EXHIBIT 4.1
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RIVERSIDE FOREST PRODUCTS LIMITED
and each of the Guarantors PARTY HERETO
7-7/8% SENIOR NOTES DUE 2014
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INDENTURE
Dated as of February 25, 2004
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XXXXX FARGO BANK, NATIONAL ASSOCIATION
Trustee
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310(a)(1).............................................. 7.10
(a)(2)............................................ 7.10
(a)(3)............................................ N.A.
(a)(4)............................................ N.A.
(a)(5)............................................ 7.10
(b)............................................... 7.10
(c)............................................... N.A.
311(a)................................................. 7.11
(b)............................................... 7.11
(c)............................................... N.A.
312(a)................................................. 2.05
(b)............................................... 12.03
(c)............................................... 12.03
313(a)................................................. 7.06
(b)(1)............................................ N.A.
(b)(2)............................................ 7.06; 7.07
(c)............................................... 7.06; 12.02
(d)............................................... 7.06
314(a)................................................. 4.03;12.02; 12.05
(b)............................................... N.A.
(c)(1)............................................ 12.04
(c)(2)............................................ 12.04
(c)(3)............................................ N.A.
(e)............................................... 12.05
(f)............................................... N.A.
315(a)................................................. 7.01
(b)............................................... 7.05; 12.02
(c)............................................... 7.01
(d)............................................... 7.01
(e)............................................... 6.11
316(a) (last sentence)................................. 2.09
(a)(1)(A)......................................... 6.05
(a)(1)(B)......................................... 6.04
(a)(2)............................................ N.A.
(b)............................................... 6.07
(c)............................................... 2.12
317(a)(1).............................................. 6.08
(a)(2)............................................ 6.09
(b)............................................... 2.04
318(a)................................................. 12.01
(b)............................................... N.A.
(c)............................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.................................................................................1
Section 1.02 Other Definitions..........................................................................20
Section 1.03 Incorporation by Reference of Trust Indenture Act..........................................21
Section 1.04 Rules of Construction......................................................................21
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating............................................................................21
Section 2.02 Execution and Authentication...............................................................22
Section 2.03 Registrar and Paying Agent.................................................................22
Section 2.04 Paying Agent to Hold Money in Trust........................................................23
Section 2.05 Holder Lists...............................................................................23
Section 2.06 Transfer and Exchange......................................................................23
Section 2.07 Replacement Notes..........................................................................35
Section 2.08 Outstanding Notes..........................................................................35
Section 2.09 Treasury Notes.............................................................................36
Section 2.10 Temporary Notes............................................................................36
Section 2.11 Cancellation...............................................................................36
Section 2.12 Defaulted Interest.........................................................................36
Section 2.13 Issuance of Additional Notes...............................................................36
Section 2.14 Right to Exchange..........................................................................37
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.........................................................................37
Section 3.02 Selection of Notes to Be Redeemed or Purchased.............................................37
Section 3.03 Notice of Redemption.......................................................................38
Section 3.04 Effect of Notice of Redemption.............................................................38
Section 3.05 Deposit of Redemption or Purchase Price....................................................39
Section 3.06 Notes Redeemed or Purchased in Part........................................................39
Section 3.07 Optional Redemption........................................................................39
Section 3.08 Special Mandatory and Special Optional Redemption..........................................40
Section 3.09 Offer to Purchase by Application of Excess Proceeds........................................40
Section 3.10 Redemption for Changes in Canadian Withholding Taxes.......................................42
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes...........................................................................43
Section 4.02 Maintenance of Office or Agency............................................................43
Section 4.03 Reports....................................................................................43
Section 4.04 Compliance Certificate.....................................................................44
Section 4.05 Taxes......................................................................................45
Section 4.06 Stay, Extension and Usury Laws.............................................................45
Section 4.07 Restricted Payments........................................................................45
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Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.............................48
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.................................49
Section 4.10 Asset Sales................................................................................52
Section 4.11 Transactions with Affiliates...............................................................53
Section 4.12 Liens......................................................................................54
Section 4.13 Business Activities........................................................................55
Section 4.14 Corporate Existence........................................................................55
Section 4.15 Offer to Repurchase Upon Change of Control.................................................55
Section 4.16 Limitation on Sale and Leaseback Transactions..............................................57
Section 4.17 Payments for Consent.......................................................................57
Section 4.18 Additional Note Guarantees.................................................................57
Section 4.19 Designation of Restricted and Unrestricted Subsidiaries....................................57
Section 4.20 Changes in Covenants when Notes Rated Investment Grade.....................................58
Section 4.21 Payment of Additional Amounts..............................................................59
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, Amalgamation or Sale of Assets......................................60
Section 5.02 Successor Corporation Substituted..........................................................61
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default..........................................................................61
Section 6.02 Acceleration...............................................................................64
Section 6.03 Other Remedies.............................................................................64
Section 6.04 Waiver of Past Defaults....................................................................65
Section 6.05 Control by Majority........................................................................65
Section 6.06 Limitation on Suits........................................................................65
Section 6.07 Rights of Holders to Receive Payment.......................................................65
Section 6.08 Collection Suit by Trustee.................................................................66
Section 6.09 Trustee May File Proofs of Claim...........................................................66
Section 6.10 Priorities.................................................................................66
Section 6.11 Undertaking for Costs......................................................................67
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee..........................................................................67
Section 7.02 Rights of Trustee..........................................................................68
Section 7.03 Individual Rights of Trustee...............................................................68
Section 7.04 Trustee's Disclaimer.......................................................................68
Section 7.05 Notice of Defaults.........................................................................69
Section 7.06 Reports by Trustee to Holders of the Notes.................................................69
Section 7.07 Compensation and Indemnity.................................................................69
Section 7.08 Replacement of Trustee.....................................................................70
Section 7.09 Successor Trustee by Merger, etc...........................................................71
Section 7.10 Eligibility; Disqualification..............................................................71
Section 7.11 Preferential Collection of Claims Against Company..........................................71
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance...................................71
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Section 8.02 Legal Defeasance and Discharge.............................................................71
Section 8.03 Covenant Defeasance........................................................................72
Section 8.04 Conditions to Legal or Covenant Defeasance.................................................72
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.................................................................................73
Section 8.06 Repayment to Company.......................................................................74
Section 8.07 Reinstatement..............................................................................74
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders.................................................................75
Section 9.02 With Consent of Holders....................................................................75
Section 9.03 Compliance with Trust Indenture Act........................................................77
Section 9.04 Revocation and Effect of Consents..........................................................77
Section 9.05 Notation on or Exchange of Notes...........................................................77
Section 9.06 Trustee to Sign Amendments, etc............................................................77
ARTICLE 10
NOTE GUARANTEES
Section 10.01. Guarantee.................................................................................77
Section 10.02. Limitation on Guarantor Liability.........................................................78
Section 10.03. Execution and Delivery of Note Guarantee..................................................79
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms........................................79
Section 10.05. Releases..................................................................................80
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge.................................................................81
Section 11.02 Application of Trust Money.................................................................81
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls...............................................................82
Section 12.02 Notices....................................................................................82
Section 12.03 Communication by Holders with Other Holders................................................83
Section 12.04 Certificate and Opinion as to Conditions Precedent.........................................83
Section 12.05 Statements Required in Certificate or Opinion..............................................84
Section 12.06 Rules by Trustee and Agents................................................................84
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders...................84
Section 12.08 Governing Law..............................................................................84
Section 12.09 No Adverse Interpretation of Other Agreements..............................................84
Section 12.10 Successors.................................................................................85
Section 12.11 Severability...............................................................................85
Section 12.12 Counterpart Originals......................................................................85
Section 12.13 Table of Contents, Headings, etc...........................................................85
Section 12.14 Consent to Jurisdiction....................................................................85
Section 12.15 Obligation Currency........................................................................86
EXHIBITS
Exhibit A FORM OF NOTE
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Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
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INDENTURE, dated as of February 25, 2004, among Riverside Forest
Products Limited, a British Columbia corporation, the Guarantors (as defined)
and Xxxxx Fargo Bank, National Association. In this Indenture, references to "$"
or "dollars" are to Canadian dollars and references to "US$" and "U.S. dollars"
are to United States dollars.
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as
defined) of the 7-7/8% Senior Notes due 2014 (the "NOTES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 DEFINITIONS.
"144A GLOBAL NOTE" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Restricted Subsidiary of, such specified Person;
and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"ACQUISITION" means the acquisition of Lignum and its subsidiaries
pursuant to the acquisition agreement among the Company, Xxxxxx X. Xxxx Ltd.,
Xxxxxxx X. Xxxx and Xxxx X. Xxxx, dated as of February 1, 2004, pursuant to
which the Company agreed to acquire all of the outstanding common stock of
Lignum.
"ADDITIONAL NOTES" means additional Notes (other than the Initial
Notes) issued under this Indenture in accordance with Sections 2.02 and 2.13
hereof, and as permitted by Section 4.09 hereof, as part of the same series as
the Initial Notes.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; PROVIDED that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH" have correlative meanings.
"AGENT" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights; PROVIDED that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole will be governed by
the provisions of Section 4.15 hereof and/or Section 5.01 hereof and
not by the provisions of Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its
Restricted Subsidiaries.
Notwithstanding the preceding, none of the following items will be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions
that involves assets having a Fair Market Value of less than $1.0
million;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries (including any Person that becomes a Restricted
Subsidiary in connection with such transactions);
(3) an issuance of Equity Interests by a Restricted Subsidiary
of the Company to the Company or to a Restricted Subsidiary of the
Company;
(4) the sale or lease of inventory, equipment, products,
services or accounts receivable in the ordinary course of business and
any sale or other disposition of damaged, worn-out or obsolete assets
in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) a Restricted Payment that does not violate the provisions
of Section 4.07 hereof; and
(7) a Permitted Investment.
"ATTRIBUTABLE DEBT" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP; PROVIDED,
HOWEVER, that if such sale and leaseback transaction results in a Capital Lease
Obligation, the amount of Indebtedness represented thereby will be determined in
accordance with the definition of "CAPITAL LEASE OBLIGATION."
"BANKRUPTCY LAW" means the BANKRUPTCY AND INSOLVENCY ACT (Canada), the
COMPANIES' CREDITORS ARRANGEMENT ACT (Canada), or Title 11, U.S. Code, each as
amended, or any similar bankruptcy or insolvency law, and other laws concerning
formal or informal moratoria of debt or compositions with creditors, and
proceedings seeking reorganization, arrangement, or other relief of debtors.
2
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time. The terms "BENEFICIALLY OWNS" and
"BENEFICIALLY OWNED" have a corresponding meaning.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors of
the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or committee
of such Person serving a similar function.
"BORROWING BASE" means, as of any date, an amount equal to:
(1) 75% of the book value of all accounts receivable, net of
reserves, owned by the Company and its Restricted Subsidiaries as of
the end of the most recent fiscal quarter preceding such date, all
calculated on a consolidated basis and in accordance with GAAP; PLUS
(2) 100% of the face amount of all tax receivables owned by
the Company and its Restricted Subsidiaries from the Government of
Canada or of any province or territory thereof or by any authority or
agency therein or thereof having power to tax as of the end of the most
recent fiscal quarter preceding such date, all calculated on a
consolidated basis in accordance with GAAP; PLUS
(3) 50% of the book value of all inventory, net of reserves,
owned by the Company and its Restricted Subsidiaries as of the end of
the most recent fiscal quarter preceding such date, all calculated on a
consolidated basis in accordance with GAAP.
"BROKER-DEALER" has the meaning set forth in the Registration Rights
Agreement.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet prepared in
accordance with GAAP.
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock of any
class;
(2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
3
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person,
but excluding from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.
"CASH EQUIVALENTS" means:
(1) United States dollars;
(2) Canadian dollars;
(3) securities issued or directly and fully guaranteed or
insured by the United States or Canadian government or any agency or
instrumentality of the United States or Canadian government (PROVIDED
that the full faith and credit of the United States or Canada,
respectively, is pledged in support of those securities) having
maturities of not more than one year from the date of acquisition;
(4) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank
deposits, in each case, with any lender party to the Credit Agreement
or with any commercial bank organized under the laws of the United
States of America or Canada or any state or province, as the case may
be, thereof or the District of Columbia having capital and surplus in
excess of $250.0 million and a Thomson Bank Watch Rating of "B" or
better;
(5) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (3)
and (4) above entered into with any financial institution meeting the
qualifications specified in clause (4) above;
(6) commercial paper having one of the two highest ratings
obtainable from Moody's or S&P and, in each case, maturing within one
year after the date of acquisition; PROVIDED that, in the event that
any such obligation is not rated by Moody's or S&P, such obligation
should have the highest rating from Canadian Bond Rating Services; and
(7) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (6) of this definition.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance
or other disposition (other than by way of amalgamation, merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any "person" (as that term is used
in Section 13(d)(3) of the Exchange Act) other than a Permitted Holder
or a Related Party of a Permitted Holder;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company;
4
(3) the consummation of any transaction (including, without
limitation, any amalgamation, merger or consolidation), the result of
which is that any "person" (as defined in clause (1) above), other than
one or more Permitted Holders, becomes the Beneficial Owner, directly
or indirectly, of more than 50% of the Voting Stock of the Company,
measured by voting power rather than number of shares; PROVIDED,
HOWEVER, that it is not a "Change of Control" if pursuant to such
transaction all of the Voting Stock of the Company is changed into or
exchanged for securities of a parent corporation that, after such
transaction, owns all of the Capital Stock of the Company and no
"person" (as defined in clause (1) above), other than one or more
Permitted Holders, is the Beneficial Owner, directly or indirectly, of
more than 50% of the Voting Stock of such parent corporation; PROVIDED,
FURTHER, that it shall be a "Change of Control" if, at any time after
such transaction, any "person" (as defined in clause (1) above), other
than one or more Permitted Holders, becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of such
parent corporation;
(4) the Company consolidates or amalgamates with, or merges
with or into, any Person, or any Person consolidates or amalgamates
with, or merges with or into, the Company, in any such event pursuant
to a transaction in which any of the outstanding Voting Stock of the
Company or such other Person is converted into or exchanged for cash,
securities or other property, other than any such transaction where the
Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting
a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such
issuance); or
(5) the first day on which a majority of the members of the
Board of Directors of the Company are not Continuing Directors.
"CLEARSTREAM" means Clearstream Banking, S.A.
"COMPANY" means, Riverside Forest Products Limited, a corporation
amalgamated under the laws of the Province of British Columbia, Canada, and any
and all successors thereto.
