "EXISTING GUARANTORS") (together with the New
Guarantors 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 (the
"INDENTURE"), providing for the issuance of up to $250,000,000 aggregate
principal amount of the Company's 8 5/8 % 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 Company acquired all the shares of PACIFICA PAPERS INC.
("PACIFICA") on August 27, 2001; and
WHEREAS, the New Guarantors (other than Pacifica) are subsidiaries of
Pacifica; and
WHEREAS, the Indenture provides that under certain circumstances the New
Guarantors shall execute and deliver to the Trustee a supplemental indenture
pursuant to which each of the New Guarantors 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 Existing Guarantors desire, by this First Supplemental
Indenture, to expressly reaffirm, jointly and severally, the obligations of the
Existing Guarantors under the Indenture and under the Guarantees endorsed on the
Notes; and
WHEREAS, the execution and delivery of this First Supplemental Indenture
has been duly and validly authorized by a resolution of the Company and each of
the Existing Guarantors and each of the New Guarantors; and
WHEREAS, all the conditions and requirements necessary to make this First
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:
1
ARTICLE I
REAFFIRMATION OF OBLIGATIONS OF THE GUARANTORS
Section 1.01 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 First
Supplemental Indenture and in each Guarantee endorsed on any Notes delivered
hereafter.
ARTICLE II
GUARANTEE OF NOTES
Section 2.01 GUARANTEE. Each New Guarantor hereby jointly and
severally and 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 or 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, each 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 New Guarantors hereunder in the same manner
and to the same extent as the obligations of the Company.
Each New Guarantor, by execution of the 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 of
defense of a Guarantor. Each New
2
Guarantor, by execution of the Guarantee, waives the benefit of diligence,
presentment, demand for 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 such Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Guarantee. The
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.
Each 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 the 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 Guarantors 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 any 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 2.02 EXECUTION AND DELIVERY OF GUARANTEE. To further evidence
the Guarantee set forth in Section 2.01 hereof, each 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 each New Guarantor. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is endorsed on any particular Note.
3
Each New Guarantor agrees that its Guarantee set forth in Section 2.01
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 a 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, such 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 any Guarantee set forth in
the Indenture on behalf of the New Guarantors.
Section 2.03 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 2.04 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 Section 10.05 of the
Indenture and this Section 2.04 have been satisfied, the Trustee shall execute
any documents reasonably requested by the Company or any Guarantor in order to
evidence the release of such Guarantor
4
from its obligations under its Guarantee endorsed on the Notes and under Article
Ten of the Indenture.
Section 2.05 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 III
MISCELLANEOUS PROVISIONS
Section 3.01 TERMS DEFINED. For all purposes of this First Supplemental
Indenture, except as otherwise defined or unless the context otherwise requires,
terms used in capitalized form in this First Supplement Indenture and defined in
the Indenture have the meanings specified in the Indenture.
Section 3.02 GOVERNING LAW. THIS FIRST 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 3.03 SUCCESSORS. All agreements of the Company, any Existing
Guarantor and any New Guarantor in the Indenture, this First Supplemental
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 First Supplemental Indenture shall bind its successor.
Section 3.04 MULTIPLE COUNTERPARTS. The parties may sign multiple
counterparts of this First Supplemental Indenture. Each signed counterpart shall
be deemed an original, but all of them together represent the same agreement.
Section 3.05 EFFECTIVENESS. The provisions of this First 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 3.06 TRUSTEE DISCLAIMER. The Trustee accepts the amendment of the
Indenture effected by this First 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 First Supplemental Indenture
or any of the terms or provisions hereof, (ii) the proper authorization hereto
by the
5
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 3.07 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. By the execution and delivery of this First Supplemental Indenture,
each New 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, or this First 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 New Guarantor further agrees 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 3.07
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 3.07. 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 each New Guarantor, if
any, appointed and acting in accordance with this Section 3.07.
6
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the date first written above.
THE NEW GUARANTORS:
PACIFICA PAPERS INC.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
EXPORT SALES COMPANY LIMITED
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
PACIFICA POPLARS LTD.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
PACIFICA POPLARS INC.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
7
PACIFICA PAPERS SALES INC.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
PACIFICA PAPERS US INC.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
PACIFICA PAPERS CO. LIMITED PARTNERSHIP
by its general partner PACIFICA
PAPERS INC.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
PACIFICA PAPERS SALES LTD.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
PACIFICA PAPERS KABUSHIKI KAISHA.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
8
THE COMPANY:
NORSKE XXXX CANADA LIMITED
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
By:/s/ P. Stalger
____________________________________
Name: Xxxxx Stalger
Title: Treasurer
THE EXISTING GUARANTORS:
ELK FALLS PULP AND PAPER LIMITED
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
NORSKE XXXX CANADA (JAPAN) LTD.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
9
NORSKE XXXX CANADA FINANCE LIMITED
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
NORSKE XXXX CANADA PULP OPERATIONS
LIMITED
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
NORSKE XXXX CANADA PULP SALES INC.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
NORSKE XXXX CANADA SALES INC.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
NORSKE XXXX PAPER COMPANY
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
10
NSCL HOLDINGS INC.
By:/s/ X. Xxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice-President, Finance,
Chief Financial Officer
and Secretary
11
THE TRUSTEE:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:/s/ Xxxxxx X. Xxxxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice-President
12