"CONSOLIDATED CASH FLOW" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period PLUS,
without duplication:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were deducted
in computing such Consolidated Net Income; PLUS
(2) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such
Consolidated Net Income; PLUS
(3) the Fixed Charges of such Person and its Restricted
Subsidiaries for such period, to the extent that such Fixed Charges
were deducted in computing such Consolidated Net Income; PLUS
(4) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash
5
expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; MINUS
(5) non-cash items increasing such Consolidated Net Income for
such period, other than the accrual of revenue in the ordinary course
of business,
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other non-cash
expenses of, a Restricted Subsidiary of the Company will be added to
Consolidated Net Income to compute Consolidated Cash Flow of the Company only to
the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; PROVIDED that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of
dividends or similar distributions paid in cash to the specified Person
or a Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary will be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the cumulative effect of a change in accounting principles
will be excluded; and
(4) notwithstanding clause (1) above, the Net Income of any
Unrestricted Subsidiary will be excluded, whether or not distributed to
the specified Person or one of its Subsidiaries.
"CONSOLIDATED NET TANGIBLE ASSETS" means total assets after deducting:
(1) all current liabilities;
(2) any item representing investments in Unrestricted
Subsidiaries; and
(3) all goodwill, trade names, trademarks, patents,
unamortized debt discount, organization expenses and other like
intangibles (it being understood that other like intangibles do not
include timber, timber cutting rights and timber tenures),
all as set forth on the most recent internal balance sheet of the
Company and its consolidated Restricted Subsidiaries and computed in accordance
with GAAP.
6
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of
this Indenture; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board of Directors at the time of such
nomination or election.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" will be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"CREDIT AGREEMENT" means that certain Credit Agreement, to be dated on
or prior to the date the Acquisition is consummated by and among the Company,
the Lenders and Hedging Lenders named therein and Bank of Montreal, as Agent,
providing for up to $60.0 million of revolving credit borrowings, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and, in each case, as amended, restated,
modified, renewed, refunded, replaced (whether upon or after termination or
otherwise) or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time.
"CREDIT FACILITIES" means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case, with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced (whether upon or after
termination or otherwise) or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a
7
sinking fund obligation or otherwise, or redeemable at the option of the holder
of the Capital Stock, in whole or in part, on or prior to the date that is 91
days after the date on which the Notes mature. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders of the Capital Stock have the right to require the Company
to repurchase such Capital Stock upon the occurrence of a change of control or
an asset sale will not constitute Disqualified Stock if the terms of such
Capital Stock provide that the Company may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07 hereof. The amount of Disqualified Stock deemed to be
outstanding at any time for purposes of this Indenture will be the maximum
amount that the Company and its Restricted Subsidiaries may become obligated to
pay upon the maturity of, or pursuant to any mandatory redemption provisions of,
such Disqualified Stock, exclusive of accrued dividends.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means an offer and sale of Capital Stock (other than
Disqualified Stock) of the Company.
"ESCROW AGENT" means Xxxxx Fargo Bank, National Association until a
successor replaces it in accordance with the applicable provisions of the Escrow
and Security Agreement and thereafter means the successor serving thereunder.
"ESCROW AND SECURITY AGREEMENT" means the Escrow and Security
Agreement, dated the date of this Indenture, by and among the Company, the
Trustee and the Escrow Agent.
"ESCROW RELEASE DATE" means the date, if any, on which the Escrow
Property (as defined in the Escrow and Security Agreement) is released pursuant
to Sections 1.3(b) and (c) of the Escrow and Security Agreement, to finance,
among other things, the Acquisition.
"EUROCLEAR" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" means the Notes issued in the Exchange Offer pursuant
to Section 2.06(f) hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in
the Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture, until such amounts are repaid.
"FAIR MARKET VALUE" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party. In the case of a transaction exceeding $10.0
million, Fair Market Value will be determined in good faith by the Board of
Directors of the Company (unless otherwise provided in this Indenture).
8
"FIXED CHARGE COVERAGE RATIO" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Restricted Subsidiaries incurs,
assumes, guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings) or
issues, repurchases or redeems preferred stock subsequent to the commencement of
the period for which the Fixed Charge Coverage Ratio is being calculated and on
or prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "CALCULATION DATE"), then the Fixed Charge
Coverage Ratio will be calculated giving pro forma effect to such incurrence,
assumption, guarantee, repayment, repurchase, redemption, defeasance or other
discharge of Indebtedness, or such issuance, repurchase or redemption of
preferred stock, and the use of the proceeds therefrom, as if the same had
occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers,
amalgamations or consolidations, or any Person or any of its Restricted
Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including any related financing transactions and
including increases in ownership of Restricted Subsidiaries, during the
four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date will be given pro forma effect
(in accordance with Regulation S-X under the Securities Act) as if they
had occurred on the first day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded;
(3) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the
specified Person or any of its Restricted Subsidiaries following the
Calculation Date;
(4) any Person that is a Restricted Subsidiary on the
Calculation Date will be deemed to have been a Restricted Subsidiary at
all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness will be calculated as if the rate
in effect on the Calculation Date had been the applicable rate for the
entire period (taking into account any Hedging Obligation applicable to
such Indebtedness if such Hedging Obligation has a remaining term as at
the Calculation Date in excess of 12 months).
"FIXED CHARGES" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance
9
costs and original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations in respect of
interest rates; PLUS
(2) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period; PLUS
(3) any interest on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries or
secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such guarantee or Lien is called upon;
PLUS
(4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted
Subsidiary of the Company, TIMES (b) a fraction, the numerator of which
is one and the denominator of which is one minus the then current
combined federal, state, provincial and local statutory tax rate of
such Person, expressed as a decimal, in each case, determined on a
consolidated basis in accordance with GAAP.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in Canada from time to time.
"GLOBAL NOTE LEGEND" means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"GUARANTEE" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
"GUARANTORS" means each of:
(1) RFP Power Ltd. and RFP Timber Ltd.; and
(2) any other Subsidiary of the Company that executes a
supplemental indenture in accordance with the provisions of this
Indenture,
10
and their respective successors and assigns, in each case, until the
unconditional guarantee of the Company's Obligations under the Notes and this
Indenture has been released in accordance with the provisions of this Indenture
or the supplemental indenture, as the case may be.
"HEDGING OBLIGATIONS" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates or commodity
prices.
"HOLDER" means a Person in whose name a Note is registered.
"IAI GLOBAL NOTE" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors.
"IMMATERIAL SUBSIDIARY" means, as of any date, any Restricted
Subsidiary whose total assets, as of that date, are less than $250,000 and whose
total revenues for the most recent 12-month period for which financial
statements are available do not exceed $250,000; PROVIDED that a Restricted
Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly
or indirectly, guarantees or otherwise provides direct credit support for any
Indebtedness of the Company.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable
Debt in respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months
after such property is acquired or such services are completed, except
any such balance that constitutes an accrued expense or trade payable;
or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of
credit, Attributable Debt and Hedging Obligations) would appear as a liability
upon a balance sheet of the specified Person prepared in accordance with GAAP.
In addition, the term "Indebtedness" includes all Indebtedness of others secured
11
by a Lien on any asset of the specified Person (whether or not such Indebtedness
is assumed by the specified Person) and, to the extent not otherwise included,
the guarantee by the specified Person of any Indebtedness of any other Person.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"INITIAL NOTES" means the first US$150,000,000 aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"INITIAL PURCHASERS" means Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx
Corp. and HSBC Securities (USA) Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"INVESTMENTS" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company will be deemed to have made an Investment
on the date of any such sale or disposition equal to the Fair Market Value of
the Company's Investments in such Subsidiary that were not sold or disposed of
in an amount determined as provided in the final paragraph of Section 4.07
hereof. The acquisition by the Company or any Subsidiary of the Company of a
Person that holds an Investment in a third Person will be deemed to be an
Investment by the Company or such Subsidiary in such third Person in an amount
equal to the Fair Market Value of the Investments held by the acquired Person in
such third Person in an amount determined as provided in the final paragraph of
Section 4.07 hereof. Except as otherwise provided in this Indenture, the amount
of an Investment will be determined at the time the Investment is made and
without giving effect to subsequent changes in value.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or
12
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.
"LIGNUM" means Lignum Limited, a corporation incorporated under the
laws of the Province of British Columbia, Canada.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"NET INCOME" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection
with:
(a) any Asset Sale; or
(b) the disposition of any securities by such Person
or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries;
(2) any extraordinary item, together with any related
provision for taxes on such extraordinary item; and
(3) any unrealized foreign exchange gain (loss) on long-term
debt.
"NET PROCEEDS" means the aggregate cash proceeds or Cash Equivalents
received by the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale), net
of the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness, other than
Indebtedness under a Credit Facility, secured by a Lien on the asset or assets
that were the subject of such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice,
lapse of time or both any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its Stated Maturity; and
13
(3) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of the Company
or any of its Restricted Subsidiaries, subject to customary exceptions
for environmental, title, fraud and similar matters.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTE GUARANTEE" means the guarantee by each Guarantor of the Company's
obligations under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture.
"NOTES" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFERING MEMORANDUM" means the Company's offering memorandum, dated
February 17, 2003, related to the issuance and sale of the Initial Notes.
"OFFICER" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, or any Vice President, that meets the requirements of
Section 12.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"PERMITTED BUSINESS" means any business conducted by the Company and
its Restricted Subsidiaries on the date of this Indenture and any business
reasonably related, ancillary or complimentary to, or reasonable extensions of,
the business of the Company or any of its Restricted Subsidiaries on the date of
this Indenture.
"PERMITTED HOLDERS" means any one or more of Xxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxxx, any person related to either Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxx by
blood, adoption or marriage, trustees of a trust solely for the benefit of any
one or more of the foregoing persons, and any corporation over which any one or
more of the foregoing persons has Control.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Company or in a Restricted
Subsidiary of the Company;
14
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of
the Company; or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;
(5) any acquisition of assets or Capital Stock solely in
exchange for the issuance of Equity Interests (other than Disqualified
Stock) of the Company;
(6) any Investments received in compromise or resolution of
(A) obligations of trade creditors or customers that were incurred in
the ordinary course of business of the Company or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (B) litigation, arbitration or other disputes
with Persons who are not Affiliates;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to employees made in the ordinary course
of business of the Company or any Restricted Subsidiary of the Company
in an aggregate principal amount not to exceed $2.0 million at any one
time outstanding;
(9) repurchases of the Notes;
(10) guarantees of Indebtedness of the Company or any of its
Restricted Subsidiaries issued in accordance with Section 4.09 hereof;
and
(11) other Investments in any Person having an aggregate Fair
Market Value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (11)
that are at the time outstanding not to exceed $20.0 million.
"PERMITTED LIENS" means:
(1) Liens on inventory, accounts receivable, bank accounts or
other cash balances and insurance of the Company or any Guarantor
securing Indebtedness and other Obligations under Credit Facilities
and/or securing Hedging Obligations related thereto;
(2) Liens in favor of the Company or the Guarantors;
(3) Liens on property of a Person existing at the time such
Person is merged or amalgamated with or into or consolidated with the
Company or any Subsidiary of the Company; PROVIDED that such Liens were
in existence prior to the contemplation of such merger,
15
amalgamation or consolidation and do not extend to any assets other
than those of the Person merged or amalgamated into or consolidated
with the Company or the Subsidiary;
(4) Liens on property (including Capital Stock) existing at
the time of acquisition of the property by the Company or any
Subsidiary of the Company; PROVIDED that such Liens were in existence
prior to, such acquisition, and not incurred in contemplation of, such
acquisition;
(5) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business;
(6) Liens to secure Indebtedness permitted by clause (4) of
Section 4.09(b) hereof covering only the assets acquired with or
financed by such Indebtedness;
(7) Liens existing on the date of this Indenture or arising
from contractual commitments existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded; PROVIDED that any reserve or other appropriate provision as
is required in conformity with GAAP has been made therefor;
(9) Liens created for the benefit of (or to secure) the Notes
or the Note Guarantees;
(10) Liens securing Hedging Obligations permitted under this
Indenture;
(11) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; PROVIDED, HOWEVER, that:
(a) the new Lien shall be limited to all or part of
the same property and assets that secured or, under the written
agreements pursuant to which the original Lien arose, could secure the
original Lien (plus improvements and accessions to, such property or
proceeds or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not
increased to any amount greater than the sum of (x) the outstanding
principal amount, or, if greater, committed amount, of the Permitted
Referencing Indebtedness and (y) an amount necessary to pay any fees
and expenses, including premiums, related to such renewal, refunding,
refinancing, replacement, defeasance or discharge;
(12) Liens in connection with sale and leaseback transactions;
and
(13) Liens incurred in the ordinary course of business of the
Company or any Subsidiary of the Company with respect to obligations
that do not exceed $30.0 million at any one time outstanding.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to renew, refund, refinance, replace, defease or
discharge other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); PROVIDED that:
16
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness renewed,
refunded, refinanced, replaced, defeased or discharged (plus all
accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness is subordinated in
right of payment to, the Notes on terms at least as favorable to the
Holders as those contained in the documentation governing the
Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged; and
(4) such Indebtedness is incurred either by the Company or by
the Restricted Subsidiary who is the obligor on the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of February
17, 2004, among the Company, the Guarantors and the Initial Purchasers, relating
to the purchase and sale of the Initial Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of February 25, 2004, among the Company, the Guarantors and
the Initial Purchasers, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or
more registration rights agreements among the Company and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Company to the purchasers of Additional
Notes to register such Additional Notes under the Securities Act.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of
Regulation S.
"RELATED PARTY" means:
17
(1) any controlling stockholder, 80% (or more) owned
Subsidiary, or immediate (including by blood, adoption or marriage)
family member (in the case of an individual) of any Permitted Holder;
or
(2) any trust, corporation, partnership, limited liability
company or other entity, the beneficiaries, stockholders, partners,
members, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of any one or more Permitted
Holders and/or such other Persons referred to in the immediately
preceding clause (1).
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means any
officer within the Corporate Trust Services of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"SPECIAL INTEREST" means all special interest then owing pursuant to
the Registration Rights Agreement.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, and will not include any
18
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders' agreement
that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of
that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15
X.X.X.xx.xx. 77aaa-77bbbb).
"TSX" means the Toronto Stock Exchange.
"TRUSTEE" means Xxxxx Fargo Bank, National Association until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"UNRESTRICTED DEFINITIVE NOTE" means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a Global Note that does not bear and
is not required to bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors, but only to the
extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party
to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of
the Company;
(3) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries.
19
"U.S. PERSON" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"VOTING STOCK" of any specified Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; BY
(2) the then outstanding principal amount of such
Indebtedness.
Section 1.02 OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- -------
"ADDITIONAL AMOUNTS".................................... 4.21
"AFFILIATE TRANSACTION"................................. 4.11
"ASSET SALE OFFER"...................................... 3.09
"AUTHENTICATION ORDER".................................. 2.02
"AUTHORIZED AGENT"...................................... 12.14
"CHANGE OF CONTROL OFFER"............................... 4.15
"CHANGE OF CONTROL PAYMENT"............................. 4.15
"CHANGE OF CONTROL PAYMENT DATE"........................ 4.15
"COVENANT DEFEASANCE"................................... 8.03
"DTC"................................................... 2.03
"EVENT OF DEFAULT"...................................... 6.01
"EXCESS PROCEEDS"....................................... 4.10
"EXCLUDED HOLDER"....................................... 4.21
"INCUR"................................................. 4.09
"LEGAL DEFEASANCE"...................................... 8.02
"OFFER AMOUNT".......................................... 3.09
"OFFER PERIOD".......................................... 3.09
"PAYING AGENT".......................................... 2.03
"PAYMENT DEFAULT" ...................................... 6.01
"PERMITTED DEBT"........................................ 4.09
"PURCHASE DATE"......................................... 3.09
"REGISTRAR"............................................. 2.03
"RELATED JUDGMENT"...................................... 12.14
"RELATED PROCEEDINGS"................................... 12.14
"RELEVANT TAXING JURISDICTION".......................... 4.21
"RESTRICTED PAYMENTS"................................... 4.07
"SPECIAL MANDATORY REDEMPTION".......................... 3.08
"SPECIFIED COURTS"...................................... 12.14
"TAXES"................................................. 4.21
20
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes and the Note Guarantees means the Company and
the Guarantors, respectively, and any successor obligor upon the Notes and the
Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by the TIA reference to another statute or defined by the SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP and unless otherwise specified,
all accounting matters will be determined in accordance with GAAP
consistently applied;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
and
(7) references to sections of or rules under the Securities
Act will be deemed to include substitute, replacement and successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of authentication
will be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock
21
exchange rule or usage. Each Note will be dated the date of its authentication.
The Notes shall be in denominations of US$1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(b) GLOBAL NOTES. Notes issued in global form will be substantially in
the form of Exhibit A hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form will be substantially in the form of Exhibit A hereto
(but without the Global Note Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Each Global Note
will represent such of the outstanding Notes as will be specified therein and
each shall provide that it represents the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby will be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream will be applicable to transfers
of beneficial interests in the Regulation S Global Note that are held by
Participants through Euroclear or Clearstream.
Section 2.02 EXECUTION AND AUTHENTICATION.
One Officer must sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed
by one Officer (an "AUTHENTICATION ORDER"), authenticate Notes for original
issue that may be validly issued under this Indenture, including any Additional
Notes. The aggregate principal amount of Notes outstanding at any time may not
exceed the aggregate principal amount of Notes authorized for issuance by the
Company pursuant to one or more Authentication Orders, except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders, the
Company or an Affiliate of the Company.
Section 2.03 REGISTRAR AND PAYING AGENT.
22
The Company will maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar will keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company will notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture; PROVIDED that the Company may change any Agent without prior notice
to the Holders. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company will require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Special Interest, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) will have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee will serve as Paying Agent for the Notes.
Section 2.05 HOLDER LISTS.
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company will furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders and the
Company shall otherwise comply with TIA ss. 312(a).
Section 2.06 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
23
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice
from the Depositary;
(2) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; or
(3) there has occurred and is continuing a Default or Event of
Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (1), (2) or (3)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Definitive Notes
delivered in exchange for any Global Note or beneficial interests in Global
Notes will be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depositary (in accordance with its customary
procedures) and will bear the Private Placement Legend unless such legend is not
required by applicable law.
Every Note authenticated and delivered in exchange for, or in lieu of,
a Global Note or any portion thereof, pursuant to this Section 2.06 or Section
2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and
shall be, a Global Note. A Global Note may not be exchanged for another Note
other than as provided in this Section 2.06(a), however, beneficial interests in
a Global Note may be transferred and exchanged as provided in Section 2.06(b),
(c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES.
The transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend.
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(1).
(2) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the
Registrar either:
(A) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an
amount equal to the beneficial interest to be
transferred or exchanged; and
24
(ii) instructions given in accordance with
the Applicable Procedures containing information
regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to
be transferred or exchanged; and
(ii) instructions given by the Depositary to
the Registrar containing information regarding the
Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange
referred to in (1) above;
Upon consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form
of a beneficial interest in the IAI Global Note, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(4) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN AN UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a
25
transfer, certifies in the applicable Letter of Transmittal that it is
not (i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE NOTES.
(1) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
26
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D)
above, a certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates and Opinion
of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144) of
the Company;
27
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(2) hereof, the Trustee will cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee
will authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(3) will be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest requests through instructions to the Registrar from
or through the Depositary and the Participant or Indirect Participant.
The Trustee will deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(3)
will not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS.
(1) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
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(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI
Global Note.
(2) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
29
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has not
yet been issued, the Company will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee will authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar will register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
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(1) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on
31
transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with
the Securities Act.
(3) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are
not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes
accepted for exchange in the Exchange Offer by Persons that certify in
the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) LEGENDS. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON AN EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A
32
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 UNDER
THE SECURITIES ACT, (c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501 (a) (1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION
OF COUNSEL ACCEPTABLE TO RIVERSIDE FOREST PRODUCTS LIMITED THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF RIVERSIDE FOREST PRODUCTS LIMITED SO REQUESTS),
(2) TO RIVERSIDE FOREST PRODUCTS LIMITED (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE. UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THE SECURITIES SHALL NOT TRADE THE SECURITIES IN
CANADA BEFORE JUNE 26, 2004."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) will not bear the Private Placement
Legend.
(2) GLOBAL NOTE LEGEND. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF RIVERSIDE FOREST PRODUCTS LIMITED.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS
AGENT FOR
33
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(1) To permit registrations of transfers and exchanges, the
Company will execute and the Trustee will authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order in accordance
with Section 2.02 hereof or at the Registrar's request.
(2) No service charge will be charged to a Holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15
and 9.05 hereof).
(3) The Registrar will not be required to register the
transfer of or exchange of any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture,
as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close
of business on the day of selection;
34
(B) to register the transfer of or to exchange any
Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment
date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the Trustee, upon receipt of an
Authentication Order, will authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it or at its direction, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note; however, Notes held by the
Company or a Subsidiary of the Company shall not be deemed to be outstanding for
purposes of Section 3.07(a) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
35
Section 2.09 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned will be so disregarded.
Section 2.10 TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of
this Indenture.
Section 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange, payment,
replacement or cancellation. The Trustee, or at the direction of the Trustee,
the Registrar or the Paying Agent, and no one else will cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and will destroy canceled Notes (subject to the record retention
requirement of the Exchange Act). Certification of the destruction of all
canceled Notes will be delivered to the Company. The Company may not issue new
Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it will
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; PROVIDED that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) will mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13 ISSUANCE OF ADDITIONAL NOTES.
The Company will be entitled, upon delivery of an Officers'
Certificate, Opinion of Counsel and Authentication Order, subject to its
compliance with Section 4.09 hereof, to issue Additional Notes under this
Indenture which will have identical terms as the Initial Notes issued on the
date of this Indenture, other than with respect to the date of issuance and
issue price.
36
With respect to any Additional Notes, the Company will set forth in a
resolution of its Board of Directors and an Officers' Certificate, a copy of
each of which shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of
such Additional Notes; and
(3) whether such Additional Notes shall be transfer restricted
Notes and issued in the form of Initial Notes as set forth in Section
2.02 of this Indenture or shall be issued in the form of Exchange
Notes.
Section 2.14 RIGHT TO EXCHANGE.
Holders of Notes shall have the right to exchange their Notes for
Exchange Notes pursuant to the Exchange Offer subject to the terms and
conditions set forth in the Registration Rights Agreement.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof or is required to redeem Notes
pursuant to the special mandatory or special optional redemption provisions of
Section 3.08 hereof, it must furnish to the Trustee, at least 10 days (or five
days in the case of a special mandatory or special optional redemption pursuant
to Section 3.08 hereof) but not more than 60 days before a redemption date, an
Officers' Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee will select Notes for redemption or
purchase on a PRO RATA basis except:
(1) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(2) if otherwise required by law.
In the event of partial redemption, the particular Notes to be redeemed
will be selected, unless otherwise provided herein, not less than 10 nor more
than 60 days prior to the redemption or purchase date by the Trustee from the
outstanding Notes not previously called for redemption or purchase.
37
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of US$1,000
or whole multiples of US$1,000; except that if all of the Notes of a Holder are
to be redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section 3.03 NOTICE OF REDEMPTION.
Subject to the provisions of Sections 3.07, 3.08 and 3.09 hereof, at
least 10 days (or five days in the case of a special mandatory or special
optional redemption pursuant to Section 3.08 hereof) but not more than 60 days
before a redemption date, the Company will mail or cause to be mailed, by first
class mail, a notice of redemption to each Holder whose Notes are to be redeemed
at its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection
with a defeasance of the Notes or a satisfaction and discharge of this Indenture
pursuant to Articles 8 or 11 hereof.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee will give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company has delivered to the Trustee, at least 45 days prior to the redemption
date or such shorter period as agreed to by the Trustee, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
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Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
Prior to 10:00 a.m. Eastern Time on the redemption or purchase date,
the Company will deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued interest and
Special Interest, if any, on all Notes to be redeemed or purchased on that date.
The Trustee or the Paying Agent will promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption or purchase price of, and accrued
interest and Special Interest, if any, on, all Notes to be redeemed or
purchased.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption or purchase date, interest will cease to accrue on
the Notes or the portions of Notes called for redemption or purchase. If a Note
is redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption or purchase is
not so paid upon surrender for redemption or purchase because of the failure of
the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06 NOTES REDEEMED OR PURCHASED IN PART.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 OPTIONAL REDEMPTION.
(a) At any time prior to March 1, 2007, the Company may on any one or
more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price of 107.875% of the principal
amount, plus accrued and unpaid interest and Special Interest, if any, to the
redemption date, with the net cash proceeds of one or more Equity Offerings;
PROVIDED that:
(1) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the
closing of such Equity Offering.
(b) Except pursuant to Sections 3.07(a), 3.08 and 3.10 hereof, the
Notes will not be redeemable at the Company's option prior to March 1, 2009.
(c) On or after March 1, 2009, the Company may redeem all or a part of
the Notes upon not less than 10 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal
39
amount) set forth below plus accrued and unpaid interest and Special Interest,
if any, on the Notes redeemed to the applicable redemption date, if redeemed
during the twelve-month period beginning on March 1 of the years indicated
below, subject to the rights of Holders on the relevant record date to receive
interest on the relevant interest payment date:
YEAR PERCENTAGE
---- ----------
2009........................................... 103.938%
2010........................................... 102.625%
2011........................................... 101.313%
2012 and thereafter............................ 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 SPECIAL MANDATORY AND SPECIAL OPTIONAL REDEMPTION.
(a) Except as provided in Section 3.08(b) hereof, the Company is not
required to make mandatory redemption or sinking fund payments with respect to
the Notes.
(b) In the event that the conditions contained in Section 1.3(b) of the
Escrow and Security Agreement have not been satisfied on or prior to May 25,
2004, the Escrow Property will be released to the Paying Agent, in accordance
with Section 1.3(d) of the Escrow and Security Agreement, and using the Escrow
Property (as defined in the Escrow and Security Agreement) thereby released, the
Paying Agent will redeem (a "SPECIAL MANDATORY REDEMPTION"), on May 25, 2004,
all but not less than all of the Notes then outstanding at a redemption price
equal to 100% of the principal amount of the Notes, plus accrued and unpaid
interest to and including the date of redemption, upon no less than five
Business Days' prior written notice by first class mail to the Trustee, the
Escrow Agent and each Holder. Notwithstanding the foregoing, this Section
3.08(b) shall be null and void if the Company effects a special optional
redemption pursuant to Section 3.08(c) hereof.
(c) In the event that at any time the Company determines that the
conditions contained in Section 1.3(b) of the Escrow and Security Agreement will
not be satisfied on or prior to May 25, 2004, the Company will be entitled to
release the Escrow Property to the Paying Agent in accordance with Section
1.3(e) of the Escrow and Security Agreement, and if the Company exercises this
option, using the Escrow Property thereby released, the Paying Agent will effect
a special optional redemption of all but not less than all of the Notes then
outstanding at a redemption price equal to 100% of the principal amount of the
Notes, plus accrued and unpaid interest to and including the date of redemption,
upon no less than five Business Days' prior written notice by first class mail
to the Trustee, the Escrow Agent and each Holder. Within one Business Day of
receipt of such notice by the Trustee, the Trustee will provide written notice
to the Escrow Agent that the Company has elected to effect a redemption pursuant
to this Section 3.08(c).
(d) Upon the release of the Escrow Proceeds pursuant to Sections 1.3(b)
and (c) of the Escrow and Security Agreement, the provisions of this Section
3.08 shall be null and void.
(e) Any redemption pursuant to this Section 3.08 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
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In the event that, pursuant to Section 4.10 hereof, the Company is
required to commence an offer to all Holders to purchase Notes (an "ASSET SALE
OFFER"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of
other Indebtedness that is equal in right of payment with the Notes containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer
will remain open for a period of not less than 20 Business Days and not more
than 30 Business Days following its commencement, except to the extent that a
longer period is required by applicable law (the "OFFER PERIOD"). No later than
three Business Days after the termination of the Offer Period (the "PURCHASE
DATE"), the Company will apply all Excess Proceeds (the "OFFER AMOUNT") to the
purchase of Notes and such other Indebtedness that is equal in right of payment
with the Notes tendered in response to the Asset Sale Offer (on a PRO RATA
basis, if applicable) unless less than the Offer Amount has been tendered, in
which case the Company will only apply such portion of the Offer Amount as is
equal to the aggregate principal amount of all Notes and such other Indebtedness
that is equal in right of payment with Notes tendered in response to the Asset
Sale Offer, to the purchase of such Notes and such other Indebtedness. Payment
for any Notes so purchased will be made in the same manner as interest payments
are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Special Interest, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice will contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset
Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for purchase will
continue to accrue interest and Special Interest, if any;
(4) that, unless the Company defaults in making such payment,
any Note accepted for purchase pursuant to the Asset Sale Offer will
cease to accrue interest after the Purchase Date;
(5) that Holders electing to have Notes purchased pursuant to
an Asset Sale Offer may elect to have such Notes purchased in integral
multiples of US$1,000 only;
(6) that Holders electing to have Notes purchased pursuant to
any Asset Sale Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" attached to the
Notes completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before the
Purchase Date;
(7) that Holders will be entitled to withdraw their election
if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the
41
principal amount of the Notes the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such
Note purchased;
(8) that, if the aggregate principal amount of Notes and other
Indebtedness that is equal in right of payment with the Notes
surrendered by Holders in connection with the Asset Sale Offer thereof
exceeds the Offer Amount, the Trustee will select the Notes and other
Indebtedness that is equal in right of payment with the Notes to be
purchased on a PRO RATA basis based on the principal amount of Notes
and such other Indebtedness that is equal in right of payment with the
Notes tendered (with such adjustments as may be deemed appropriate by
the Trustee so that only Notes in denominations of US$1,000, or
integral multiples thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer), which unpurchased portion must be equal to US$1,000 in
principal amount or an integral multiple thereof.
On or before the Purchase Date, the Company will, to the extent lawful,
accept for purchase, to the extent necessary on a PRO RATA basis, the principal
amount of Notes or portions thereof and the principal amount of other
Indebtedness that is equal in right of payment with the Notes containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with proceeds of sales of assets, in each case, tendered
and not withdrawn pursuant to the Asset Sale Offer, or if less than the Offer
Amount has been tendered, all Notes tendered and not withdrawn, and will deliver
or cause to be delivered to the Trustee the Notes properly accepted together
with an Officers' Certificate stating that such Notes or portions thereof were
accepted for purchase by the Company in accordance with the terms of this
Section 3.09. The Company, the Depositary or the Paying Agent, as the case may
be, will promptly (but in any case not later than five days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by the Company for
purchase, and to the extent applicable, the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company, will authenticate
and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly announce the
results of the Asset Sale Offer on or as soon as practicable after the Purchase
Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.10 REDEMPTION FOR CHANGES IN CANADIAN WITHHOLDING TAXES.
The Company may redeem all, but not less than all, of the Notes at any
time at 100% of the aggregate principal amount of the Notes, plus accrued and
unpaid interest and Special Interest, if any, on the Notes redeemed to the
applicable redemption date, if the Company has become or would become obligated
to pay, on the next date on which any amount would be payable with respect to
the Notes, any Additional Amounts as a result of a change in the laws or
treaties (including any regulations promulgated thereunder) of Canada (or any
political subdivision or taxing authority thereof or therein), or any change in
any official position regarding the application or interpretation of such laws,
treaties or regulations, which change is, or has been, publicly announced or
becomes, or has become, effective on or after the date of the Offering
Memorandum.
ARTICLE 4
COVENANTS
42
Section 4.01 PAYMENT OF NOTES.
The Company will pay or cause to be paid the principal of, premium, if
any, and interest and Special Interest, if any, on, the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any, and interest
and Special Interest, if any, will be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company will pay all
Special Interest, if any, in the same manner on the dates and in the amounts set
forth in the Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
at the rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; it will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Special Interest, if any (without regard to any applicable grace
period) at the same rate to the extent lawful.
Section 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission will in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03
hereof.
Section 4.03 REPORTS.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company will furnish to the Holders or
cause the Trustee to furnish to the Holders, within the time periods specified
in the SEC's rules and regulations:
(1) (a) all annual financial information that would be
required to be contained in a filing with the SEC on Form 20-F or 40-F,
as applicable (or any successor forms), containing the information
required therein (or required in such successor form); and
(b) for the first three quarters of each year, all
quarterly financial information that would be required to be contained
in a filing with the SEC on Form 6-K (or any successor form)
43
that, regardless of applicable requirements shall, at a minimum,
contain the information that would be required to be provided in
quarterly reports under the laws of British Columbia to securityholders
of a company with securities listed on the TSX, whether or not the
Company has any of its securities so listed, in each case including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual information
only, a report on the annual financial statements by the Company's
certified independent accountants; and
(2) all current reports that would otherwise be required to be
filed with the SEC on Form 6-K if the Company were required to file
such reports.
In addition, following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, the Company will file a copy
of each of the reports referred to in clauses (1) and (2) above with the SEC for
public availability within the time periods specified in the rules and
regulations applicable to such reports (unless the SEC will not accept such a
filing) and will post the reports on its website within those time periods. The
Company will at all times comply with TIA ss. 314(a).
If, at any time after consummation of the Exchange Offer contemplated
by the Registration Rights Agreement, the Company is no longer subject to the
periodic reporting requirements of the Exchange Act for any reason, the Company
will nevertheless continue filing the reports specified in the preceding
paragraph with the SEC for public availability within the time periods specified
above unless the SEC will not accept such a filing. The Company will not take
any action for the purpose of causing the SEC not to accept any such filings.
If, notwithstanding the foregoing, the SEC will not accept the Company's filings
for any reason, the Company will post the financial information and information
referred to in the preceding paragraphs on its website within the time periods
that would apply if the Company were required to file those reports with the
SEC.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by Section 4.03(a) hereof will include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in Management's Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of operations of
the Company and its Restricted Subsidiaries excluding the financial condition
and results of operations of the Unrestricted Subsidiaries of the Company.
(c) The Company and the Guarantors agree that, until consummation of
the Exchange Offer contemplated by the Registration Rights Agreement, if at any
time they are not required to file with the SEC the reports required by the
preceding paragraphs, they will furnish to the Holders and to prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
Section 4.04 COMPLIANCE CERTIFICATE.
(a) The Company and each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officer with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default has occurred, describing all such Defaults or Events of
44
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Company will
promptly deliver to the Trustee, forthwith upon any Officer becoming aware of
any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05 TAXES.
The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
Section 4.06 STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07 RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger, amalgamation or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the
direct or indirect holders of the Company's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the
45
Company and other than dividends or distributions payable to the
Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger,
amalgamation or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the
Company;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company or any Guarantor that is contractually
subordinated to the Notes or to any Note Guarantee (excluding any
intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries), except a payment of interest or principal at
the Stated Maturity thereof; or
(4) make any Restricted Investment (all such payments and
other actions set forth in these clauses (1) through (4) above being
collectively referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such
Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section
4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries since the date of this Indenture (excluding
Restricted Payments permitted by clauses (2), (3), (4), (6) and (7) of
the next succeeding paragraph), is less than the sum, without
duplication, of:
(A) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the
beginning of the first fiscal quarter during which this
Indenture is dated to the end of the Company's most recently
ended fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit,
less 100% of such deficit); PLUS
(B) 100% of the aggregate net cash proceeds received
by the Company since the date of this Indenture as a
contribution to its common equity capital or from the issue or
sale of Equity Interests of the Company (other than
Disqualified Stock) or from the issue or sale of convertible
or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other
than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Company); PLUS
(C) to the extent that any Restricted Investment that
was made after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash, the greater of (i)
the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (ii) the
initial amount of such Restricted Investment; PLUS
46
(D) to the extent that any Unrestricted Subsidiary of
the Company is designated as such after the date of this
Indenture and is redesignated as a Restricted Subsidiary after
the date of this Indenture, the greater of (i) the Fair Market
Value of the Company's Investment in such Subsidiary as of the
date of such redesignation or (ii) such Fair Market Value as
of the date on which such Subsidiary was originally designated
as an Unrestricted Subsidiary after the date of this
Indenture; PLUS
(E) 50% of any dividends received by the Company or a
Restricted Subsidiary of the Company after the date of this
Indenture from an Unrestricted Subsidiary of the Company, to
the extent that such dividends were not otherwise included in
the Consolidated Net Income of the Company for such period.
(b) So long as no Default has occurred and is continuing or would be
caused thereby, the provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend or distribution or the
consummation of any irrevocable redemption within 60 days after the
date of declaration of the dividend or distribution or giving of the
redemption notice, as the case may be, if at the date of declaration,
distribution or notice, the dividend, distribution or redemption
payment would have complied with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or
out of the net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of, Equity Interests of the
Company (other than Disqualified Stock) or from the substantially
concurrent contribution of common equity capital to the Company;
PROVIDED that the amount of any such net cash proceeds that are
utilized for any such Restricted Payment will be excluded from clause
(3)(b) of the preceding paragraph;
(3) the repurchase, repayment, prepayment, redemption,
defeasance or other acquisition or retirement for value of Indebtedness
of the Company or any Guarantor that is contractually subordinated to
the Notes or to any Note Guarantee with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing
Indebtedness;
(4) the payment of any dividend (or, in the case of any
partnership or limited liability company, any similar distribution) by
a Restricted Subsidiary of the Company to the holders of its Equity
Interests on a PRO RATA basis;
(5) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any current or former
officer, director or employee of the Company or any of its Restricted
Subsidiaries pursuant to any equity subscription agreement, stock
option agreement, shareholders' agreement or similar agreement;
PROVIDED that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests may not exceed $1.0
million in any 12-month period;
(6) the repurchase of Equity Interests deemed to occur upon
the exercise of stock options to the extent such Equity Interests
represent a portion of the exercise price of those stock options;
(7) the declaration and payment of regularly scheduled or
accrued dividends to holders of any class or series of Disqualified
Stock of the Company or any Restricted Subsidiary of the Company issued
on or after the date of this Indenture in accordance with the Fixed
Charge Coverage Ratio test described in Section 4.09 hereof;
47
(8) payments or distributions to dissenting stockholders
pursuant to applicable law pursuant to or in connection with a
consolidation, merger or transfer of assets that complies with the
provisions of this Indenture applicable to mergers, consolidations and
transfers of all or substantially all of the Company's and its
Restricted Subsidiaries' property or assets; and
(9) other Restricted Payments in an aggregate amount not to
exceed $10.0 million since the date of this Indenture.
The amount of all Restricted Payments (other than cash) will be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued
by this Section 4.07 will be determined in good faith (a) in the case of assets
or securities valued at $20.0 million or less, by a senior financial officer of
the Company set forth in a certificate delivered to the Trustee from such
officer, and (b) in the case of assets or securities valued at more than $20.0
million, by the Company's Board of Directors and set forth in an Officers'
Certificate delivered to the Trustee. The Board of Directors' determination must
be based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing in the United States or Canada if
the Fair Market Value exceeds $20.0 million.
Section 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries, or
with respect to any other interest or participation in, or measured by,
its profits, or pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to
the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit
Facilities as in effect on the date of this Indenture and any
amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings of those agreements; PROVIDED
that the amendments, restatements, modifications, renewals,
supplements, refundings, replacements or refinancings are not
materially more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those
agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees;
(3) applicable law, rule, regulation or order;
48
(4) any agreement or instrument governing Indebtedness or
Capital Stock of a Person acquired by, or merged, consolidated,
amalgamated or otherwise combined with or into the Company or any of
its Restricted Subsidiaries as in effect at the time of such
acquisition, merger, consolidation, amalgamation or other combination
(except to the extent such Indebtedness or Capital Stock was incurred
in connection with or in contemplation of such acquisition, merger,
consolidation, amalgamation or other combination), which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets
of the Person, so acquired; PROVIDED that, in the case of Indebtedness,
such Indebtedness was permitted by the terms of this Indenture to be
incurred;
(5) customary non-assignment provisions in contracts and
licenses entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the
ordinary course of business and Capital Lease Obligations that impose
restrictions on the property purchased or leased of the nature
described in clause (3) of Section 4.08(a) hereof;
(7) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending the sale or other disposition;
(8) Permitted Refinancing Indebtedness; PROVIDED that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as
a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(9) Liens permitted to be incurred under the provisions of
Section 4.12 hereof that limit the right of the debtor to dispose of
the assets subject to such Liens;
(10) provisions limiting the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar
agreements entered into with the approval of the Company's Board of
Directors, which limitation is applicable only to the assets that are
the subject of such agreements; and
(11) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
Section 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "INCUR") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
PROVIDED, HOWEVER, that the Company may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock and the Guarantors may issue Indebtedness
(including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock or
preferred stock is issued, as the case may be, would have been at least 2.0 to
1, determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred or the
Disqualified Stock or preferred stock had been issued, as the case may be, at
the beginning of such four-quarter period;
49
(b) The provisions of Section 4.09(a) hereof will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"PERMITTED DEBT"):
(1) the incurrence by the Company and any Guarantor of
Indebtedness and letters of credit under Credit Facilities in an
aggregate principal amount at any one time outstanding under this
clause (1) (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) not to exceed the greater of (x)
$60.0 million or (y) the amount of the Borrowing Base as of the date of
such incurrence;
(2) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the related Note Guarantees
to be issued on the date of this Indenture and the Exchange Notes and
the related Note Guarantees to be issued pursuant to the Registration
Rights Agreement;
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of design, construction, installation or improvement of
property, plant or equipment used in the business of the Company or any
of its Restricted Subsidiaries, in an aggregate principal amount,
including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (4), not to exceed 10% of the
Consolidated Net Tangible Assets of the Company and its Restricted
Subsidiaries at any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to renew, refund, refinance,
replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under
Section 4.09(a) hereof or clauses (2), (3), (4), (5) or (12) of this
Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that:
(A) if the Company or any Guarantor is the obligor on
such Indebtedness and the payee is not the Company or a
Guarantor, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations then due
with respect to the Notes, in the case of the Company, or the
Note Guarantee, in the case of a Guarantor; and
(B) (1) (i) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being
held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer
of any such Indebtedness to a Person that is not either the
Company or a Restricted Subsidiary of the Company, will be
deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as
the case may be, that was not permitted by this clause (6);
50
(7) the issuance by any of the Company's Restricted
Subsidiaries to the Company or to any of its Restricted Subsidiaries of
shares of preferred stock; PROVIDED, HOWEVER, that:
(A) any subsequent issuance or transfer of Equity
Interests that results in any such preferred stock being held
by a Person other than the Company or a Restricted Subsidiary
of the Company; and
(B) any sale or other transfer of any such preferred
stock to a Person that is not either the Company or a
Restricted Subsidiary of the Company,
will be deemed, in each case, to constitute an issuance of such
preferred stock by such Restricted Subsidiary that was not permitted by
this clause (7);
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this Section
4.09; PROVIDED that if the Indebtedness being guaranteed is
subordinated to or equal in right of payment with the Notes, then the
guarantee shall be subordinated or equal in right of payment, as
applicable, to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of workers' compensation
claims, self-insurance obligations, bankers' acceptances, performance
or surety bonds or other reimbursement obligations in the ordinary
course of business;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five Business Days; and
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (12), not to exceed $30.0 million.
The Company will not incur, and will not permit any Guarantor to incur,
any Indebtedness (including Permitted Debt) that is contractually subordinated
in right of payment to any other Indebtedness of the Company or such Guarantor
unless such Indebtedness is also contractually subordinated in right of payment
to the Notes and the applicable Note Guarantee on substantially identical terms;
PROVIDED, HOWEVER, that no Indebtedness will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company solely
by virtue of being unsecured or by virtue of being secured on a junior Lien
basis.
For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (12) above
or is entitled to be incurred pursuant to Section 4.09(a) hereof, the Company
will be permitted to classify such item of Indebtedness on the date of its
incurrence, or later reclassify all or a portion of such item of Indebtedness,
in any manner that complies with this Section
51
4.09, including by allocation to more than one other type of Indebtedness.
Indebtedness under Credit Facilities outstanding on the date on which Notes are
first issued and authenticated under this Indenture will initially be deemed to
have been incurred on such date in reliance on the exception provided by clause
(1) of the definition of Permitted Debt.
The accrual of interest, the accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the reclassification of preferred
stock as Indebtedness due to a change in accounting principles, and the payment
of dividends on Disqualified Stock in the form of additional shares of the same
class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09; PROVIDED, in each such case, that the amount of any such accrual,
accretion or payment is included in Fixed Charges of the Company as accrued.
Notwithstanding any other provision of this Section 4.09, the maximum
amount of Indebtedness that the Company or any Restricted Subsidiary may incur
pursuant to this Section 4.09 will not be deemed to be exceeded solely as a
result of fluctuations in exchange rates or currency values.
The amount of any Indebtedness outstanding as of any date will
be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of
any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a
Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date
of determination; and
(B) the amount of the Indebtedness of the other
Person.
Section 4.10 ASSET SALES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of the Asset Sale at least equal
to the Fair Market Value of the assets or Equity Interests issued or
sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of
cash. For purposes of this provision, each of the following will be
deemed to be cash:
(A) Cash Equivalents;
(B) any liabilities, as shown on the Company's most
recent consolidated balance sheet, of the Company or any
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes
or any Note Guarantee) that are assumed by the transferee of
any such assets pursuant to a customary novation agreement
that releases the Company or such Restricted Subsidiary from
further liability;
52
(C) any securities, Notes or other obligations
received by the Company or any such Restricted Subsidiary from
such transferee that are converted within 60 days by the
Company or such Restricted Subsidiary into cash or Cash
Equivalents, to the extent of the cash or Cash Equivalents
received in that conversion; and
(D) any stock or assets of the kind referred to in
clauses (2) or (4) of the next paragraph of this Section 4.10.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company (or the applicable Restricted Subsidiary, as the case may be)
may apply such Net Proceeds:
(1) to repay or prepay Indebtedness and other Obligations
under a Credit Facility;
(2) to acquire all or substantially all of the assets of, or
any Capital Stock of, a Permitted Business, if, after giving effect to
any such acquisition of Capital Stock, the Permitted Business is or
becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as current
assets under GAAP and that are used or useful in a Permitted Business.
Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the second paragraph of this Section 4.10 will constitute "EXCESS
PROCEEDS." When the aggregate amount of Excess Proceeds exceeds US$10.0 million,
within five days thereof, the Company will make an Asset Sale Offer to all
Holders and all holders of other Indebtedness that is equal in right of payment
with the Notes containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets in accordance with Section 3.09 hereof to purchase the maximum
principal amount of Notes and such other Indebtedness that is equal in right of
payment with the Notes that may be purchased out of the Excess Proceeds. The
offer price in any Asset Sale Offer will be equal to 100% of the principal
amount plus accrued and unpaid interest and Special Interest, if any, to the
date of purchase, and will be payable in cash. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use those Excess
Proceeds for any purpose not otherwise prohibited by this Indenture. If the
aggregate principal amount of Notes and other Indebtedness that is equal in
right of payment with the Notes tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and such other
Indebtedness that is equal in right of payment with the Notes to be purchased on
a PRO RATA basis. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds will be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
Section 3.09 hereof or this Section 4.10, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.09 hereof or this Section 4.10 by
virtue of such compliance.
Section 4.11 TRANSACTIONS WITH AFFILIATES.
53
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Company (each, an "AFFILIATE TRANSACTION"), unless:
(1) the Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a resolution of the
Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with this Section 4.11(a)(1) and that such Affiliate
Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the
Company; and
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $20.0 million, an opinion as to the
fairness to the Company or such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national
standing in the United States or Canada.
(b) The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any employment agreement, employee benefit plan, officer
or director indemnification agreement or any similar arrangement
entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary of the Company) that is an Affiliate of the Company solely
because the Company owns, directly or through a Restricted Subsidiary,
an Equity Interest in, or controls, such Person;
(4) payment of reasonable compensation or fees to directors
and officers of the Company and its Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified
Stock) of the Company to Affiliates of the Company;
(6) Restricted Payments that do not violate Section 4.07
hereof; and
(7) loans or advances to employees in the ordinary course of
business not to exceed $2.0 million in the aggregate at any one time
outstanding.
54
Section 4.12 LIENS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien of any kind securing Indebtedness on any asset now owned or
hereafter acquired, except Permitted Liens, unless all payments due under this
Indenture, the Notes and the Note Guarantees are secured on an equal and ratable
basis with the obligations so secured until such time as such obligations are no
longer secured by a Lien.
Section 4.13 BUSINESS ACTIVITIES.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted Businesses, except
to such extent as would not be material to the Compay and its Restricted
Subsidiaries taken as a whole.
Section 4.14 CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or
other existence of each of its Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from
time to time) of the Company or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; PROVIDED, HOWEVER, that
the Company shall not be required to preserve any such right, license
or franchise, or the corporate, partnership or other existence of any
of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.15 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company will make
an offer (a "CHANGE OF CONTROL OFFER") to each Holder to repurchase all or any
part (equal to US$1,000 or an integral multiple of US$1,000) of that Holder's
Notes at a purchase price, to be paid in cash, equal to 101% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid interest and
Special Interest, if any, on the Notes repurchased to the date of purchase,
subject to the rights of Holders on the relevant record date to receive interest
due on the relevant interest payment date (the "CHANGE OF CONTROL PAYMENT").
Within 10 days following any Change of Control, the Company will mail a notice
to each Holder describing the transaction or transactions that constitute the
Change of Control and stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Notes tendered will be accepted for
purchase;
(2) the Change of Control Payment and the purchase date, which
date shall be no earlier than 30 days and no later than 60 days from
the date such notice is mailed (the "CHANGE OF CONTROL PAYMENT DATE");
(3) that any Note not tendered into the Change of Control
Offer will continue to accrue interest and Special Interest, if any;
55
(4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for purchase pursuant to
the Change of Control Offer will cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have Notes purchased pursuant to
a Change of Control Offer may elect to have such Notes purchased in
integral multiples of US$1,000 only;
(6) that Holders electing to have Notes purchased pursuant to
a Change of Control Offer will be required to surrender the Notes, with
the form entitled "Option of Holder to Elect Purchase" attached to the
Notes completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before the
Change of Control Payment Date;
(7) that Holders will be entitled to withdraw their election
if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the close of business on the second Business
Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes the Holder delivered for purchase, and a
statement that such Holder is withdrawing his election to have such
Notes purchased; and
(8) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer), which unpurchased portion must be equal to US$1,000 in
principal amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable to the repurchase of the Notes
as a result of a Change in Control. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of Sections 3.09 and
4.15 hereof, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under
Sections 3.09 and 4.15 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, to the
extent lawful:
(1) accept for purchase all Notes or portions of Notes
properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
The Company, Depositary or the Paying Agent, as the case may be, will
promptly mail (but in any case not later than five days after the Change of
Control Payment Date) to each tendering Holder the Change of Control Payment for
such Notes, and to the extent applicable, the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company, will authenticate
and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Notes
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly announce the
56
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Section 4.15 and purchases all Notes properly tendered and not withdrawn under
the Change of Control Offer, or (2) notice of redemption has been given pursuant
to Section 3.07 hereof, unless and until there is a default in payment of the
applicable redemption price.
Section 4.16 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; PROVIDED that
the Company or any Restricted Subsidiary may enter into a sale and leaseback
transaction if:
(1) the Company or that Restricted Subsidiary, as applicable,
could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction under
the Fixed Charge Coverage Ratio test in Section 4.09(a) hereof;
(2) the transfer of assets in that sale and leaseback
transaction is permitted by, and the Company applies the proceeds of
such transaction in compliance with, Section 4.10 hereof.
Section 4.17 PAYMENTS FOR CONSENT.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to be paid and is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
Section 4.18 ADDITIONAL NOTE GUARANTEES.
If the Company or any of its Restricted Subsidiaries acquires or
creates another Restricted Subsidiary after the date of this Indenture, then the
Company will cause that newly acquired or created Restricted Subsidiary to
execute a supplemental indenture in form and substance satisfactory to the
Trustee and substantially in the form of Exhibit F attached hereto, pursuant to
which such Restricted Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Notes and this Indenture in accordance with the
terms set forth in this Indenture, and deliver an Opinion of Counsel to the
Trustee within 10 Business Days of the date on which it was acquired or created
to the effect that such supplemental indenture has been duly authorized,
executed and delivered by that Restricted Subsidiary and constitutes a valid and
binding agreement of that Restricted Subsidiary, enforceable in accordance with
its terms (subject to customary exceptions); PROVIDED that any Restricted
Subsidiary that constitutes an Immaterial Subsidiary need not become a Guarantor
until such time as it ceases to be an Immaterial Subsidiary.
Section 4.19 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is
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designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all
outstanding Investments owned by the Company and its Restricted Subsidiaries in
the Subsidiary designated as Unrestricted will be deemed to be an Investment
made as of the time of the designation and will reduce the amount available for
Restricted Payments under Section 4.07 hereof or under one or more clauses of
the definition of Permitted Investments, as determined by the Company. That
designation will only be permitted if the Investment would be permitted at that
time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. The Board of Directors of the Company may redesignate
any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of a resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company will be in
default of such Section. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the
Company; PROVIDED that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.
Section 4.20 CHANGES IN COVENANTS WHEN NOTES RATED INVESTMENT GRADE.
(a) If on any date following the date of this Indenture:
(1) the Notes are rated Baa3 or better by Xxxxx'x and BBB- or
better by S&P (or, if either such entity ceases to rate the Notes for
reasons outside of the control of the Company, the equivalent
investment grade credit rating from any other "nationally recognized
statistical rating organization" within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a
replacement agency); and
(2) no Default or Event of Default shall have occurred and be
continuing,
then, beginning on that day and subject to the provisions of Section 4.20(b)
hereof, the provisions of Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.15,
4.16, 4.17 and 4.19 hereof and clause (4) of Section 5.01(a) hereof shall be
suspended. During any period that the foregoing provisions have been suspended,
the Company's Board of Directors may not designate any of its Subsidiaries as
Unrestricted Subsidiaries pursuant to Section 4.19 or the second paragraph of
the definition of "Unrestricted Subsidiary."
(b) Notwithstanding the foregoing, if the rating assigned by either
such rating agency should subsequently decline to below Baa3 or BBB-,
respectively, the provisions of Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.13,
4.15, 4.16, 4.17 and 4.19 hereof and clause (4) of Section 5.01(a) hereof will
be reinstituted as of and from the date of such rating decline. Calculations
under the reinstated provisions of Section 4.07 hereof will be made as if the
provisions of Section 4.07 hereof had been in effect since the date of this
Indenture except that no default will be deemed to have occurred solely by
reason of a Restricted Payment made while that Section was suspended.
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Section 4.21 PAYMENT OF ADDITIONAL AMOUNTS.
(a) All payments made by the Company under or with respect to the
Notes, or by any Guarantor pursuant to the Note Guarantees, will be made free
and clear of and without withholding or deduction for or on account of any
present or future tax, duty, levy, impost, assessment or other governmental
charge including penalties, interest and other liabilities related thereto
(hereinafter, the "TAXES"), imposed or levied by or on behalf of (i) any taxing
authority within Canada or within any other taxing jurisdiction in which the
Company or any Guarantor is organized or resident for tax purposes, (ii) any
jurisdiction from or through which the Company or any Guarantor makes a payment
under, or with respect to, the Notes or the Note Guarantees or, (iii) any
political subdivision thereof or any taxing authority therein, as applicable
(each, a "RELEVANT TAXING JURISDICTION"), unless the Company or such Guarantor,
as the case may be, is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. If the Company or any Guarantor is
required to withhold or deduct any amount for or on account of Taxes from any
payment made under or with respect to the Notes or the Note Guarantees, the
Company or such Guarantor will:
(1) make such withholding or deduction;
(2) remit the full amount withheld or deducted to the Relevant
Taxing Jurisdiction in accordance with the applicable law;
(3) pay such additional amounts (the "ADDITIONAL AMOUNTS") as
may be necessary so that the net amount received by each Holder
(including Additional Amounts) after such withholding or deduction will
not be less than the amount such Holder would have received if such
Taxes had not been withheld or deducted;
(4) furnish the Holders of the Notes, within 30 days after the
date the payment of any Taxes is due pursuant to applicable law,
certified copies of tax receipts evidencing such payment by the Company
or such Guarantor;
(5) upon written request of a Holder (other than an Excluded
Holder), reimburse each such Holder for the amount of (x) any Taxes so
levied or imposed and paid by such Holder as a result of payments made
under or with respect to the Notes, and (y) any Taxes so levied or
imposed with respect to any reimbursement under the foregoing clause
(z) but excluding any such Taxes on such Holder's net income so that
the net amount received by such Holder (net of payments made under or
with respect to the Notes) after such reimbursement will not be less
than the net amount the Holder would have received if Taxes on such
reimbursement had not been imposed; and
(6) at least 30 days prior to each date on which any payment
under or with respect to the Notes is due and payable, if the Company
or any Guarantor will be obligated to pay Additional Amounts with
respect to such payment, deliver to the Trustee an Officers'
Certificate stating the fact that such Additional Amounts will be
payable and the amounts so payable and will set forth such other
information necessary to enable the Trustee to pay such Additional
Amounts to Holders on the payment date.
(b) Notwithstanding the foregoing, no Additional Amounts will be
payable with respect to a payment made to a Holder, or the beneficial owner of,
or a person ultimately entitled to obtain an interest in the Notes (an "EXCLUDED
HOLDER"):
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(1) which is subject to such Taxes by reason of its being
connected with the Relevant Taxing Jurisdiction otherwise than solely
by reason of the Holder's activity in connection with purchasing the
Notes, by the mere holding of Notes or by reason of the receipt of
payments thereunder;
(2) which failed to duly and timely comply with a timely
reasonable request (in writing) of the Company to provide information,
documents, certification or other evidence concerning such Holder's
nationality, residence, entitlement to treaty benefits, identity or
connection with the Relevant Taxing Jurisdiction, if and to the extent
that due and timely compliance with such request would have resulted in
the reduction or elimination of any Taxes as to which Additional
Amounts would have otherwise been payable to such Holder but for this
clause (2);
(3) which is a fiduciary, a partnership or not the beneficial
owner of any payment on a Note, if and to the extent that any
beneficiary or settlor of such fiduciary, any partner in such
partnership or the beneficial owner of such payment (as the case may
be) would not have been entitled to receive Additional Amounts with
respect to such payment if such beneficiary, settlor, partner or
beneficial owner had been the Holder of such Note, or
(4) any combination of the foregoing numbered clauses of this
provision.
Any reference in this Indenture, the Notes or the Note Guarantees to
the payment of principal, premium or Special Interest, if any, redemption price,
Change of Control Payment, purchase price, interest or any other amount payable
under or with respect to any Note, such mention will be deemed to include
mention of the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
The Company's obligation to make payments of Additional Amounts will survive any
termination of this Indenture, the Notes and the Note Guarantees or the
defeasance of any rights hereunder or thereunder.
ARTICLE 5
SUCCESSORS
Section 5.01 MERGER, CONSOLIDATION, AMALGAMATION OR SALE OF ASSETS.
(a) The Company will not, directly or indirectly: (1) consolidate,
merge or amalgamate with or into another Person (whether or not the Company is
the surviving corporation); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person, unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such
consolidation, merger or amalgamation (if other than the
Company) or to which such sale, assignment, transfer,
conveyance or other disposition has been made is a corporation
organized or existing under the laws of the United States, any
state of the United States or the District of Columbia or the
laws of Canada or any province or territory thereof;
(2) the Person formed by or surviving any such consolidation,
merger or amalgamation (if other than the Company) or the Person to
which such sale, assignment, transfer, conveyance or
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other disposition has been made assumes all the obligations of the
Company under the Notes, this Indenture and the Registration Rights
Agreement pursuant to agreements reasonably satisfactory to the
Trustee;
(3) immediately after such transaction, no Default or Event of
Default exists; and
(4) The Company or the Person formed by or surviving any such
consolidation, merger or amalgamation (if other than the Company), or
to which such sale, assignment, transfer, conveyance or other
disposition has been made would, on the date of such transaction after
giving pro forma effect thereto and any related financing transactions
as if the same had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth
in Section 4.09(a) hereof.
In addition, the Company will not, directly or indirectly, lease all or
substantially all of the properties and assets of it and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to any other
Person.
(b) This Section 5.01 will not apply to:
(1) a merger or amalgamation of the Company with an Affiliate
solely for the purpose of reincorporating the Company in another
jurisdiction; or
(2) any consolidation, merger or amalgamation, or any sale,
assignment, transfer, conveyance, lease or other disposition of assets
between or among the Company and one or more of its Restricted
Subsidiaries.
Section 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Company in a transaction that is subject to, and
that complies with the provisions of, Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor Person and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein;
PROVIDED, HOWEVER, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale of all of the Company's assets in a transaction that is subject to,
and that complies with the provisions of, Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
Each of the following is an "EVENT OF DEFAULT":
(1) default for 30 days in the payment when due of interest
on, or Special Interest, if any, with respect to, the Notes;
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(2) default in the payment when due (at maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on,
the Notes;
(3) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Sections 4.10, 4.15 or
5.01 hereof;
(4) failure by the Company or any of its Restricted
Subsidiaries to comply with any of the other agreements in this
Indenture for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class;
(5) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date of
this Indenture, if that default:
(A) is caused by a failure to pay principal of, or
interest or premium, if any, on, such Indebtedness prior to
the expiration of the grace period provided in such
Indebtedness on the date of such default (a "PAYMENT
DEFAULT"); or
(B) results in the acceleration of such Indebtedness
prior to its express maturity,
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$15.0 million or more;
(6) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments entered by a court or courts of
competent jurisdiction aggregating in excess of $15.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
(7) failure to comply with, or the breach of, any material
provision of the Escrow and Security Agreement, PROVIDED that the
invalidity of the Trustee's security interest in the assets contained
in the Escrow Property will automatically constitute an Event of
Default;
(8) failure to comply with the provisions of Section 3.08(b)
hereof;
(9) if on or prior to the 90th day after the date of this
Indenture, any one or more of the following has not occurred:
(a) the Acquisition has been consummated on
substantially the same terms described in the Offering Memorandum;
(b) Lignum and each of its Subsidiaries (other than
any Immaterial Subsidiaries), if any, has executed a supplemental
indenture, whereby they have fully and unconditionally guaranteed the
Notes;
(c) Lignum and each of its Subsidiaries (other than
any Immaterial Subsidiaries), if any, has become party to the Purchase
Agreement and the Registration Rights Agreement;
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(d) the Company's existing revolving credit
facilities have been repaid in full with Escrow Property and
terminated;
(e) the repayment in full (with Escrow Property) and
retirement of each of the Company's 8.64% Senior Notes due 2004, 8.86%
Senior Notes due 2004 and 8.80% Senior Notes due 2007 in a manner that
complies with the combined requirements of the Limited Waiver, dated as
of February 2, 2004, among the Company and the other parties thereto,
and Section 9.2 of the Amended and Restated Note Purchase Agreement,
originally dated as of May 24, 1996, and amended and restated as of May
27, 1999, among the Company and the other parties thereto.
(f) the Credit Agreement has been entered into by the
parties thereto on substantially the same terms described in the
Offering Memorandum;
(10) the Company or any of its Restricted Subsidiaries that is
a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become
due;
(11) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary in
an involuntary case;
(B) appoints a custodian for the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary or
for all or substantially all of the property of the Company or
any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant
Subsidiary; or
(C) orders the liquidation of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(12) except as permitted by this Indenture, any Note Guarantee
is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect,
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or any Guarantor, or any Person acting on behalf of any Guarantor,
denies or disaffirms its obligations under its Note Guarantee.
Section 6.02 ACCELERATION.
In the case of an Event of Default specified in clause (9), (10) or
(11) of Section 6.01 hereof, with respect to the Company, any Restricted
Subsidiary of the Company that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
immediately without further action or notice; PROVIDED that the Trustee shall
immediately deliver notice of such event to the Escrow Agent if the Escrow and
Security Agreement has not terminated pursuant to Section 3.8 thereof. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately; PROVIDED that upon such
declaration, the Trustee shall immediately deliver notice of such event to the
Escrow Agent if the Escrow and Security Agreement has not terminated pursuant to
Section 3.8 thereof.
Upon any such declaration, the Notes shall become due and payable
immediately.
If an Event of Default occurs on or after March 1, 2009 by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to March 1, 2009
by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable, to the extent permitted by law, in an amount, for each of the years
beginning on March 1 of the years set forth below, as set forth below (expressed
as a percentage of the principal amount of the Notes on the date of payment that
would otherwise be due but for the provisions of this sentence):
YEAR PERCENTAGE
---- ----------
2004.......................................... 7.8750%
2005.......................................... 7.0875%
2006.......................................... 6.3000%
2007.......................................... 5.5125%
2008.......................................... 4.7250%
Section 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium and Special
Interest, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
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Section 6.04 WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes, by notice to the Trustee, may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of the principal of, premium and Special Interest, if any, or
interest on, the Notes (including in connection with an offer to purchase);
PROVIDED, HOWEVER, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05 CONTROL BY MAJORITY.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with applicable law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders or
that may involve the Trustee in personal liability.
Section 6.06 LIMITATION ON SUITS.
Except to enforce the right to receive payment of principal, premium,
if any, or interest or Special Interest, if any, when due, a Holder may pursue a
remedy with respect to this Indenture or the Notes only if:
(1) such Holder has previously given the Trustee notice that
an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of
the then outstanding Notes have requested the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee security or indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60
days after the receipt of the request and the offer of security or
indemnity; and
(5) during such 60-day period, Holders of a majority in
aggregate principal amount of the then outstanding Notes have not given
the Trustee a direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Special Interest,
if any, and interest on the Note, on or after the respective due dates expressed
in the Note (including in connection with an offer to purchase), or to
65
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium and Special Interest, if any, and interest
remaining unpaid on, the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due to the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all reasonable
compensation, expenses, disbursements, and advances made by the Trustee
and the costs and expenses of collection;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium and Special Interest, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium and Special
Interest, if any and interest, respectively; and
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
Section 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
will exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee will not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
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(e) The Trustee will not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and will not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company will be sufficient if
signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee reasonable
indemnity or security against the losses, liabilities and expenses that might be
incurred by it in compliance with such request or direction.
Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and if so, the Trustee may deal with the Company or
any Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (if this Indenture has been qualified under
the TIA) or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee will not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
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Section 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee will mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium or Special
Interest, if any, or interest on, any Note, the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
will comply with TIA ss. 313(b)(2). The Trustee will also transmit by mail all
reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders
will be mailed by the Trustee to the Company and filed by the Trustee with the
SEC and each stock exchange on which the Notes are listed in accordance with TIA
ss. 313(d). The Company will promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.07 COMPENSATION AND INDEMNITY.
(a) The Company will pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation will not be limited by any law on compensation of a
trustee of an express trust. The Company will reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses will
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company and the Guarantors will indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company will not
relieve the Company or any of the Guarantors of their obligations hereunder. The
Company or such Guarantor will defend the claim and the Trustee will cooperate
in the defense. The Trustee may have separate counsel and the Company will pay
the reasonable fees and expenses of such counsel. Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
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(d) To secure the Company's and the Guarantors' payment obligations in
this Section 7.07, the Trustee will have a Lien prior to the Notes on all money
or property held or collected by the Trustee, except money or property held by
the Trustee in trust to pay principal and interest on particular Notes. Such
Lien will survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(9), (10) or (11) hereof occurs, the
expenses and the compensation for the services (including the reasonable fees
and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
(f) The Trustee will comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
Section 7.08 REPLACEMENT OF TRUSTEE.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of not
less than a majority in aggregate principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company will, subject to Section 7.10
hereof, promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in aggregate principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to the Holders. The retiring Trustee will promptly transfer all property held by
it as Trustee to the successor Trustee; PROVIDED all sums owing
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to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07(d) hereof. Notwithstanding replacement of the Trustee pursuant to
this Section 7.08, the Company's obligations under Section 7.07 hereof will
continue for the benefit of the retiring Trustee.
Section 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another entity, the
successor entity without any further act will be the successor Trustee.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions set
forth in Section 8.04 hereof are satisfied (hereinafter, "LEGAL DEFEASANCE").
For this purpose, Legal Defeasance means that the Company and the Guarantors
will be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes (including the Note Guarantees), which will thereafter
be deemed to be "outstanding" only for the purposes of Section 8.05 hereof and
the other Sections of this Indenture referred to in clauses (1) and (2) below,
and to have satisfied all of their other obligations under such Notes, the Note
Guarantees and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which will survive until otherwise terminated or
discharged hereunder:
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(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium and
Special Interest, if any, on, such Notes when such payments are due
from the trust referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's and the Guarantors' obligations in
connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.
Section 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19
and 4.20 hereof and clause (4) of Section 5.01(a) hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
hereof are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes will
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes will not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes and Note
Guarantees, the Company and the Guarantors may omit to comply with and will have
no liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document and such omission
to comply will not constitute a Default or an Event of Default under Section
6.01 hereof, but, except as specified above, the remainder of this Indenture and
such Notes and Note Guarantee will be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, Sections 6.01(3) through 6.01(8) inclusive and Section 6.01(12)
hereof will not constitute Events of Default.
Section 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, non-callable Government Securities, or a combination of cash
in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient, in the opinion of an investment bank, appraisal
firm or firm of independent public accountants of national standing in
the United States or Canada, to pay the principal of, or interest and
premium and Special Interest, if any, on, the outstanding Notes on the
Stated Maturity or on the applicable redemption date, as the case may
be, and the Company must specify whether the Notes are being defeased
to such Stated Maturity or to a particular redemption date;
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(2) in the case of an election under Section 8.02 hereof, the
Company must deliver to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that:
(A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or; or
(B) since the date of this Indenture, there has been
a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not
occurred;
(3) in the case of an election under Section 8.03 hereof, the
Company must deliver to the Trustee an Opinion of Counsel reasonably
acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(5) in the case of an election under Section 8.02 or 8.03, the
Company must deliver to the Trustee an Opinion of Counsel in Canada to
the effect that Holders of the outstanding Notes will not recognize
income, gain or loss for Canadian federal or provincial income tax or
other tax purposes as a result of such Legal Defeasance or Covenant
Defeasance, as applicable, and will be subject to Canadian federal or
provincial income tax and other tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance or Covenant Defeasance, as applicable, had not occurred
(which condition may not be waived by any Holder or the Trustee);
(6) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(7) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
any creditors of the Company or others; and
(8) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
Section 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
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Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"TRUSTEE") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Special Interest, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that is required
to be deposited to effect the Legal Defeasance or Covenant Defeasance, as the
case may be.
Section 8.06 REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium or Special
Interest, if any, or interest on, any Note and remaining unclaimed for two years
after such principal, premium or Special Interest, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) will be discharged from such trust; and the Holder of such
Note will thereafter be permitted to look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, will
thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and the Guarantors' obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; PROVIDED,
HOWEVER, that, if the Company makes any payment of principal of, premium or
Special Interest, if any, or interest on, any Note following the reinstatement
of its obligations, the Company will be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
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Section 9.01 WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
or the Note Guarantees without the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for the assumption of the Company's or a
Guarantor's obligations to Holders and Note Guarantees in the case of a
merger, amalgamation or consolidation or sale of all or substantially
all of the Company's or such Guarantor's assets pursuant to Article 5
or Article 10 hereof, as applicable;
(4) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder;
(5) to comply with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Note Guarantees
or the Notes to any provision of the "Description of Notes" section of
the Offering Memorandum to the extent that such provision in the
"Description of Notes" was intended to be a verbatim recitation of a
provision of this Indenture, the Note Guarantees or the Notes;
(7) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof; or
(8) to allow any Guarantor to execute a supplemental indenture
and/or a Note Guarantee with respect to the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof (to the extent the Trustee requires the Company to deliver such
documents), the Trustee will join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Section 9.01 and to make any further appropriate agreements
and stipulations that may be therein contained, unless such amended or
supplemental indenture directly affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but will not be obligated to, enter into such amended or
supplemental indenture.
Section 9.02 WITH CONSENT OF HOLDERS.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including, without limitation,
Section 3.09, 4.10 and 4.15 hereof) and the Notes and the Note Guarantees, and,
subject to Sections 6.04 and 6.07 hereof, waive any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium or Special Interest, if any, or interest on, the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or waive compliance with any provision of this Indenture or the Notes or the
Note Guarantees, in each case may be waived with the consent of the Holders of
at least a
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majority in aggregate principal amount of the then outstanding Notes (including,
without limitation, Additional Notes, if any) voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof
shall determine which Notes are considered to be "outstanding" for purposes of
this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof (to the extent the
Trustee requires the Company to deliver such documents), the Trustee will join
with the Company and the Guarantors in the execution of any such amended or
supplemental indenture authorized or permitted by terms of this Section 9.02 and
to make any further appropriate agreements and stipulations that may be therein
contained, unless such amended or supplemental indenture directly affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture.
It is not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the
substance thereof. After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company will mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, will not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
Without the consent of each Holder affected, an amendment, supplement
or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter or waive any of the provisions with respect to the
redemption of the Notes (except as provided above with respect to
Sections 3.09, 4.10 and 4.15 hereof);
(3) reduce the rate of or change the time for payment of
interest, including default interest and Additional Amounts, on any
Note;
(4) waive a Default or Event of Default in the payment of
principal of, or premium or Special Interest, if any, or interest on,
the Notes (except pursuant to Section 6.04 hereof a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes and a waiver
of the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in
the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders to
receive payments of principal of, or interest or premium or Special
Interest, if any, on, the Notes;
(7) waive a redemption payment with respect to any Note (other
than a payment required by Sections 3.09, 4.10 or 4.15 hereof);
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(8) release any Guarantor from any of its obligations under
its Note Guarantee or this Indenture, except in accordance with the
terms of this Indenture; or
(9) make any change in the preceding amendment and waiver
provisions.
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes will be
set forth in a amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
will not be obligated to, enter into such amended or supplemental indentures.
The Company may not sign an amended or supplemental indenture until the Board of
Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee will be entitled to receive and (subject to Section 7.01
hereof) will be fully protected in relying upon, in addition to the documents
required by Section 12.04 hereof, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
NOTE GUARANTEES
Section 10.01. GUARANTEE.
(a) Subject to this Article 10, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that:
77
(1) the principal of, premium and Special Interest and
Additional Amounts, if any, and interest on, the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on
the Notes, if any, if lawful, and all other obligations of the Company
to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and
thereof; and
(2) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that 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 any performance
so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives 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 covenant that this Note Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder in respect
of the Notes, the Note Guarantee, to the extent theretofore discharged, will be
reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) will forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee. The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.
Section 10.02. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably
78
agree that the obligations of such Guarantor will be limited to the maximum
amount that will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 10, result
in the obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section 10.03. EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 10.01 hereof, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form attached as Exhibit E hereto will be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 10.01 hereof will remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Restricted Subsidiaries
creates or acquires any Restricted Subsidiary after the date of this Indenture,
if required by Section 4.18 hereof, the Company will cause such Restricted
Subsidiary to comply with the provisions of Section 4.18 hereof and this Article
10, to the extent applicable.
Section 10.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in Section 10.05 hereof, no Guarantor may
sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) either:
(a) subject to Section 10.05 hereof, the Person
acquiring the property in any such sale or disposition or the Person
formed by or surviving any such consolidation, amalgamation or merger
unconditionally assumes all the obligations of that Guarantor under
this Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture reasonably satisfactory
to the Trustee; or
(b) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of
this Indenture, including without limitation, Section 4.10 hereof.
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In case of any such consolidation, amalgamation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person will succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Note Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued will in all respects
have the same legal rank and benefit under this Indenture as the Note Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture
as though all of such Note Guarantees had been issued at the date of the
execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses 2(a) and (b) of this Section 10.04, nothing contained in this Indenture
or in any of the Notes will prevent any consolidation, amalgamation or merger of
a Guarantor with or into the Company or another Guarantor, or will prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
Section 10.05. RELEASES.
(a) In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
amalgamation, consolidation or otherwise, or a sale or other disposition of all
of the Capital Stock of any Guarantor, in each case to a Person that is not
(either before or after giving effect to such transactions) the Company or a
Restricted Subsidiary of the Company, then such Guarantor (in the event of a
sale or other disposition, by way of merger, amalgamation, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Note Guarantee; PROVIDED that the Net Proceeds of
such sale or other disposition are applied in accordance with the applicable
provisions of this Indenture, including without limitation Section 4.10 hereof.
Upon delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of this Indenture, including
without limitation Section 4.10 hereof, the Trustee will execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.
(b) Upon designation of any Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture, such Guarantor will be released and
relieved of any obligations under its Note Guarantee.
(c) Upon Legal Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 11
hereof, each Guarantor will be released and relieved of any obligations under
its Note Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee as provided in this Section 10.05 will remain liable for the full
amount of principal of and interest and premium and Special Interest, if any, on
the Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 10.
ARTICLE 11
SATISFACTION AND DISCHARGE
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Section 11.01 SATISFACTION AND DISCHARGE.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated, except
lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has been deposited in trust and
thereafter repaid to the Company, have been delivered to the Trustee
for cancellation; or
(b) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a combination of
cash in U.S. dollars and non-callable Government Securities, in such
amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness
of the Notes not delivered to the Trustee for cancellation for
principal, premium and Special Interest, if any, and accrued interest
to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing on the date of the deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) and the deposit will not result in a breach or violation of,
or constitute a default under, any other instrument to which the
Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid
all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or on the redemption date, as the case
may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 11.01, the provisions of Sections 11.02 and 8.06 hereof will
survive. In addition, nothing in this Section 11.01 will be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 11.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 8.06 hereof, all money deposited
with the Trustee pursuant to Section 11.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium and
Special Interest, if any) and interest for whose payment such money
81
has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 11.01 hereof; PROVIDED that if the Company has made any
payment of principal of, premium or Special Interest, if any, or interest on,
any Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties will control.
Section 12.02 NOTICES.
Any notice or communication by the Company, any Guarantor the Trustee
to the others is duly given if in writing and delivered in Person or by first
class mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Guarantor:
Riverside Forest Products Limited
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Bull, Housser & Xxxxxx
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, X.X. X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxx
and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxx
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If to the Trustee:
Xxxxx Fargo Bank, National Association
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Corporate Trust Services
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Mar
If to the Escrow Agent
Xxxxx Fargo Bank, National Association
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Services
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) will
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it will mail
a copy to the Trustee and each Agent at the same time.
Section 12.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
83
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
Section 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA ss. 314(e)
and must include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, will have any liability for any obligations
of the Company or the Guarantors under the Notes, this Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the U.S. federal securities laws.
Section 12.08 GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 12.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
84
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 12.10 SUCCESSORS.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 10.05 hereof.
Section 12.11 SEVERABILITY.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 12.12 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 12.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and will in no
way modify or restrict any of the terms or provisions hereof.
Section 12.14 CONSENT TO JURISDICTION
Each of the Company and the Guarantors irrevocably agree that any legal
suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby ("RELATED PROCEEDINGS") may be instituted in
the federal courts of the United States of America located in the City of New
York or the courts of the State of New York in each case located in the Borough
of Manhattan in the City of New York (collectively, the "SPECIFIED COURTS"), and
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"RELATED JUDGMENT"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. The Company and the Guarantors
further agree that service of any process, summons, notice or document by mail
to such party's address set forth above shall be effective service of process
for any lawsuit, action or other proceeding brought in any such court. The
Company and the Guarantors hereby irrevocably and unconditionally waive any
objection to the laying of venue of any lawsuit, action or other proceeding in
the Specified Courts, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such lawsuit, action
or other proceeding brought in any such court has been brought in an
inconvenient forum. Each of the Company and the Guarantors not located in the
United States hereby irrevocably appoints CT Corporation System of New York, New
York, which currently maintains a New York City office at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, as its authorized agent (the
"AUTHORIZED AGENT") to receive service of process or other legal summons for
purposes of any such action or proceeding that may be instituted in any state or
federal court in the City and State of New York. The Company and each of the
Guarantors agree that service of process upon the Authorized Agent and written
notice of such service to the Company shall be deemed, in every respect,
effective service of process upon the Company and/or the Guarantors, as the case
may be.
85
Section 12.15 OBLIGATION CURRENCY.
The obligation of the Company or the Guarantors in respect of any sum
due to any Holder shall, notwithstanding any judgment in a currency other than
U.S. dollars, not be discharged until the first Business Day, following receipt
by such Holder of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Holder may in accordance with normal banking
procedures purchase U.S. dollars with such other currency; if the U.S. dollars
so purchased are less than the sum originally due to such Holder hereunder, the
Company and the Guarantors agree, as a separate obligation and notwithstanding
any such judgment, to indemnify such Holder against such loss.
[Signatures on following page]
86
SIGNATURES
Dated as of February 25, 2004
RIVERSIDE FOREST PRODUCTS LIMITED
By:
-----------------------------------
Name:
Title:
RFP POWER LTD.
By:
-----------------------------------
Name:
Title:
RFP TIMBER LTD.
By:
-----------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Name:
Title:
EXHIBIT A
---------
[Face of Note]
================================================================================
CUSIP/CINS ____________
__% Senior Notes due 2014
No. ___ $____________
RIVERSIDE FOREST PRODUCTS LIMITED
promises to pay to ____________ or registered assigns,
the principal sum of _________________________________________________ DOLLARS
on ________________, 2014.
Interest Payment Dates: ____________ and ____________
Record Dates: ____________ and ____________
Dated: _______________, 20__
RIVERSIDE FOREST PRODUCTS LIMITED
By:
-------------------------------
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
[TRUSTEE],
as Trustee
By:
-----------------------------------
Authorized Signatory
================================================================================
A-1
[Back of Note]
__% Senior Notes due 2014
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF
THE INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE
PROVISIONS OF THE INDENTURE]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated. In this Note, references
to "$" or "dollars" are to Canadian dollars and references to "US$" and "U.S.
dollars" are to United States dollars.
(1) INTEREST. Riverside Forest Products Limited, a British
Columbia, corporation (the "COMPANY"), promises to pay interest on the
principal amount of this Note at ___% per annum from ________________,
20__ until maturity and shall pay the Special Interest, if any, payable
pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company will pay interest and Special Interest, if any,
semi-annually in arrears on March 1 and September 1 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day
(each, an "INTEREST PAYMENT DATE"). Interest on the Notes will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; PROVIDED that if
there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED
FURTHER that the first Interest Payment Date shall be _____________,
20__. The Company will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per
annum in excess of the rate then in effect on the Notes to the extent
lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of
interest and Special Interest, if any, (without regard to any
applicable grace periods) from time to time on demand at the same rate
to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) and Special Interest, if any, to the
Persons who are registered Holders at the close of business on the
February 15 or August 15 next preceding the Interest Payment Date, even
if such Notes are canceled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. If a Holder has given
wire instructions to the Company or the Paying Agent, the Company will
pay all principal, interest, premium and Special Interest, if any, on
that Holder's Notes in accordance with those instructions, or, if no
such wire instructions have been given, the Company will mail a check
to each such Holder's registered address. All other payments on the
Notes will be made at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or,
at the option of the Company, payment of interest and Special Interest,
if any, may be made by check mailed to the Holders at their addresses
set forth in the register of Holders; PROVIDED that payment by wire
transfer of immediately available funds to the accounts specified by
the Depository, or its nominee, will be required with respect to
principal of and interest, premium and Special Interest, if any, on,
all Global Notes. Such payment will be in such coin or currency of the
United States of America as at the time of payment is legal tender for
payment of public and private debts.
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(3) PAYING AGENT AND REGISTRAR. Initially, Xxxxx Fargo Bank,
National Association, the Trustee under the Indenture, will act as
Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an
Indenture, dated as of February 25, 2004 (the "INDENTURE"), among the
Company, the Guarantors and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by
reference to the TIA. The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of
such terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. Except to the extent provided in the
Escrow and Security Agreement, the Notes are unsecured obligations of
the Company. The Company will be entitled to issue Additional Notes
pursuant to Section 2.13 of the Indenture.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraphs (b) and (c)
of this Paragraph 5 and in Paragraph 6, the Company will not have the
option to redeem the Notes prior to March 1, 2009. On or after March 1,
2009, the Company may redeem all or a part of the Notes upon not less
than 10 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Special Interest, if any, on the Notes
redeemed to the applicable redemption date, if redeemed during the
twelve-month period beginning on March 1 of the years indicated below,
subject to the rights of Holders on the relevant record date to receive
interest on the relevant interest payment date:
YEAR PERCENTAGE
---- ----------
2009............................................... 103.938%
2010............................................... 102.625%
2011............................................... 101.313%
2012 and thereafter................................ 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called
for redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph
(a) of this Paragraph 5, at any time prior to March 1, 2007, the
Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of Notes issued under this Indenture at a
redemption price of 107.875% of the principal amount, plus accrued and
unpaid interest and Special Interest, if any, to the redemption date,
with the net cash proceeds of one or more Equity Offerings; PROVIDED
that: (1) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption and (2) the redemption occurs within 90
days of the date of the closing of such Equity Offering.
(c) Notwithstanding the provisions of subparagraph
(a) of this Paragraph 5, the Company may redeem all, but not less than
all, of the Notes at any time at 100% of the aggregate principal amount
of the Notes, plus accrued and unpaid interest and Special Interest, if
any, on the Notes redeemed to the applicable redemption date, if the
Company has become or would become obligated to pay, on the next date
on which any amount would be payable with respect to the
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Notes, any Additional Amounts as a result of a change in the laws or
treaties (including any regulations promulgated thereunder) of Canada
(or any political subdivision or taxing authority thereof or therein),
or any change in any official position regarding the application or
interpretation of such laws, treaties or regulations, which change is,
or has been, publicly announced or becomes, or has become, effective on
or after February 17, 2004.
(6) SPECIAL MANDATORY AND SPECIAL OPTIONAL REDEMPTION.
(a) In the event that the conditions contained in
Section 1.3(b) of the Escrow and Security Agreement have not been
satisfied on or prior to May 25, 2004, the Escrow Property will be
released to the Paying Agent, in accordance with Section 1.3(d) of the
Escrow and Security Agreement, and using the Escrow Property (as
defined in the Escrow and Security Agreement) thereby released, the
Paying Agent will redeem (a "SPECIAL MANDATORY REDEMPTION"), on May 25,
2004, all but not less than all of the Notes then outstanding at a
redemption price equal to 100% of the principal amount of the Notes,
plus accrued and unpaid interest to and including the date of
redemption, upon no less than five Business Days' prior written notice
by first class mail to the Trustee, the Escrow Agent and each Holder.
Notwithstanding the foregoing, this clause (a) of this Paragraph 6
shall be null and void if the Company effects a special optional
redemption pursuant to Section 3.08(c) of the Indenture.
(b) In the event that at any time the Company
determines that the conditions contained in Section 1.3(b) of the
Escrow and Security Agreement will not be satisfied on or prior to May
25, 2004, the Company will be entitled to release the Escrow Property
to the Paying Agent in accordance with Section 1.3(e) of the Escrow and
Security Agreement, and if the Company exercises this option, using the
Escrow Property thereby released, the Paying Agent will effect a
special optional redemption of all but not less than all of the Notes
then outstanding at a redemption price equal to 100% of the principal
amount of the Notes, plus accrued and unpaid interest to and including
the date of redemption, upon no less than five Business Days' prior
written notice by first class mail to the Trustee, the Escrow Agent and
each Holder. Within one Business Day of receipt of such notice by the
Trustee, the Trustee will provide written notice to the Escrow Agent
that the Company has elected to effect a redemption pursuant to Section
3.08(c) of the Indenture.
(c) Upon the release of the Escrow Proceeds pursuant
to Sections 1.3(b) and (c) of the Escrow and Security Agreement, this
Paragraph (6) shall be null and void.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, the Company will
be required to make a Change of Control Offer to each Holder to
repurchase all or any part (equal to US$1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price, to be paid in
cash, equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Special Interest, if any, thereon to
the date of purchase, subject to the rights of Holders on the relevant
record date to receive interest due on the relevant interest payment
date (the "CHANGE OF CONTROL PAYMENT"). Subject to the exceptions in
Section 4.15 of the Indenture, within 10 days following any Change of
Control, the Company will mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary of the
Company consummates any Asset Sales, within five days of each date on
which the aggregate amount of Excess Proceeds exceeds US$10.0 million,
the Company will commence an offer to all Holders and all holders of
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other Indebtedness that is equal in right of payment with the Notes
containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets (an "ASSET SALE OFFER") pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes (including
any Additional Notes) and such other Indebtedness that is equal in
right of payment with the Notes that may be purchased out of the Excess
Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest and Special
Interest, if any, thereon to the date of purchase, in accordance with
the procedures set forth in the Indenture. If any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company may use
those Excess Proceeds for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Notes and other
Indebtedness that is equal in right of payment with the Notes tendered
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other Indebtedness that is
equal in right of payment with the Notes to be purchased on a PRO RATA
basis. Holders that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related
purchase date and may elect to have such Notes purchased by completing
the form entitled "OPTION OF HOLDER TO ELECT PURCHASE" attached to the
Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 10 days (or five days in the case of a special mandatory or
special optional redemption pursuant to Section 3.08 of the Indenture)
but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance
of the Notes or a satisfaction or discharge of the Indenture. Notes in
denominations larger than US$1,000 may be redeemed in part but only in
whole multiples of US$1,000, unless all of the Notes held by a Holder
are to be redeemed.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of US$1,000 and
integral multiples of US$1,000. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar
and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.
Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions set forth in Section 9.02 of the Indenture, the Indenture or
the Notes or the Note Guarantees may be amended or supplemented with
the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes, including Additional
Notes, if any, voting as a single class, and any existing Default or
Event or Default or compliance with any provision of the Indenture or
the Notes or the Note Guarantees may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then
outstanding Notes, including Additional Notes, if any, voting as a
single class. Without the consent of any Holder of a Note, the
Indenture or the Notes or the Note Guarantees may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide
for uncertificated Notes in addition to or in place of certificated
Notes,
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to provide for the assumption of the Company's or a Guarantor's
obligations to Holders of Notes and Note Guarantees in case of a merger
or consolidation or amalgamation or sale of all or substantially all of
the Company's or such Guarantor's assets pursuant to Article 5 or
Article 10, as applicable, of the Indenture, to make any change that
would provide any additional rights or benefits to the Holders of the
Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the
SEC in order to effect or maintain the qualification of the Indenture
under the TIA, to conform the text of the Indenture, the Note
Guarantees or the Notes to any provision of the "Description of Notes"
section of the Offering Memorandum to the extent that such provision in
that "Description of Notes" was intended to be a verbatim recitation of
a provision of the Indenture, the Note Guarantees or the Notes; to
provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture, or to allow any Guarantor to
execute a supplemental indenture to the Indenture and/or a Note
Guarantee with respect to the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest on, or Special
Interest, if any, with respect to the Notes; (ii) default in the
payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes, (iii) failure by the
Company or any of its Restricted Subsidiaries to comply with the
provisions of Sections 4.10, 4.15 or 5.01 of the Indenture; (iv)
failure by the Company or any of its Restricted Subsidiaries to comply
with any of the other agreements in the Indenture for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding voting as a
single class; (v) default under any mortgage, indenture or instrument
under which there may be issued or by there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date of
the Indenture, if that default (A) is a Payment Default or (B) results
in the acceleration of such Indebtedness prior to its express maturity,
and in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $15.0 million or more; (vi) failure by
the Company or any of its Restricted Subsidiaries to pay final
judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $15.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days; (vii) failure to comply
with, or the breach of, any material provision of the Escrow and
Security Agreement, PROVIDED that the invalidity of the Trustee's
security interest in the assets contained in the Escrow Property will
automatically constitute an Event of Default; (viii) failure to comply
with the provisions of Section 3.08 of the Indenture; (ix) if on or
prior to the 90th day after the date of the Indenture, any one or more
of the following has not occurred: (A) the Acquisition has been
consummated on substantially the same terms described in the Offering
Memorandum, (B) Lignum and each of its Subsidiaries (other than any
Immaterial Subsidiaries), if any, has executed a supplemental
indenture, whereby they have fully and unconditionally guaranteed the
Notes, (C) Lignum and each of its Subsidiaries (other than any
Immaterial Subsidiaries), if any, has become party to the Purchase
Agreement and the Registration Rights Agreement, (D) the Company's
existing revolving credit facilities have been repaid in full with
Escrow Property and terminated; (E) the repayment in full (with Escrow
Property) and retirement of each of the Company's 8.64% Senior Notes
due 2004, 8.86% Senior Notes due 2004 and 8.80% Senior Notes due 2007
in a manner that complies with the combined requirements of the Limited
Waiver, dated as of February 2, 2004, among the Company and the other
parties thereto, and Section 9.2 of the Amended and Restated Note
Purchase Agreement, originally dated as of May 24, 1996, and amended
and restated as of May 27, 1999, among the Company and the other
parties thereto; (F) the Credit Agreement has been entered into by the
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parties thereto on substantially the same terms described in the
Offering Memorandum; (x) certain events of bankruptcy or insolvency
with respect to the Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary; and
(xi) except as permitted by the Indenture, any Note Guarantee is held
in any judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect, or any Guarantor, or any
Person acting on behalf of any Guarantor, denies or disaffirms its
obligations under its Note Guarantee. If any Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare
all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency or clause (ix) of this Paragraph 12,
all outstanding Notes will become due and payable immediately without
further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest or
premium or Special Interest, if any,) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee
may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event
of Default in the payment of interest or premium or Special Interest,
if any, on, or the principal of, the Notes. The Company is required to
deliver to the Trustee annually a statement regarding compliance with
the Indenture, and the Company is required, upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
(13) ADDITIONAL AMOUNTS. Any reference in this Note to the
payment of principal, premium or Special Interest, if any, redemption
price, Change of Control Payment, purchase price, interest or any other
amount payable under or with respect to such Note, will be deemed to
include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable
in respect thereof. The Company's obligation to make payments of
Additional Amounts will survive any termination of this Note or the
defeasance of any rights hereunder.
(14) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.
(15) NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or stockholder of the Company or any Guarantor,
as such, will have any liability for any obligations of the Company or
the Guarantors under this Note, the Indenture, the Note Guarantees or
for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting this Note
waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the U.S. federal securities laws.
(16) AUTHENTICATION. This Note will not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
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(17) ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(18) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE Notes. In addition to the rights provided to
Holders under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes will have all the rights set forth in the
Registration Rights Agreement dated as of February 25, 2004, among the
Company, the Guarantors and the Initial Purchasers, as such agreement
may be amended, modified or supplemented from time to time and, with
respect to any Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes will have the rights set forth in one or
more registration rights agreements, if any, among the Company and the
other parties thereto, relating to rights given by the Company to the
purchasers of any Additional Notes (collectively, the "REGISTRATION
RIGHTS AGREEMENT").
(19) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes, and the
Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification
numbers placed thereon.
(20) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK
WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE
NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(21) OBLIGATION CURRENCY. The obligation of the Company in
respect of any sum due to any Holder shall, notwithstanding any
judgment in a currency other than U.S. dollars, not be discharged until
the first business day, following receipt by such Holder of any sum
adjudged to be so due in such other currency, on which (and only to the
extent that) such Holder may in accordance with normal banking
procedures purchase U.S. dollars with such other currency; if the U.S.
dollars so purchased are less than the sum originally due to such
Holder hereunder, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Holder against
such loss.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Riverside Forest Products Limited
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature: ___________________________________
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee*: _________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
[_] Section 4.10 [_] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$________________
Date: _______________
Your Signature: ___________________________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.: ___________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
of This Global Note Signature of
Amount of Decrease Amount of Increase in Following Such Authorized Officer
in Principal Amount Principal Amount Decrease (Or of Trustee or
Date of Exchange of This Global Note of This Global Note Increase) Custodian
---------------- ------------------- --------------------- ------------------- ------------------
* THIS SCHEDULE SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
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EXHIBIT B
---------
FORM OF CERTIFICATE OF TRANSFER
Riverside Forest Products Limited
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Chief Financial Officer
Xxxxx Fargo Bank, National Association
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxxx.: Corporate Trust Services
Re: 7-7/8% Senior Notes due 2014
Reference is hereby made to the Indenture, dated as of February 25,
2004 (the "INDENTURE"), among Riverside Forest Products Limited, as issuer (the
"COMPANY"), the Guarantors party thereto and Xxxxx Fargo Bank, National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture. References to "$" or "dollars"
are to Canadian dollars and references to "US$" and "U.S. dollars" are to United
States dollars.
___________________, (the "TRANSFEROR") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of US$___________ in such Note[s] or interests (the
"TRANSFER"), to ___________________________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO
RULE 144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for
its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made
to a Person in the United States and (x) at the time the buy order was
originated, the Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the
transaction is not part of a plan or scheme to evade the registration
B-1
requirements of the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the
Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to
the Indenture and (2) if such Transfer is in respect of a principal
amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification),
to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Restricted Definitive
Notes and in the Indenture and the Securities Act.
4. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [_] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of
B-2
the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(b) [_] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [_] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
---------------------------------
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP _________); or
(b) [_] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP _________), or
(iii) [_] IAI Global Note (CUSIP _________); or
(iv) [_] Unrestricted Global Note (CUSIP _________); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
---------
FORM OF CERTIFICATE OF EXCHANGE
Riverside Forest Products Limited
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Chief Financial Officer
Xxxxx Fargo Bank, National Association
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxxx.: Corporate Trust Services
Re: 7-7/8% Senior Notes due 2014
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of February 25,
2003 (the "INDENTURE"), among Riverside Forest Products Limited, as issuer (the
"COMPANY"), the Guarantors party thereto and Xxxxx Fargo Bank, National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture. References to "$" or "dollars"
are to Canadian dollars and references to "US$" and "U.S. dollars" are to United
States dollars.
__________________________, (the "OWNER") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of US$____________ in such Note[s] or interests (the "EXCHANGE"). In
connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "SECURITIES ACT"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
C-1
(c) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
[CHECK ONE] 144A Global Note, Regulation S Global Note, IAI Global Note with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-------------------------------
[Insert Name of Transferor]
C-2
By:
---------------------------
Name:
Title:
Dated: ______________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Riverside Forest Products Limited
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Chief Financial Officer
Xxxxx Fargo Bank, National Association
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Corporate Trust Services
Re: 7-7/8% Senior Notes due 2014
Reference is hereby made to the Indenture, dated as of February 25,
2004 (the "INDENTURE"), among Riverside Forest Products Limited, as issuer (the
"COMPANY"), the guarantors party thereto and Xxxxx Fargo Bank, National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture. References to "$" or "dollars"
are to Canadian dollars and references to "US$" and "U.S. dollars" are to United
States dollars.
In connection with our proposed purchase of US$____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Note, or
(b) [_] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the
D-1
EXHIBIT D
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
D-2
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
________________________________________
[Insert Name of Accredited Investor]
By:_____________________________________
Name:
Title:
Dated: _______________________
D-3
EXHIBIT E
[FORM OF NOTATION OF GUARANTEE]
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, dated as of February 25, 2004 (the "Indenture"),
among Riverside Forest Products Limited, (the "COMPANY"), the Guarantors party
thereto and Xxxxx Fargo Bank, National Association, as trustee (the "TRUSTEE"),
(a) the due and punctual payment of the principal of, premium and Special
Interest and Additional Amounts, if any, and interest on, the Notes, whether at
maturity, by acceleration, redemption or otherwise, the due and punctual payment
of interest on the overdue principal of and interest on the Notes, if any, if
lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee all in accordance with the terms of the
Indenture and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that 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. The
obligations of the Guarantors to the Holders and to the Trustee pursuant to the
Note Guarantee and the Indenture are expressly set forth in Article 10 of the
Indenture and reference is hereby made to the Indenture for the precise terms of
the Note Guarantee.
Capitalized terms used but not defined herein have the meanings given
to them in the Indenture.
[NAME OF GUARANTOR(S)]
By:_____________________________________
Name:
Title:
E-1
EXHIBIT F
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
________________, 2004, among __________________ (the "GUARANTEEING
SUBSIDIARY"), a subsidiary of Riverside Forest Products Limited (or its
permitted successor), a British Columbia, Canada, corporation (the "COMPANY"),
the Company, the other Guarantors (as defined in the Indenture referred to
herein) and ____________, as trustee under the Indenture referred to below (the
"TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "INDENTURE"), dated as of February 25, 2004 providing
for the issuance of 7-7/8% Senior Notes due 2014 (the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "NOTE GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees to provide an unconditional Guarantee on the terms and subject to the
conditions set forth in the Note Guarantee and in the Indenture, including but
not limited to Article 10 of thereof.
4. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Guaranteeing Subsidiary, as such, will have
any liability for any obligations of the Guaranteeing Subsidiary under the Note,
the Note Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. The waiver may not be effective to waive liabilities under the U.S.
federal securities laws.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
F-1
6. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
9. CONSENT TO JURISDICTION. Each of the Company, the Guarantors
and the Guaranteeing Subsidiary irrevocably agree that any legal suit, action or
proceeding arising out of or based upon this Supplemental Indenture or the
transactions contemplated hereby ("RELATED PROCEEDINGS") may be instituted in
the federal courts of the United States of America located in the City of New
York or the courts of the State of New York in each case located in the Borough
of Manhattan in the City of New York (collectively, the "SPECIFIED COURTS"), and
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"RELATED JUDGMENT"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. The Company, the Guarantors and
the Guaranteeing Subsidiary further agree that service of any process, summons,
notice or document by mail to such party's address set forth above shall be
effective service of process for any lawsuit, action or other proceeding brought
in any such court. The Company, Guarantors and the Guaranteeing Subsidiary
hereby irrevocably and unconditionally waive any objection to the laying of
venue of any lawsuit, action or other proceeding in the Specified Courts, and
hereby further irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such lawsuit, action or other proceeding
brought in any such court has been brought in an inconvenient forum. Each of the
Company, the Guarantors and the Guaranteeing Subsidiary not located in the
United States hereby irrevocably appoints CT Corporation System of New York, New
York, which currently maintains a New York City office at 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, as its authorized agent (the
"AUTHORIZED AGENT") to receive service of process or other legal summons for
purposes of any such action or proceeding that may be instituted in any state or
federal court in the City and State of New York. The Company, the Guarantors and
the Guaranteeing Subsidiary agree that service of process upon the Authorized
Agent and written notice of such service to the Company, the Guarantors and the
Guaranteeing Subsidiary shall be deemed, in every respect, effective service of
process upon the Company, the Guarantors and the Guaranteeing Subsidiary.
10. OBLIGATION CURRENCY. The obligation of the Guaranteeing
Subsidiary in respect of any sum due to any Holder shall, notwithstanding any
judgment in a currency other than U.S. dollars, not be discharged until the
first business day, following receipt by such Holder of any sum adjudged to be
so due in such other currency, on which (and only to the extent that) such
Holder may in accordance with normal banking procedures purchase U.S. dollars
with such other currency; if the U.S. dollars so purchased are less than the sum
originally due to such Holder hereunder, the Guaranteeing Subsidiary agree, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Holder against such loss.
F-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By:_____________________________________
Name:
Title:
[COMPANY]
By:_____________________________________
Name:
Title:
[EXISTING GUARANTORS]
By:_____________________________________
Name:
Title:
[TRUSTEE],
as Trustee
By:_____________________________________
Authorized Signatory
F-3
